Bad blood: Is blood evidence against David Bisard flawed?

Blood evidence in DUI case plagued with questions

In the investigation following the fatal crash involving suspended IMPD Officer David Bisard, the blood tests have often taken center stage.

Just two days after the crash, the defense was raising questions about the validity of Bisard's blood draw.

Two days later, it was revealed that Bisard's post-crash blood test showed a blood-alcohol level of 0.19 percent, more than twice the legal limit.

The blood work, which could be pivotal evidence in the case against Bisard, has been subject to years of scrutiny.

 

Was the blood draw legal?

Under Indiana law, anyone involved in a fatality wreck or one involving serious bodily injury is subject to a blood draw. It's also the policy of Indianapolis police to draw the blood of officers involved in crashes.

However, officers' blood test results can be used only for interdepartmental purposes, not criminal proceedings, per a U.S. Supreme Court ruling.

So unless Bisard consented to have his blood drawn for purposes other than an internal investigation, some argue that the results of the test should be inadmissible in court.

"If they didn't have a search warrant and Officer Bisard did not give a valid legal consent for the use of that evidence against him in a criminal case, the state is going to have a very difficult time being allowed to introduce that blood draw into evidence in a criminal charge," said defense lawyer Jack Crawford, who is not involved in Bisard's case.

 

Was the blood draw botched?

On Aug. 19, 2010, Marion County Prosecutor Carl Brizzi said he would drop Bisard's alcohol-related charges because the blood draw was improperly taken and would not be admissible.

"It wasn't conducted at a hospital, as it's defined under the statute, and it wasn't performed by someone who has the legal requirements necessary," Brizzi said, adding that a lab tech at a clinic performed the draw.

It later came to light that the technician at the occupational clinic where the blood draw was taken first mistakenly cleaned Bisard's arm with rubbing alcohol, instead of an antiseptic, and then attempted to collect samples using two vials with expired freshness dates, sources told RTV6 reporter Jack Rinehart.

Lawrence police Lt. Stan Stephens, a member of the multi-jurisdictional Fatal Alcohol Crash Team, was with Bisard at the time of the blood draw, and he corrected the technician on both counts, sources said.

But Stephens, who was supposed to deliver the blood samples to the Indianapolis police property room, first had lunch and then visited a friend at the nearby Arrestee Processing Center, delaying the delivery by more than an hour, sources said.

A member of the Marion County Crime Lab said it's highly unlikely the delay in getting the evidence to the lab and its potential exposure to adverse heat and weather conditions affected the quality of the result.

The Fraternal Order of Police blamed the prosecutor's office for failing to properly update fatal crash investigators on a recent change in state law making it mandatory for all blood draws to be taken at a hospital.

But Marion County Chief Trial Deputy David Wyser said police broke with longstanding protocol when they took Bisard to a clinic instead of to Wishard Memorial Hospital.

"There's been thousands and thousands of cases where that's occurred, 600 last year. Not a single blood draw, not a single blood draw was done at a clinic, other than Officer Bisard," Wyser said.

An internal investigation was conducted to discover why Bisard was taken to a clinic.

"The decision to send him to Methodist Occupational Health Center was not based on anything other than conflicting policies, which we as an agency have to clarify in the future as we move forward," Deputy Chief Valerie Cunningham said in November 2010.

Cunningham said investigators determined that conflicting policies within IMPD led to Bisard being taken to an occupational clinic, rather than a hospital, as dictated by law.

 

What's the deal with the second vial?

In addition to the problems with how the two vials of blood were obtained, there were problems with how the second vial of blood was stored.

In February 2012, Marion County prosecutors filed a motion to test the second vial of blood, which had been kept refrigerated in the police property room, for alcohol and DNA.

"The state believes that testing the second vial of the defendant's blood to determine the ethyl alcohol content is necessary to affirm the accuracy and authenticity of the initial blood alcohol content results," the motion said.

Prosecutors said they believed the defense might try to contend that the original vial of blood did not belong to Bisard.

