Friday, October 28, 2011
Ind. Decisions - "Judge: IMPD officer Bisard's blood test can be used" [Updated]
A simple blood test has caused a year of headaches for the Marion County prosecutor’s office.The ILB hasn't seen a copy of the Oct. 27th ruling ...
The test shows that suspended Indianapolis police officer David Bisard’s blood-alcohol content was 0.19 — more than two times the level at which people are considered to be drunk — when his squad car crashed into a group of motorcyclists.
The Aug. 6, 2010, crash killed one and severely injured two others.
Drunk driving charges were filed against Bisard and dropped; then re-filed and thrown out by a judge who said the test was inadmissible under Indiana’s drunk driving laws.
But Thursday, the prosecutor’s office finally won a battle over the blood test.
Marion Superior Court Judge Grant Hawkins ruled that the test could be used to support felony charges of reckless homicide and criminal recklessness. * * *
Bisard’s attorney, John Kautzman, said they will appeal Hawkins’ latest ruling.
Prosecutors are appealing another decision by Hawkins, who ruled in May that the test is inadmissible for the drunk driving charges because the person who administered the test was not a professional authorized to do so under drunk-driving laws. [ILB - here is the May 31, 2011 ruling]
They don’t want to drop Bisard’s most serious charge: A felony count of operating a vehicle while intoxicated causing death, which would carry a penalty of six to 20 years in prison.
The appeals likely will be combined for review by the Indiana Court of Appeals.
Hawkins said Thursday that the section of the law regarding drunk driving has tighter restrictions on blood tests, and those restrictions don’t apply to recklessness charges. He said court rules regarding evidence allow him to admit the test for the recklessness charges because the test is scientifically reliable.
Kautzman disagreed. He had asked for the test to be tossed out on both sets of charges.
Kautzman said the case originated under the drunk-driving statute, so the blood test restrictions in that part of the law should continue to apply.
“We think that there is one standard of admissibility for blood that is obtained in a driving case that has an allegation of alcohol with it,” he said.
Both of Hawkins’ rulings likely will hold on appeal, [IU-Indy Law prof Joel] Schumm said, because higher courts tend to defer to trial court judges on evidentiary issues unless they’ve committed an egregious error.
[Updated at 2:47 pm] The ILB has received this note:
I just heard from someone in the courtroom yesterday that [Judge Hawkins] said from the bench he will not be issuing a written order.
Posted by Marcia Oddi on October 28, 2011 10:58 AM
Posted to Ind. Trial Ct. Decisions