Bisard case: What's next?

INDIANAPOLIS (WISH) - The day after a crushing blow in court, Marion County prosecutors are trying to make some tough decisions. Tuesday, a criminal court judge ruled that key blood alcohol evidence cannot be used in the DUI charges against IMPD Officer David Bisard.

So what does that mean for the prosecution going forward? 24-Hour News 8 sought expert analysis of the case and the prosecution's options.

Indiana University Law School's Joel Schumm often defends those appealing criminal convictions. He said the case against Bisard is largely dependent on the blood-alcohol test. The DUI charges, the criminal recklessness charges, the crash, the controversy, and calls to convict all rest with the result of the alcohol test on Bisard's blood. And that critical test result was .19 - more than twice the legal limit.

But a judge has ruled that test cannot be used as evidence in the DUI case against Bisard. Now Marion County prosecutors are trying to decide whether to appeal the judge's decision.

"I think it would be tough to win this on appeal," Schumm said, "because the judge's ruling talks about where the sample was taken, who drew it, and I think the way the testimony played out at the hearing there were lots of problems with how this particular sample was drawn."

Schumm said because because the judge cites many problems with the Bisard blood draw, it gives the appellate judges many reasons to uphold the lower court judge's decision.

But prosecutors can still pursue criminal recklessness charges. In an IMPD's investigation report on the crash, officers conclude Bisard was reckless - driving 73 in a 40 mile per hour zone. They also conclude Bisard was typing on his computer at the time of the crash, and Bisard admits when he looked up the motorcyclists were "right there."

IMPD REVIEW | See the document for yourself.

So is that enough to prove criminal recklessness?

"If there's some alcohol evidence, I think it bolsters the case quite a bit. And without it, it would be harder for the state to be able to prove that," said Schumm.

That's why all eyes will be on the courtroom of Marion Superior Court Judge Grant Hawkins on July 28. That's likely when the defense will try to get the blood alcohol evidence thrown out in the criminal recklessness case as well. Different state statutes dictate how blood is drawn in criminal recklessness cases, but the defense lawyers have vowed to work to have the blood evidence suppressed in those charges.