INDIANAPOLIS — A blood sample from an Indianapolis police officer accused of drunken driving and causing a fatal crash can be used as evidence in the criminal case against him, an appeals court ruled Wednesday, overturning a lower court ruling barring the sample due to concerns over how it was obtained.
The Indiana Court of Appeals ruled that a Marion County judge erred in determining the blood drawn from Officer David Bisard after the Aug. 6, 2010, crash was inadmissible. Bisard's cruiser slammed into two motorcycles stopped at a light, killing 30-year-old Eric Wells and critically injuring two other people.
Bisard's lawyer, John Kautzman, said he was considering asking the Indiana Supreme Court to review the decision. But Marion County Prosecutor Terry Curry noted the high court could decline to hear the case, leaving the appellate court's ruling to stand.
Regardless, Kautzman said the decision wasn't a "knockout blow" to the defense. Prosecutors still must prove a clear chain of custody before the blood can be admitted at trial, he said. Even if the sample does make it into evidence, the state then must convince jurors it is credible, he said.
"Even if this evidence does get admitted at trial, based on all the other things we've learned ... we think there's pretty compelling evidence to show this evidence can't be trusted," Kautzman said.
The sample pegged Bisard's blood-alcohol content at 0.19 percent, or more than twice the legal limit. But then-Marion County Prosecutor Carl Brizzi stunned the victims and public when he dropped drunken driving charges against Bisard in August 2010, just days after they were filed. Brizzi said the blood test was improperly administered and he didn't think it could be admitted as evidence.
Curry, his successor, refiled the drunken driving charges against Bisard early in 2011. Marion County Judge Grant Hawkins ruled in May 2011 that the first blood test couldn't be used as evidence of drunken driving, citing the same reasons Brizzi had. Hawkins said the test wasn't completed according to state law because no clear medical protocol was followed and the blood was drawn by a medical assistant, a profession that isn't included among those the law lists as allowed to draw blood in drunken driving cases.
But he said it could be used to support a reckless homicide charge against Bisard.
The appellate court said legislators clearly hadn't intended for key evidence to be thrown out because of a technicality.
"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," Senior Judge Randall Shepard wrote in the 21-page opinion.
Curry called the ruling, which validated his decision to refile the drunken driving charges, "a significant step" in the case. He said his office had believed all along that "there was a very viable argument that the blood test was appropriate."
Wells' father, Aaron Wells, said he was gratified that the court clarified a law that legal experts found confusing. But he said he didn't expect a resolution to the case anytime soon.
"It's not over," he said Wednesday by phone from his home in Deerfield Beach, Fla. "It's a long way from being over."
Police officers' handling of the crash scene and the decision to drop the drunken driving charge stirred public mistrust and allegations of a cover-up that linger two years later.
Critics said it was hard to believe that officers at the scene hadn't realized Bisard had been drinking. Hundreds of motorcyclists flocked to downtown Indianapolis in the weekends after the crash to protest against Bisard and hold vigils for the victims. Two official investigations into the handling of evidence and the scene resulted in disciplinary action or demotion for several high-ranking officers, including the police chief.
"We knew from the beginning in our hearts that there was something very, very wrong, and I think the community knew there was something wrong," said Aaron Wells.
Curry, the prosecutor, said he didn't know whether the appellate court ruling would ease public concern over the handling of the case.
"At the end of the day, our ultimate goal was simple: to be able to present this case fully and fairly so the families knew they had their day in court," he said.
Wednesday's ruling did not involve a second blood sample that prosecutors later sought to have tested. That vial of blood also was disputed after it was mishandled by police evidence technicians. Hawkins has not yet ruled whether it can be used as evidence against Bisard.
Curry said both the original vial and the second vial will be retested.