Law debate could delay Bisard trial

INDIANAPOLIS (WISH) - The case against IMPD officer David Bisard may come down to the meaning of a single word in Indiana's blood draw law. But, an Indiana University legal expert told 24-Hour News 8 no matter how that part of the case comes out, the charges against Bisard won't be easy to prove and probably won't go to trial for a year or more.

IMPD officer David Bisard's blood alcohol level tested .19 after his squad car slammed into three motorcyclists killing one and injuring two others. Prosecutor Carl Brizzi however threw out the drunk driving related charges because the blood draw was done by someone he believed was not authorized to do so under Indiana law. But, Marion County's new prosecutor Terry Curry said the law uses the word "may" not shall, when it spells out who can test an officers blood alcohol level and Curry believes that means the Lab Tech who drew Bisard's blood was qualified.

"We have thus concluded that it is appropriate to reinstate all alcohol related charges in this matter," Curry said, But can one word in a statute make a difference.

"Yes, sometimes one word can make a huge difference in the statute," says Joel Schumm an IU Indianapolis school of law professor and an expert on criminal appeals. "I believe Mr. Curry is relying on that part of the statute to say, if someone's trained to do this, they don't have to be the specific people listed in part J of the statute. But it's unclear.”

And because it's not clear, Schumm says it makes sense to charge Bisard and let a judge decide. But, Schumm says the blood test alone is not necessarily enough to convict the officer.

"I think there's still a trial with arguments from Mr. Bisard that hey, even if this alcohol test shows I'm drunk, all of these people at the scene didn't see any signs of that."

However it's decided, Shumm says expect it to take a long time.

"Probably think it will take a year or longer until there can be any trial in this case while this issue gets resolved. Because this evidence is so important to this case."

Schumm says judges will likely look at the "intent" of the legislature when deciding whether to admit the blood test as evidence. But even that he says, can be interpreted differently by different judges.

The judge who has the case now will be first to weigh in, after that it will probably go to the appeals court and after that, there's even a chance the state Supreme Court will be asked to rule. All of that BEFORE a trial ever begins.