Update — Officer’s attorney responds to developments
Officer David Bisard’s attorney, John Kautzman, has released this statement responding to the prosecutor’s announcement that all DUI charges will be dismissed, leaving reckless homicide and criminal recklessness:
“Earlier today we obtained a significant favorable ruling regarding the lack of probable cause as it relates to the license suspension. The next step was for us to examine the blood draw protocols to see if the required steps were followed. We commend the Marion County Prosecutor’s Office for coming forward early with the candid admission that the facility and med tech were not properly certified. Obviously, the failure to follow the appropriate standards and protocols meant that the blood draw result obtained was no longer reliable. However, several significant criminal charges remain pending against our client, and we will continue to move forward with the defense of Officer Bisard.”
Update — Cop’s blood draw not admissible in court
Top public safety officials and the Marion County prosecutor this afternoon announced sweeping actions that will result in the dismissal of DUI charges against the suspended officer accused of driving drunk and causing a fatal crash with two motorcycles that were stopped at a light.
The FBI also will join an internal investigation of Indianapolis police’s handling of the case, and Public Safety Director Frank Straub has removed a commander from overseeing the multi-agency Fatal Alcohol Crash Team because of shortcomings in the investigation. But Straub said the Indianapolis Metropolitan Police Department’s Professional Standards Division — internal affairs — will be expanded to all Public Safety agencies and will retain its commander as a sign of his confidence in the internal watchdogs.
The dismissal of officer David Bisard’s six counts of operating a motor vehicle while intoxicated — leaving intact a reckless homicide charge and two newly filed criminal recklessness counts — is rooted in a fatal flaw in the case, Prosecutor Carl Brizzi said. Brizzi said a lab tech who drew Bisard’s blood sample at an occupational health clinic was not certified under Indiana’s DUI laws to do such work for a criminal case.
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Instead, he said, officers should have taken Bisard to a hospital for the blood draw.
As a result, Brizzi said, he is certain the defense would win on a motion to suppress the blood test result, which is the linchpin of the DUI charges in this case because Bisard had not been suspected of being intoxicated at the scene by other officers.
Officials only learned of his alleged intoxication several days later when the test result came back, showing his blood-alcohol content was 0.19, above the 0.08 level at which Indiana drivers are considered intoxicated.
Bisard’s remaining top charge, reckless homicide, is a Class C felony, carrying a potential penalty of two to eight years in prison. But his stiffest DUI charge, now dismissed, was a Class B felony, which would have carried a penalty range of six to 20 years. The remaining criminal recklessness charges are Class D felonies.
IMPD Chief Paul Ciesielski and Straub said more than once that the department was embarassed, but Straub stressed that “there was absolutely no deference given to this officer” by his colleagues at the scene. The FBI and internal investigators likely will question the responding officers again about what they saw and heard while dealing with Bisard in the immediate aftermath of the crash.
The FBI has been asked to join the investigation because the FACT team includes officers from multiple local police agencies that aren’t under IMPD’s control, Straub said.
Both disciplinary actions and criminal charges will be considered if needed, Straub said, adding that Bisard potentially could face federal charges in some form. But Straub and Brizzi said it was too soon to know if any errors in the investigation by the seasoned FACT team went beyond simple mistakes — errors that now are reaping major consequences.
“We are a transparent Department of Public Safety and a transparent Police Department,” Straub said, and he pointed to today’s announcements as upholding that value.
But of the Bisard case, he said: “The system failed. Our investigation failed.”
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Lt. George Crooks will be removed from his post as commander of IMPD’s hit-and-run unit and coordinator of the FACT team.
Bisard’s cruiser was responding to a request to help serve a warrant when he struck two motorcycles Aug. 6 at 56th Street and Brendon Way South Drive. Eric Wells, 30, was killed, and the crash critically injured Mary Mills, 47, and Kurt Weekly, 44.
Brizzi said the revelations of the blood-draw process and lack of certification came to light over the last day as his own investigators looked into the handling of the case.
Earlier — Cop in DUI keeps license
A judge ruled this morning that a suspended Indianapolis police officer may keep his driver’s license while he awaits trial on charges that he was driving drunk on duty when he struck two motorcycles, killing one rider and injuring two others.
The decision by Marion Superior Court Judge Grant Hawkins came down to differences in the language of two chapters of Indiana’s “implied consent” laws for drivers suspected of driving drunk. Police learned that officer David Bisard was drunk when blood test results came back days after the Aug. 6 crash — but officers at the scene had not suspected that he was intoxicated, according to court documents.
