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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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