☢ test - Í

other grounds, 281 Ga. 306, 637 S.E.2d 706 (November 20, 2006). Scandrett v. State, 279 Ga. 632, 619 S.E.2d 603 (September 19, 2005). “[Thirty-one] months elapsed between the arrest, which preceded the indictments, and the assertion of the denial of the right to a speedy trial. However, Scandrett’s prosecution cannot be considered as having been delayed for that entire period. The original indictments were nol prosed in May of 2002, and Scandrett was not reindicted until June of 2003. ‘[W]hen defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause.’ United States v. Loud Hawk, 474 U.S. 302, 312(II), 106 S.Ct. 648, 88 L.Ed.2d 640 (1986). Thus, the 13-month period between May of 2002 and June of 2003 must be eliminated from consideration in determining the length of delay in his prosecution.” Of the remaining 18 months, defendant was in federal custody, unavailable to the State, for nine months. “In Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), the Supreme Court of the United States held that, even though an accused is in federal custody, his constitutional right to a speedy trial is violated if he demands to be tried on a pending state charge and the prosecution thereafter fails ‘to make a diligent, good-faith effort to bring him before the ... court for trial.’ Those circumstances are not present here” – defendant made no demand for state trial while in federal custody, yet the State tried, but failed, to obtain his presence. With no impairment of his defense or other prejudice, trial court did not err in denying defendant’s constitutional speedy trial claim. Accord, Herndon (January 25, 2006), above; Higgins v. State , 308 Ga.App. 257, 707 S.E.2d 523 (March 8, 2011). Bass v. State, 275 Ga.App. 259, 620 S.E.2d 184 (August 8, 2005). No violation of defendant’s right to speedy trial despite almost five year delay in DUI prosecution. 1. Trial court could conclude that delay was equally attributable to defense and state: “The case was a difficult one to bring to trial because Bass was a busy local defense attorney, and the prosecutor would not consider bringing Bass’s case to trial in any week in which the prosecutor was trying a case against Bass. Bass’s counsel was also married to one of only two judges sitting in the judicial circuit where Bass was to be tried, which required the case to be tried by the remaining judge. The district attorney testified that Bass’s case was on a priority calendar for June of 2002, and the state was ready to go forward with trial, but defense counsel asked for a continuance, which was granted. After that time, the case was delayed by an incapacitating injury to the district attorney and the subsequent recusal of both the district attorney’s office and the first judge assigned to hear the case.” 2. Trial court could find that defense was not prejudiced despite destruction of blood sample and crime lab’s analytical file during four- plus year delay. “The trial court noted that all witnesses required for trial, including the chemist, were still available. The trial court further found that the defense had waited over four years to request the lab records and other data documents and the state did nothing to keep them from getting these documents. Specifically, the chemist testified that the analytical data is ‘probably still on the instrument’ in electronic form and could be regenerated despite the destruction of the paper file. Moreover, although the blood sample was lost, there is no evidence it was destroyed by the lab in bad faith as opposed to in the due course of lab operations. … The delay in bringing this case trial presents a risk of impairment to Bass’s defense, but this factor alone did not demand the case be dismissed. ” State v. Sutton, 273 Ga.App. 84, 614 S.E.2d 206 (April 21, 2005). Trial court did not abuse its discretion in finding that defendant’s Sixth Amendment right to speedy trial was violated by unexplained seven-year delay in prosecuting his murder indictment. “The delay in this case, of approximately seven years, can be described as egregious. See Brannen v. State , 274 Ga. 454, 455, 553 S.E.2d 813 (2001).” “Unexplained delay is construed against the state [Cit.] and, therefore, must be considered the result of the state’s negligence. [Cit.]” “ Barker explicitly recognized that impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony can rarely be shown. And though time can tilt the case against either side, one cannot generally be sure which of them it has prejudiced more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. Doggett [ v. United States,505 U.S. 647, 655-656, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) ] (citations and punctuation omitted).”See other cases on presumption of actual prejudice collected under Hayes (June 15, 2009), above. Williams v. State, 279 Ga. 106, 610 S.E.2d 32 (February 21, 2005). “Our appellate courts have generally held that when a defendant is already incarcerated for unrelated offenses, there is minimal possibility of oppressive pretrial incarceration. See, e.g., Salahuddin v. State, 277 Ga. 561, 563(2), 592 S.E.2d 410 (2004) (no oppressive pretrial incarceration, as [defendant] was already in prison due to his conviction for an unrelated crime); Treadwell v. State, 233 Ga. 468, 470, 211 S.E.2d 760 (1975) (‘defendant in this case was incarcerated for another offense and therefore the oppressive pretrial incarceration interest did not apply to him’); Daughenbaugh v. State, 225 Ga.App. 7, 10, 482 S.E.2d 517 (1997) (‘[i]n light of the long Kentucky sentence [defendant] was [already] serving, [defendant] produced no evidence of pretrial incarceration attributable to the State’s delay’); Cothern v. State, 195 Ga.App. 513, 515(2), 393 S.E.2d 763 (1990)