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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. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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