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Ongoing appeal could impact IMPD officer's case

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An Indiana Court of Appeals decision from last fall could prove to be a game-changer for how the state’s largest county handles the high-profile prosecution of a police officer accused of drunk driving that resulted in one death and other injuries.

In office less than two weeks, Marion County’s new prosecutor Terry Curry followed through on what was one of his campaign promises to refile charges against Indianapolis Metropolitan Police Department officer David Bisard, who in early August crashed into a group of motorcyclists and killed one person and injured two others.

A blood alcohol test showed Bisard had a blood-alcohol content level of 0.19 two hours after the crash, more than twice the legal limit to drive. But a mishandling by police on where the blood test occurred led former prosecutor Carl Brizzi to dismiss the alcohol-related charges. State statute says blood drawn outside of hospitals must be taken by certain medical professionals, and in this case the police took Bisard to a non-certified lab and that led Brizzi to decide he couldn’t use that evidence in court.

Following the accident in early August, Brizzi on Aug. 11 filed six alcohol-related charges against Bisard in addition to a reckless homicide charge. But Brizzi dropped the alcohol charges later that same month, citing the blood draw issue as the reason. That led to public outcries about a possible cover-up, and during his campaign Curry pledged to refile charges against Bisard if elected.

Earlier this week, Curry filed in Marion Superior 5 a motion to dismiss the remaining charges against Bisard and refiled them, as allowed by Indiana Code 35-34-1-13. But he said a recent Court of Appeals case gives him a different reading of state statute on whether the controversial blood draw can be used in this case.

“The decision to dismiss and re-file is not based in prosecutorial vindictiveness, nor is it an abuse of prosecutorial discretion,” the motion says. “The undersigned in previous statements made it clear that his legal interpretation of Indiana statutes and case law pertaining to the admissibility of the blood draw in this case differed from that of his predecessor. Further, after the OVWI counts were dismissed by the prior administration the Court of Appeals decided the case of Temperly v. State, 933 N.E. 2d 558 (Ind. Ct. App. 2010).”

Decided on Sept. 9 about three weeks after Brizzi had dropped those specific charges, the court’s ruling in Temperly held that BAC evidence is admissible at any proceeding concerning a drunk driving offense under Indiana Code 9-30-5-5 as long as it’s obtained within the requisite time limit. Unlike Bisard’s case, though, the Temperly appeal involved a driver who was taken to a hospital for the blood draw and most significantly delved into whether specific blood draw evidence could be used under 9-30-5-5 criminal prosecutions when consent issues under other state statute existed.

The Temperly case remains ongoing at the appellate level, with the Court of Appeals denying a rehearing request late last year and a transfer request filed with the Indiana Supreme Court on Jan. 3. What happens with that appeal may or may not ultimately impact the Bisard case, which is before Marion Superior Judge Grant Hawkins.

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  1. Paul Ogden doing a fine job of remembering his peer Gary Welsh with the post below and a call for an Indy gettogether to celebrate Gary .... http://www.ogdenonpolitics.com/2016/05/indiana-loses-citizen-journalist-giant.html Castaways of Indiana, unite!

  2. It's unfortunate that someone has attempted to hijack the comments to promote his own business. This is not an article discussing the means of preserving the record; no matter how it's accomplished, ethics and impartiality are paramount concerns. When a party to litigation contracts directly with a reporting firm, it creates, at the very least, the appearance of a conflict of interest. Court reporters, attorneys and judges are officers of the court and must abide by court rules as well as state and federal laws. Parties to litigation have no such ethical responsibilities. Would we accept insurance companies contracting with judges? This practice effectively shifts costs to the party who can least afford it while reducing costs for the party with the most resources. The success of our justice system depends on equal access for all, not just for those who have the deepest pockets.

  3. As a licensed court reporter in California, I have to say that I'm sure that at some point we will be replaced by speech recognition. However, from what I've seen of it so far, it's a lot farther away than three years. It doesn't sound like Mr. Hubbard has ever sat in a courtroom or a deposition room where testimony is being given. Not all procedures are the same, and often they become quite heated with the ends of question and beginning of answers overlapping. The human mind can discern the words to a certain extent in those cases, but I doubt very much that a computer can yet. There is also the issue of very heavy accents and mumbling. People speak very fast nowadays, and in order to do that, they generally slur everything together, they drop or swallow words like "the" and "and." Voice recognition might be able to produce some form of a transcript, but I'd be very surprised if it produces an accurate or verbatim transcript, as is required in the legal world.

  4. Really enjoyed the profile. Congratulations to Craig on living the dream, and kudos to the pros who got involved to help him realize the vision.

  5. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

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