Legal Experts Weigh Risk Of New Bisard Charges

Some Say Blood Evidence Could Derail Case

Legal experts and seasoned defense attorneys are weighing in on how re-filing alcohol-related charges against an Indianapolis police officer who crashed into a group of motorcyclists, killing one and seriously injuring two more, could affect the case.

Marion County Prosecutor Terry Curry said Wednesday he plans to reinstate seven felony charges against Officer David Bisard -- 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.

Police said Bisard was driving drunk and on duty on Aug. 6 when he plowed into a group of motorcyclists, killing Eric Wells and seriously injuring Mary Mills and Kurt Weekly.

A blood draw showed that Bisard had a blood-alcohol content of 0.19 percent two hours after the crash, but alcohol-related charges were dropped by then-Prosecutor Carl Brizzi after it was determined the draw took place at a clinic instead of a hospital, as stipulated by law, and that the blood test would be inadmissible.

As part of his campaign, Curry had said he believed the admissibility of the blood results should be left up to a judge.

Joel Schumm, a professor at the Indiana University School of Law - Indianapolis, said he believes the re-filed charges are appropriate.

"Ultimately, the question is, do we throw out blood evidence against someone and some really serious charges where someone's died as a result because of things that some might view as technicalities?" he told 6News' Jack Rinehart reported.

Still, there is the risk that asking the blood evidence be included would open a can of worms that could derail the case.

In the aftermath of the crash, 67 witnesses gave statements saying they did not suspect Bisard of being impaired, a fact that may carry more weight than his blood-alcohol test with a jury.

"Even if the blood test is in, he can still argue that he wasn't intoxicated and bring out large numbers of witnesses that would say he wasn't acting in a way that was intoxicated," Schumm said.

Brizzi told 6News on Thursday he dropped the alcohol-related charges because he does not believe there is any ambiguity in the statute regarding where and how blood evidence must be obtained.

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"I don't think there's anything really wrong with this test. I don't disagree with the results of this test -- 0.19 is 0.19. I believe that's a valid test," he said. "Unfortunately, because of where they took Officer Bisard, the occupational center, as opposed to the hospital, I think it's not going to be admissible."

Brizzi also stressed that it takes only one juror to hang a jury, and that the questionable nature of the way the blood results were obtained could hurt the overall case.

"If the judge does let it in, then the defense gets to argue about how the blood the drawn, the fact that it was taken by an improper person," he said. "This thing is going to get very silly."

Legal experts agree that no matter who prevails in state court, the other side will likely appeal the issue all the way to the Supreme Court.

That could give the state an advantage, said defense lawyer Jeff Mendez.

"Now the state has two bites at the apple. Win in state court or lose in state court, they have two shots now to bring the alcohol aspect of this case into play," he said. "One in front of the trial court and if they lose, then it goes to the appellate court."

An initial court appearance for Bisard was set for Friday.