• LEARN MORE: Background on Officer David Bisard and the chjarges in the fatal DUI.
That lag in suspicion was key to the judge’s ruling. Citing an appellate court decision, he found that in the law at issue, license suspension only applies to suspects when probable cause to believe they are intoxicated is established by police before any blood test is given. But a separate provision requiring drivers involved in fatal crashes to submit to an intoxication test automatically does not discuss a license suspension unless the person refuses the test.
That latter section of the law applied in Bisard’s case.
The defense could try to keep the blood test from being used as evidence against Bisard in the larger case — a move that, if successful, would torpedo the charges. But that issue was not addressed today, and the defense has not filed a motion to suppress the blood test.
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“I think we all agree that probable cause for an arrest is not the same as probable cause for a license suspension,” Hawkins said today, making clear he considered the issues separate.
Marion County Prosecutor Carl Brizzi today blasted the way police handled Bisard’s investigation. Brizzi said the fact that other officers didn’t suspect Bisard of being intoxicated at the scene and didn’t conduct any breathalyzer or field sobriety tests is having a direct bearing on the case now.
“I have serious concerns about the way this case was investigated at the scene,” Brizzi told The Indianapolis Star after the hearing. “Obviously, one of the things that created this situation we have today is that probable cause was not articulated (early enough).”
Brizzi later told a group of reporters outside the courtroom: “Someone on the scene should have recognized that officer Bisard was drunk.” A few minutes later, he elaborated, saying: “Yes, I am questioning their work on the scene. I am frustrated that there is an appearance — there is an appearance, whether it is accurate or not — that something was amiss that Friday. ….. Now we’re dealing with the aftermath.”
Blood drawn about two hours after the crash showed Bisard’s blood-alcohol content was 0.19, more than twice the 0.08 level at which Indiana drivers are considered intoxicated. It led to felony charges of operating a motor vehicle while intoxicated and reckless homicide, filed last week by Brizzi.
After today’s hearing, Brizzi declined to say whether he was worried about the validity of the blood test in the case.
“As prosecutors, we have to deal with the evidence that is given to us. ….. I don’t want to speculate on how the evidence is going to play out,” Brizzi said, adding that he sees the issues involved in today’s ruling and any future defense attempt to suppress the blood test as “apples and oranges.”
He said the state’s implied-consent law should be fixed to allow a license suspension in a case like Bisard’s.
The crash killed Eric Wells, 30, and critically injured Mary Mills, 47, and Kurt Weekly, 44.
Chief Paul Ciesielski suspended Bisard, 36, without pay last week and is seeking to have him fired. A Merit Board review likely will be scheduled after the criminal case against Bisard is completed.
Instead, he said, officers should have taken Bisard to a hospital for the blood draw.
As a result, Brizzi said, he is certain the defense would win on a motion to suppress the blood test result, which is the linchpin of the DUI charges in this case because Bisard had not been suspected of being intoxicated at the scene by other officers.
Officials only learned of his alleged intoxication several days later when the test result came back, showing his blood-alcohol content was 0.19, above the 0.08 level at which Indiana drivers are considered intoxicated.
Bisard’s remaining top charge, reckless homicide, is a Class C felony, carrying a potential penalty of two to eight years in prison. But his stiffest DUI charge, now dismissed, was a Class B felony, which would have carried a penalty range of six to 20 years. The remaining criminal recklessness charges are Class D felonies.
IMPD Chief Paul Ciesielski and Straub said more than once that the department was embarassed, but Straub stressed that “there was absolutely no deference given to this officer” by his colleagues at the scene. The FBI and internal investigators likely will question the responding officers again about what they saw and heard while dealing with Bisard in the immediate aftermath of the crash.
The FBI has been asked to join the investigation because the FACT team includes officers from multiple local police agencies that aren’t under IMPD’s control, Straub said.
Both disciplinary actions and criminal charges will be considered if needed, Straub said, adding that Bisard potentially could face federal charges in some form. But Straub and Brizzi said it was too soon to know if any errors in the investigation by the seasoned FACT team went beyond simple mistakes — errors that now are reaping major consequences.
“We are a transparent Department of Public Safety and a transparent Police Department,” Straub said, and he pointed to today’s announcements as upholding that value.
But of the Bisard case, he said: “The system failed. Our investigation failed.”
