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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. dsm 5 indicates that a lot of kids with gender dysphoria grow out of it. so is it really a good idea to encourage gender reassignment? Perhaps that should wait for the age of majority. I don't question the compassionate motives of many of the trans-advocates, but I do question their wisdom. Likewise, they should not question the compassion of those whose potty policies differ. too often, any opposition to the official GLBT agenda is instantly denounced as "homophobia" etc.

  2. @ President Snow, like they really read these comments or have the GUTS to show what is the right thing to do. They are just worrying about planning the next retirement party, the others JUST DO NOT CARE about what is right. Its the Good Ol'Boys - they do not care about the rights of the mother or child, they just care about their next vote, which, from what I gather, the mother left the state of Indiana because of the domestic violence that was going on through out the marriage, the father had three restraining orders on him from three different women, but yet, the COA judges sent a strong message, go ahead men put your women in place, do what you have to do, you have our backs... I just wish the REAL truth could be told about this situation... Please pray for this child and mother that God will some how make things right and send a miracle from above.

  3. I hear you.... Us Christians are the minority. The LGBTs groups have more rights than the Christians..... How come when we express our faith openly in public we are prosecuted? This justice system do not want to seem "bias" but yet forgets who have voted them into office.

  4. Perhaps the lady chief justice, or lady appellate court chief judge, or one of the many female federal court judges in Ind could lead this discussion of gender disparity? THINK WITH ME .... any real examples of race or gender bias reported on this ezine? But think about ADA cases ... hmmmm ... could it be that the ISC actually needs to tighten its ADA function instead? Let's ask me or Attorney Straw. And how about religion? Remember it, it used to be right up there with race, and actually more protected than gender. Used to be. Patrick J Buchanan observes: " After World War II, our judicial dictatorship began a purge of public manifestations of the “Christian nation” Harry Truman said we were. In 2009, Barack Obama retorted, “We do not consider ourselves to be a Christian nation.” Secularism had been enthroned as our established religion, with only the most feeble of protests." http://www.wnd.com/2017/02/is-secession-a-solution-to-cultural-war/#q3yVdhxDVMMxiCmy.99 I could link to any of my supreme court filings here, but have done that more than enough. My case is an exclamation mark on what PJB writes. BUT not in ISC, where the progressives obsess on race and gender .... despite a lack of predicate acts in the past decade. Interested in reading more on this subject? Search for "Florida" on this ezine.

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