Law Professor: Bisard Blood Draw Should Be Argued In Court
Brizzi Too Quick To Dismiss Admissibility, Some Say
7:19 AM, Oct 16, 2010
Once declared inadmissible, the blood-alcohol results of Indianapolis police Officer David Bisard may yet find their way into a courtroom.An Indiana University law professor said Friday that there is merit to re-filing the test result that indicated Bisard was intoxicated when he struck three motorcyclists while on duty on Aug. 6, killing one of them and injuring the other two.Alcohol-related charges were dropped because, Prosecutor Carl Brizzi said, proper protocol was not followed in obtaining the result. Brizzi contends that the test would be thrown out of court anyway.The question of whether a blood draw taken with someone's full consent can still be considered legal if taken in the wrong place is a conundrum for attorneys and prosecutors, 6News' Jack Rinehart reported.Bisard submitted the blood sample more than two hours after the crash. The recorded level of 0.19 percent fueled public outrage, which grew after Brizzi's decision to withdraw drunken driving charges."We decided that it was not admissible. There's no way that blood test was coming into evidence because of the way it was conducted," Brizzi said in the days after the crash.The draw was taken at a clinic by technician who was not certified after a recent change in state law that requires blood draws in fatality and injury accidents be taken at a hospital."I think Brizzi should have tried harder. I think that's what most people think," said Joel Schumm, an IU law professor. "Usually, a prosecutor doesn't within days give up and decide not to file charges."With Brizzi's term ending soon, he will likely leave office long before the Bisard case goes to trial.Candidates for Marion County prosecutor have made public statements saying they would try to get the blood draw in front of a judge.The Bisard case undermined the credibility of the Indianapolis Metro Police Department, and it opened the door to an FBI probe.As the build up to trial drags on, public sentiment appears to be growing to not leave an important legal decision concerning the blood draw to a lame duck prosecutor."Get a court to rule on it. There has never been a court ruling on this particular issue in the case," Schumm said. "If they're not happy in Judge Hawkins' court, then they can ask the Court of Appeals and the Supreme Court to look in on it as well."It's possible that the admissibility of the blood draw could be decided before trial. If it is not admitted, Schumm said it could be more difficult for prosecutors to prove the most serious charges against Bisard.Bisard is charged with reckless homicide and criminal recklessness. He is suspended pending termination from IMPD.