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COA rules trial court erred in suppressing blood evidence in Bisard case

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The blood of the Indianapolis Metropolitan Police Department officer accused of driving drunk and killing one motorcyclist and injuring two others should be allowed at his trial for reckless homicide and other alcohol-related charges, the Indiana Court of Appeals ruled Wednesday morning on interlocutory appeal.  

Senior Judge Randall Shepard authored the unanimous 21-page decision in which the appellate court found that the medical assistant who drew David Bisard’s blood did so in a way that followed physician-approved protocols. Bisard moved to suppress the blood test, claiming that Michelle Maga hadn’t followed appropriate protocols and Indiana Code prohibits medical assistants from drawing blood for the purposes of his case.

Bisard was on duty in his patrol car in August 2010 when he hit two motorcycles stopped at an intersection in Indianapolis. Eric Wells died, and Mary Mills and Kurt Weekly were seriously injured. Bisard was taken to Methodist Occupational Health Center where he consented to the blood draw which was performed by Maga.

Test results showed a blood alcohol content of 0.19. Bisard was initially charged with several alcohol-related charges, including Class B felony operating a motor vehicle with a BAC of 0.15 or higher causing death, and reckless homicide. But then-Marion County Prosecutor Carl Brizzi dismissed the alcohol-related charges. When newly elected prosecutor Terry Curry took office, he re-filed six operating while intoxicated charges.

Marion Superior Judge Grant Hawkins in May 2011 found that Maga wasn’t qualified to draw blood under the state’s implied consent statutes, there was no clear evidence she followed any of MOHC’s protocols for drawing blood, there was conflicting evidence if the tubes of blood were properly handled, and there were questions whether the blood was drawn from the right arm which Maga had inadvertently swabbed with alcohol or the left arm that she swabbed using the proper cleansing solution.

Hawkins did not allow the evidence for the DUI charges, but allowed it for the reckless homicide count.

Indiana Code 9-30-6 and -7 indicate that blood evidence is generally admissible subject to rules of evidence, Shepard wrote, and the spirit of the Indiana Rules of Evidence is to allow any relevant evidence, unless barred by Rule 403. Rule 403 has not been implicated in this case, he wrote.

Maga’s taking of Bisard’s blood conformed to a protocol prepared by a physician, the judges ruled, and Maga testified that she did gently invert the tubes eight to 10 times to mix the blood as required and that she drew his blood from the arm swabbed with the proper cleansing solution. An affidavit from an officer who did not witness the blood draw said another officer told him that Maga took the blood from the wrong arm, but “a probable cause affidavit signed by someone who was not present holds little to no weight on this point,” Shepard wrote.

The judges also found that the fact the person who draws the blood is not on the list in subsection I.C. 9-30-6-6(j) does not compel suppression.

“This is not to say that anyone may draw blood or that it may be drawn in any manner. Rather, subsection (j) tells us that blood may be drawn at a licensed hospital or by certain people if not at a licensed hospital. To the extent that someone else draws blood, the evidence must show that the person is properly trained and performed the draw in a medically acceptable manner. Here, Maga had been trained to obtain bodily substance samples and performed blood draws every day in her position as a medical assistant,” he wrote.

The judges also declined to suppress the blood evidence regarding Bisard’s reckless homicide charge. They sent the case back to Hawkins for further proceedings.

 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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