Judge to hear David Bisard blood evidence request

INDIANAPOLIS (WISH) - Marion County prosecutors headed to court Friday afternoon to try to bolster their claim that an Indianapolis Metropolitan Police officer was drunk when he crashed into a group of motorcycles in 2010, leaving one man dead and two others seriously hurt. Prosecutors plan to ask that a second vial of David Bisard’s blood drawn the day of the crash be tested.

The prosecution filed the motions earlier this week and the judge in the case set a future date to hear arguments on the motion.

A blood test administered about two hours after the crash showed that Bisard, 37, who was on duty at the time, had a blood-alcohol content level of 0.19 percent when he when he struck the motorcyclists, who were stopped at a red light. Eric Wells was killed and Kurt Weekly and Mary Mills were hurt.

Prosecutors want the second vial of blood, which has been kept refrigerated in the police property room, to be tested for alcohol content and DNA.

"The state believes that testing the second vial of the defendant's blood to determine the ethyl alcohol content is necessary to affirm the accuracy and authenticity of the initial blood alcohol content results," the motion states.

Prosecutors said they believe the defense may try to contend that the original vial of blood does not belong to Bisard.

"While the state has confidence in the Indianapolis-Marion County Forensic Services Agency, the state believes the defense will make an issue of the second vial at trial if it is not tested for the presence of ethyl alcohol," the motion states.

Bisard was initially charged with seven felonies in connection with the crash. But, former Marion County Prosecutor Carl Brizzi withdrew all alcohol-related charges after questions about how the blood was drawn. The charges were re-filed last year after current Prosecutor Terry Curry took office, but a judge said last May that the blood test could not be used to prove drunken driving charges because it was improperly drawn.

The judge did leave open the possibility that the blood test could be used to prove criminal recklessness charges.

Professor Frances Watson, from the Indiana University Robert McKinney School of Law at Indianapolis, says the prosecution is trying a new tactic in an effort to put weight behind potential criminal recklessness charges.

“They're trying to lay their foundation for scientific evidence which has to be reliable, and it needs a chain of custody. Here, that's been called into question in a number of ways, but primarily by virtue of the person who took the sample,” she said.

Asked if the motions were an unconventional move, Watson nodded.

“It's not odd, but it's not usual either. Usually the state doesn't file a motion to get at its own evidence. That's their evidence. They test it and let us — meaning the defense — know. But, in this case, the testing will help with their chain of custody, which has already been challenged,” she said.

Bisard's attorney, John Kautzman, has maintained from the beginning that all blood evidence drawn that day is tainted, and thus should not be admissible in court.

Asked if that means Kautzman would likely object to the prosecution’s motions for the second vial of blood to be tested, Watson said she could see arguments for either decision.

“If they say no objection, that in no way prevents them from challenging those foundations at trial if the facts allow,” she said. “It will be interesting to see which route they go.”