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Gregg J. Stark Indianapolis DUI Attorney Gregg J. Stark Indianapolis DUI Attorney

Bisard Ruling Upheld

A refresher on the twists and turns within the pending prosecution of Indianapolis Police Officer David Bisard;

1) Officer David Bisard is involved in fatal car accident.

2.) Investigating cops on scene do not perform field sobriety tests on Bisard nor request a breath test from Bisard.

3.) After initial delay and confusion, Bisard unlike most all dui investigations in Indiana, is brought to a facility where he provides a blood sample to one not specifically recognized by Indiana statue as one authorized to draw blood for evidentiary purposes in a court of law.

4.) Bisard is prosecuted for Operating While Intoxicated Causing Death Upon a finding that Bisard’s blood draw allegedly provided a sample above the legal limit for intoxication.

5.) Within pre trial motions filed within Marion County Superior Court, the lawyer for Bisard argues for a dismissal of dui charges based upon the admissibilty of the blood sample as drawn by one not authorized by criminal statute.

6.) Judge Grant Hawkins dismisses dui charges against Bisard based upon the inadmissibility of blood draw evidence.

7.) The community within central Indiana and beyond is outraged.

8.) State prosecutors appeal the decision of Grant Hawkins to the Indiana Court of Appeals where former Indiana Chief Justice Randall Shepard is appointed out of retirement to render a decision that restores dui charges against Bisard.

9.) Essentially the appellate court order states that although the blood draw was performed by one not specifically authorized by Indiana statute, the spirit of the law was adhered to as the blood draw professional was otherwise qualified to do so.

Not surprisingly, the Indiana Supreme Court has announced that it will not consider reversing the lower appellate court decision to allow blood draw evidence to be admitted against Police Officer David Bisard within pending drunk driving proceedings against him in Marion County. The decision essentially resurrects the dui prosecution against officer Bisard by allowing for the blood evidence formerly excluded by the trial court to be introduced as evidence against him within the criminal prosecution.

As a dui attorney, I say that the high court’s ruling not to consider reversal of the lower court decision is not surprising for a variety of reasons. Most notably as I have written previously, I believe that an inherent conflict of interest arises when our present appellate standard of review in Indiana allows for a former retired Chief Justice of the Indiana Supreme Court to hear and decide on lower court appeals.

Within the present scenario, I believe the perception may exist that those jurists presently sitting on the Indiana Supreme Court may find discomfort being in the position of having to repudiate the authored decision of the former chief justice.

Further, it may be said that seating Justice Shepard to reverse the lower court decision in this matter allowed the state’s highest court needed political cover to steer clear of the present controversial ruling; a ruling that I believe is in contravention of the intended scope of present Indiana law as to the admissibility of blood draw evidence in dui prosecutions.

Paying no heed to political considerations, I believe the true courageous jurist within the Bisard case has been Marion County Superior Court Judge Grant Hawkins. Judge Hawkins, despite significant politcal pressure, issued a ruling that abided by the actual wording found within the Indiana criminal code as to who would be qualified to draw admissible blood evidence within a court of law.

While Indiana is known as a conservative state eager to thwart the notion of “judicial activism” at every turn, I cannot help but feel that Justice Shepherd’s opinion was a selectively endorsed action that served to expand the scope of the present statute in an effort to aid prosecutors in restoring public confidence through the ultimate conviction of David Bisard.

Quite simply, the present statute is quite clear as to the professionals authorized to draw admissible blood evidence within dui prosecutions. Should this list of authorized individuals be expanded, the Indiana legislature and not the courts should be empowered with the legal and exclusive ability to do so.

Unfortunately, political considerations can often trump the normal legal process when it comes to adherance to a judicial philosophy that follows the law as written. I fear that in the Bisard case, our appellate jurists have bent over backwards to substitute their belief as to what professionals should have been authorized under the law as opposed to who is actually authorized by statute.

In so doing, one might suggest this decision to be an attempt to circle the wagons and guide an out of contol prosecution back on track; a prosecution that has not acquitted itself favorably in the eyes of the general public. While it is not unexpected for the media or a frenzied public to make passionate decisions based upon factors not founded in evidence, it is more distressing to believe that our judicial decisions can be unduly influenced by attempts to restore confidence in the judicial system as opposed to adherence to the proper implementation of law.

Whether David Bisard is guilty or innocent is not the thrust of this commentary. What is important is a recognition that our justice system is only as stable as the dispassionate rulings made that are guided by law and properly admitted evidence and not the whims of the general public. In so doing, we preserve the greatness of the American criminal justice system that affords all a fair opportunity to present a legal defense, and in turn, respected court outcomes that establish meaningful precedent for years to come.

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