Newstrack: Hearing set for next month in car-assault case

Background

Kyle Orth, 27, is accused of accelerating his car toward police following a short chase, and then was shot by officers on March 29. He has been charged with assault on a peace officer with a dangerous weapon, interference with official acts while attempting to inflict serious injury, operating a vehicle while intoxicated and two counts of eluding in Linn County District Court.

What's happened since

Orth is asking the court to dismiss the charges, claiming a violation of his speedy indictment right to have formal charges filed within 45 days of the arrest.

Tom Viner, Orth's lawyer, argues in the motion that Orth was arrested on March 29 and the complaint wasn't filed until June 4 and the trial information wasn't filed until July 2.

Viner also is asking a judge to not allow any evidence at trial relating to his statements made to police and body specimen test results for intoxication.

He asks the court to set a hearing on the motion.

Linn County Attorney Jerry Vander Sanden argues there hasn't been a 45-day violation. Orth was never arrested on the charges filed in the trial information. Orth was permitted to voluntarily appear with his lawyer on June 5 for his initial appearance on the complaint.

Vander Sanden intends to present evidence at the hearing that will show Orth was taken to UnityPoint Health-St. Luke's Hospital to be treated for injuries when police fired their weapons at him after he accelerated his car toward them.

While at the hospital, Orth told police he wanted to be taken to the police department so he could give his account of the incident, Vander Sanden said in the motion. Investigators took Orth to the department and interviewed him, but he was told he wasn't in custody and not under arrest.

After the interview, the investigators drove him home, pending results of the Iowa Division of Criminal Investigation.

Vander Sanden also argues the suppression of evidence should be denied because Orth doesn't specify which statements or which test results shouldn't be allowed at trial.

Orth, who had worked as a salesman at Zimmerman Auto Center, was driving a borrowed orange BMW from the dealership on March 29. He went up to 30 mph in reverse and then 'rapidly accelerated' forward at two police officers who fired at him when he ignored their orders to surrender, according to DCI investigation.

Vander Sanden, who reviewed the case, found officers Jeremy Depies and Brandon Tinta were 'justified in using deadly force.' Vander Sanden stated in the report that it was reasonable for the officers to believe 'such force was necessary.'

In an earlier interview with The Gazette, Orth denied he was driving toward the officers.

The suppression hearing is set for Nov. 3, and his trial has been reset to Dec. 7 in Linn County District Court.