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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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