Alcohol-related charges against an Indianapolis police officer accused of causing a fatal crash may not hold up in court, some legal experts told 6News.Officer David Bisard, a nine-year veteran of the department, was on duty when he plowed into a group of motorcyclists stopped at a red light Aug. 6, killing Eric Wells, 30, and injuring Kurt Weekly, 44, and Mary Mills, 47.
Updated Slideshow: More: David Bisard Probable Cause
According to the probable cause affidavit, Bisard registered a 0.19 blood-alcohol level about two hours after the crash when he underwent a department-required blood draw at an outpatient clinic.But a motion filed by the defense and some legal experts are now questioning whether that blood can be used as evidence against Bisard in a criminal investigation, 6News' Jack Rinehart reported.Both Indianapolis Metro Police Chief Paul Ciesielski and Marion County Public Safety Director Frank Straub have stressed that no one at the scene of the crash, including members of the executive staff, believed Bisard was drunk.Under Indiana law, anyone involved in a fatality accident or one involving serious bodily injury are subject to a blood draw.It's also the policy of Indianapolis police to draw the blood of officers involved in crashes, but those results can only be used for interdepartmental purposes, per a U.S. Supreme Court ruling."Evidence obtained in reference to an internal investigation cannot be used in a criminal investigation, and I'd have a strong argument representing this individual that these results should not come into a criminal case," said defense lawyer Jeff Mendes, who is not involved in Bisard's case.So unless Bisard consented to have his blood drawn for purposes other than an internal investigation, some argue that the results of the test may 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.In a motion filed Friday challenging the suspension of Bisard's license, the defense alleges that because the probable cause affidavit makes no mention that Bisard was suspected of being intoxicated, "the chemical test was offered to him via the implied consent law without any basis whatsoever ... as a result, the defendant respectfully asserts that the state of Indiana cannot offer a test (and coercively obtain consent), and then use the results of that chemical tests in a bootstrapped attempt to justify the rationale for offering the chemical test in the first place."
More: Read The Defense Motion
Earlier this week, Ciesielski defended the department's handling of the investigation, specifically the decision to administer a blood draw of Bisard instead of a Breathalyzer test at the scene."There's a process that has to be done for these types of accidents, especially when there's a fatal accident involved. The process is you draw blood rather than take a breath test, because it is more accurate," he said. "If it's just a DUI arrest or just a traffic stop, the Breathalyzer machine is an accurate machine but for these types of cases that you can be criminally charged because of a death, we want the blood test."The police department's fatal accident crash team was called to the crash scene, but accident investigators did not call out the unit's on-call drunken driving deputy prosecutor to direct the investigation.Ralph Staples, a former deputy prosecutor turned defense attorney, said proper criminal procedures were ignored."The last thing those people were probably thinking was, 'This guy has been drinking,' so the last thing in their minds was let's follow a criminal investigate procedure to determine whether or not he's got something in his system, which may muddy the waters in a criminal prosecution," he said.At Bisard's initial court hearing on Thursday, his attorney, John Kautzman, filed a motion to preserve the blood draw, reserving the right to have it tested again by another lab.The motion on the license suspension will be heard Thursday.Bisard is charged with operating while under the influence causing death, a Class B felony; operating while under the influence causing death, a Class C felony; reckless homicide, a Class C felony; and four counts of operating while under the influence causing serious injury, Class C felonies.Bisard is suspended pending termination from the department. On the most serious charge, he could be sentenced to up to 20 years in prison, if convicted.
More Information: Indiana Court of Appeals Ruling On Blood Draws