"While the state has confidence in the Indianapolis-Marion County Forensic Services Agency, the state believes the defense will make an issue of the second vial at trial if it is not tested for the presence of ethyl alcohol," the motion said.

In April of 2012, a Marion County judge's ruling gave the state the authority to conduct DNA testing on the first vial and test the second vial for

alcohol and DNA.

Days later, Mayor Greg Ballard and Public Safety Director Frank Straub held a news conference announcing that the second vial of blood had been transferred to the property annex room at the police academy in November 2011, where it was not properly refrigerated, and where it remained until April 2012.

"I want to express how angry and disgusted I am that this happened," Ballard said. "The mishandling of evidence in this case erodes the public's confidence in this police department."

"At best, this matter shows gross incompetence and at worst, possible criminal intent," Ballard said.

In June of 2012, it was announced that the Department of Public Safety's internal investigation found no criminal intent in Bisard blood mishandling. The FBI declined to launch its own investigation.

Bisard's attorney John Kautzman filed a motion to have the blood tests blocked.

"There can be no doubt that this blood sample is tainted beyond repair and a test of the blood would produce an unreliable and unusable result," he said.

But a July 2012 ruling from Judge Grant Hawkins said the seal on the second vial of blood was not broken, so it could be tested for alcohol.

Hawkins ordered it to be tested at an independent lab in Texas, but the cost of closing the lab for a day was prohibitive.

At a hearing, it was decided that the blood would be kept in Indianapolis and tested at the Marion County Crime Lab.

The prosecution asked that a toxicologist, in addition to the lab's chemists, be on hand to assess the effect of several months that the blood was left un-refrigerated.

 

So, can the blood be used as evidence?

In short, yes, but arriving at that conclusion was a years-long process.

Aug. 13, 2010: The defense files a motion questioning whether the blood can be used as evidence against Bisard in a criminal investigation.

Aug. 19, 2010: Marion County Prosecutor Carl Brizzi decides to drop the alcohol-related charges, saying the blood draw was improperly taken and would not be admissible.

Oct. 29, 2010: Brizzi says he will file a motion to allow Bisard's blood-alcohol test into evidence to help back up the reckless homicide charge.

Jan. 12, 2011: New prosecutor Terry Curry says he will re-file alcohol-related charges against Bisard. Curry said he believes the admissibility of the blood results should be determined by a judge -- not Brizzi -- and that's why he decided to re-file alcohol-related charges.

Feb. 4, 2011: Defense again files to have alcohol-related charges dropped.

May 31, 2011: Marion Superior Court Judge Grant Hawkins rules that blood-alcohol evidence cannot be used to bring charges of drunken driving, but could possibly be used to support a charge of criminal recklessness.

Oct. 27, 2011: Judge Hawkins rules blood-alcohol evidence can be used to support a charge of criminal recklessness.

Sept. 12, 2012: The Indiana Court of Appeals rules that blood-alcohol evidence can be used to support a drunken driving charge. The ruling overturns Judge Hawkins' May 31, 2011, decision that threw out the evidence.
"We conclude that the medical assistant did in fact draw the blood in a way that followed physician-approved protocols, and that the statutes cited by Bisard do not reflect that the General Assembly intended to suppress blood evidence taken in a medical facility by a trained operator in the presence of the suspect’s lawyer," the ruling read.

Oct. 18, 2012: The defense appeals the Sept. 12, 2012, decision to the Indiana Supreme Court. Bisard's attorneys allege the Court of Appeals overstepped its authority by re-weighing evidence already ruled on by the trial court, saying that the court substituted its own judgment in the case and misinterpreted prior appeals court rulings in similar cases.

Dec. 10, 2012: The Indiana Supreme Court declines to hear the case, meaning the Sept. 12, 2012, decision will stand.

Aug. 28, 2013: Allen County Judge John Surbeck Jr. rules that the first vial of blood can be used.

Sept. 3, 2013: Judge Surbeck rules that second vial of blood can be used.
 

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