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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. 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!!!

  2. 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?

  3. 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?

  4. 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.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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