Court reverses ruling on Bisard blood draw
Wednesday's ruling in the David Bisard criminal case means prosecutors can now show the former officer's blood-alcohol content was more than twice the legal limit when he slammed his squad car into a group of motorcyclists two years ago.
The decision by the Court of Appeals is considered a victory for the prosecution and the families of the victims.
"All we wanted was to be heard in the court system. Let them decide," said Mary Wells, mother of Eric Wells, the motorcyclist killed in the August 2010 crash.
Indianapolis Metro Police Officer David Bisard faces charges in connection with an August 2010 crash that killed motorcyclist Eric Wells and critically injured Mary Mills and Kurt Weekly.
At the time, Bisard's attorneys argued that the blood draw taken after the crash should not be allowed as evidence, on the grounds that the medical assistant who took the blood had not followed proper protocols and that the draw should have been taken at a hospital, not a clinic. The trial court agreed.
However, on Wednesday, an appeals court ruled that the medical assistant did in fact follow 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."
The Court of Appeals will allow David Bisard's blood test to be used at trial. The test revealed Bisard's blood-alcohol level was .19 or more than twice the legal limit after he crashed into a group of motorcyclists two years ago.
"That gives us a chance to prove that this man was drinking. He knew he was drinking. He knew what he did was wrong and now the courts agree with us," said Mary Wells.
Defense attorneys had argued the medical assistant who did the blood draw on Bisard after the crash wasn't qualified and didn't follow protocol. But the prosecutor got the answer he wanted.
"The Court of Appeal's opinion was consistent with what we said all along, which was Miss Maga (the lab tech who took the blood draw) was in fact qualified. She followed appropriate protocols and there was nothing that would render the blood draw inadmissable," said Marion County Prosecutor Terry Curry.
An IU School of Law professor says it's unlikely the State Supreme Court, will take up the issue of the blood test, leaving the defense with options.
"One would think a plea would be likely just because the evidence is now admissable. That's a high alcohol blood content," said Fran Watson, IU School of Law.
For the mother of Eric Wells, it's a small victory after two years of grief.
"Nothing is going to bring Eric back. But this gives us the opportunity to at least do what we said we wanted to do. And that was to fight this to the end till we got justice for Eric," she said.
Drunk driving charges to be pursued again
The Marion County prosecutor threw out charges against Bisard for driving while intoxicated on the basis that the blood evidence could not be used. Now, Curry tells Eyewitness News that the ruling allows his office to prosecute the Title 9 offenses. Those include operating a vehicle while intoxicated resulting in death.
"The trial court judge ruled we could not move forward with those counts and now the court of appeals has ruled we can go forward with all of our counts," the prosecutor's office said Wednesday.
The prosecutor's office expects the ruling to be challenged at the Indiana Supreme Court Level, and this point, they can't say when the case will go to trial.
Mary Wells: "Great day"
Mary Wells calls it a "great day for my family. I haven't used that word in two years. This was a great day."
"Everything that's gone on has been a slap in the face for us. With the blood evidence, with the way everything was handled. All we wanted was to be heard in the court system," said Mary Wells. "It's just a great feeling to know that finally something has gone for our side. That gets us closer to justice for Eric. That gives us a chance to prove that this man was drinking. He knew he was drinking. He knew what he did was wrong and now the courts agree with us."
Bisard remains suspended without pay while the legal case is ongoing. The Fraternal Order of Police is paying for his legal assistance.