Friday, August 13, 2010

Investigative Snafu May Prevent Prosecution Of Bisard On Alcohol-Related Charges

The criminal case against Officer David Bisard IMPD on alcohol-related charges may have to be dismissed if it failed to properly obtain a search warrant before drawing blood from him for testing. Internal investigative procedures require by IMPD require a draw of blood for testing whenever a police officer is involved in a collision while on duty. The Supreme Court has prohibited the use of evidence gathered during an internal investigation of a police officer unless such evidence was gathered as a result of a search warrant, or the officer voluntarily consented to the blood testing after being advised he was the subject of a criminal investigation.

WRTV's Jack Rinehart talked to a number of local defense attorneys who believe IMPD tested Bisard in accordance with its internal investigative procedures and failed to obtain a search warrant or Bisard's consent to the testing of his blood for purposes of a criminal investigation against him. Bisard's attorney has filed a motion to block use of blood alcohol tests taken a couple of hours after the collision that killed one motorcyclist and seriously injured two other motorcyclists. That test result showed Bisard's level at 0.19, over twice the legal limit. Both IMPD Chief Pauld Ciesielski and Public Safety Director Frank Straub told media representatives this week that none of the IMPD officers who investigated the collision suspected Bisard of driving while under the influence. "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," defense lawyer Jeff Mendes, who is not involved in Bisard's case, told Rinehart.

If police indeed failed to obtain Bisard's consent to take the blood test after advising him of his rights, then Bisard's defense attorneys will have a strong argument to keep out that evidence. Police are already locked into their position that Bisard exhibited no visible signs of being under the influence at the scene of the accident. If the blood test results are out, the prosecutor's office is going to be severely limited in any criminal charges it can bring against him. The likelihood of the city being exposed to considerable liability for Officer Bisard's negligence in a civil action, however, remains very high. Two of the victims have already given the City notice of their intent to pursue a tort claim against the City. The City could be also be liable for the wrongful death of Eric Wells, the motorcyclist killed by Bisard in the accident.

14 comments:

Paul K. Ogden said...

Gary, when I worked at the Court of Appeals, I remember seeing cases where they waited an hour or two to test for blood alcohol content of a driver and the cases getting thrown out.

The argument was that the driver could have drank after the accident. A bit of a reach, but it was enough to get the convictions overturned.

I guess that could be countered by someone testifing as to where he was from the time of the accident to the time tested...almost a "chain of custody" type thing.

Indy4U2C said...

Everyone knows that Indiana State Law REQUIRES that all operators of vehicles involved in a fatality MUST submit to a REQUIRED chemical test.

State Law required the test.

Jon said...

Given the fact that the police have stressed that he had no apparent signs of being drunk and then throw out the blood test and he is home free. One also would suppose that the local police would know that taking blood without consent would cause the blood test to be inadmissible.

From the beginning the police have tried to blame the motorcyclists for the accident and to deflect blame.

Add the fact that his blood was drawn about two hours after the crash and even if the test was admissible was he under police supervision for those two hours? If he wasn't he clearly could claim he drank after the accident.

Advance Indiana said...

If I recall, the Supreme Court decision referenced in the report is a relatively recent decision. Not sure how it will be affected by that statute. That statute gives a person the right to refuse the test if it is asked for (if it is the one I'm thinking of) and the person automatically loses their license to drive for a year. In this case, the police officer had to submit to the test or face automatic suspension from his duties and possible termination. That statute presumes you consent to a test if you drive an automobile and cause serious injury or death while operating the vehicle. It will pose an interesting test case. Who knows how the court will ultimately rule.

Advance Indiana said...

Garrity is the rule that must be followed in cases where police are the subject of a criminal investigation and the admissibility of evidence gathered during an internal investigation. It's actually an older Supreme Court decision. I think it has been interpreted not to include physical evidence gathered against the officer, such as blood alcohol tests; however, I think in the case of the latter, there may be a reasonable suspicion requirement. Again, the investigating police officers have stated they had no suspicion the officer in this case was under the influence of alcohol. Most of the cases you see are ones where the police officer was already suspected of being drunk before the test was administered.

Indy4U2C said...

Again, Indiana Law 9-30-7-3 REQUIRES that the operator of a vehicle involved in a fatality MUST take a chemical test for intoxication.

Indy4U2C said...

Wasn't the officer that gave the Indiana State Law Warning to the accused from a different law enforcement agency? This was compliance with state law and done to avoid the appearance of impropriety?

Bill said...

Does anyone really believe that this was a "snafu"? Two cops don't realize someone with a .19 is not drunk? Something stinks here.

Indy Student said...

Indy4u2c, thanks for the code reference.

Someone on Facebook is saying this is just what criminal defense lawyers do, planting the suggestion of doubt. Until we know more about what happen in that missing 2 hour time period, we really can't tell if the blood was collected legally.

Advance Indiana said...

There were too many cops on the scene to cover up visible signs of alcoholism, including top cops to the chief. The media was all over the place. They observed the officer and spoke to others who spoke to him. Nodody saw signs he was under the influence of alcohol. Is it possible there was a mistake in the testing? I don't know. The officer has rights too. And I think the defense attorneys are simply doing their jobs in pointing out these issues.

Had Enough Indy? said...

Do the rulings you talk about, regarding the admissability of the blood test, apply to civil as well as criminal cases?

Advance Indiana said...

No, the Garrity rule doesn't apply to civil cases. The Garrity is a sort of Miranda type rules for police officers that protects them from self-incrimination in criminal cases. It applies generally to interrogations they must comply with as part of internal investigations. As I understand the rule, it doesn't apply to physical evidence like blood alcohol tests; however, I believe courts say there must be a reasonable suspicion for requiring the gathering of such evidence without a warrant or the police officer's consent. Again, I think the case may hinge on whether there was reasonable suspicion to believe he was under the influence of alcohol. The information provided thus far hasn't suggested the officer was suspected of being under the influence of alcohol.

Paul K. Ogden said...

Indy Student said:

"Someone on Facebook is saying this is just what criminal defense lawyers do, planting the suggestion of doubt."

I certainly hope so...that's their job!!!

artfuggins said...

As sad as it is, it is becoming clear that this drunken officer will not be punished for the death of one and the injury of others. The real question is ..was this a sign of IMPD incompetence or was it a manipulated scenario to keep the officer from facing charges. I think everyone knew what they were doing and this was the way to help a brother in blue out of some trouble. Mayor Ballard has some serious questions to answer.