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Wednesday, September 12, 2012

Ind. Decisions - COA reverses trial court’s suppression of blood evidence in Bisard case and remands

The Court of Appeals of Indiana has issued an opinion in State v. David Bisard, an interlocutory appeal from the Marion Superior Court. The Appeals Court reverses the trial court’s suppression of blood evidence and remands.

In a 21-page opinion, Sr. Judge Shepard writes [ILB emphasis]:

Officer David Bisard of the Indianapolis Metropolitan Police Department had his blood drawn by a medical assistant following an accident in which one person died and two people were seriously injured. The State later charged him with several counts of operating while intoxicated and reckless homicide.

Bisard moved to suppress the blood test on multiple grounds. He contended that the medical assistant on duty had not followed appropriate protocols, and that in any event the Indiana Code prohibits medical assistants from drawing blood for these purposes. Largely agreeing, the trial court ruled that Indiana Code section 9-30-6-6 (2010) compels suppressing the evidence for purposes of the DUI charges, but not for the reckless homicide count.

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. We therefore reverse. * * *

As is often the case with statutes written at different times and with different problems in mind, trying to shoehorn these provisions seems likely to produce results that the General Assembly never contemplated and did not intend. The one thing we can say for certain is that the Code does not direct that samples taken under these various alternatives be automatically suppressed, as it does for breath samples. We conclude that the legislature’s specific reference to applying the rules of evidence and the implied consent statutes’ global purpose, as the Supreme Court has said, to “acquire evidence of blood alcohol content rather than . . . to exclude evidence,” Abney, 821 N.E.2d at 379, means that, standing alone, the fact that the drawer is not on the list in subsection (j) does not compel suppression.

This is not to say that anyone may draw blood or that it may be drawn in any manner. Rather, subsection (j) tells us that blood may be drawn at a licensed hospital or by certain people if not at a licensed hospital. To the extent that someone else draws blood, the evidence must show that the person is properly trained and performed the draw in a medically acceptable manner. Here, Maga had been trained to obtain bodily substance samples and performed blood draws every day in her position as a medical assistant. As discussed above, we conclude that the procedure she followed complied with the available protocols for drawing blood.

We thus hold that the trial court erred by suppressing the evidence on the basis of subsections (a) or (j).

For interesting background, see this list of ILB entries. Of particular interest, this one from Oct. 13th, 2010.

Posted by Marcia Oddi on September 12, 2012 09:07 AM
Posted to Ind. App.Ct. Decisions