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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. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

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