Tuesday, August 24, 2010

I call shenanigans!

Our story so far:

One Officer Bisard, running code on the streets of Indianapolis, mows over a couple of stopped motorcycles at an intersection, killing one rider and crippling two more. The crash site is quickly covered in more brass than a circus calliope and Bisard is taken off for a routine blood draw.

The blood draw has him ringing the cherries with a .19% BAC, which is enough to convict almost two and a half regular people of Operating While Intoxicated, and an array of charges are filed.

Only wait!

Apparently the blood draw was not done at the proper legally-required medical facility, but rather at an occupational health center. The city's chief prosecutor, already under investigation for allegedly handing out sweetheart deals in exchange for commercial real estate, announces that he is forced to drop the OWI charges due to the error.

But is he really?

Let's check my email in-box!
The blood draw on the IMPD officer is admissible regardless of where the blood draw is done. All Brizzi has to do is send an investigatory subpoena to the doc in the box and all is well.

See Oman v. State, 737 N.E.2d 1131 (Ind. 2000).

I found this in 20 minutes...

Why did Brizzi skip down the hallway and dismiss the OWI/Death and not even call a meeting or detailing some his 125 attorneys to research this?
Further, MattG points out in comments:
[I]f the blood was drawn into a sterile vial, with a non-alcohol prep pad, in the presence of a good witness who will testify in court, then the blood SHOULD be allowed in. Sure, it can be challenged, but dammit, that's still good evidence.
Something is rotten in Denmark.


kenlowder said...

So leaving the family with only one option for justice. Extra legal.

staghounds said...

Maybe not. Oman's test was independent of the police investigation.

I assumed that Brisard was tested ONLY because of the DUI suspicion. BUT, if the blood were drawn for medical purposes, it could be used in the DUI trial.

Even without the blood, an eyewitness should be able to testify to Bisard's intoxication.

How do you think we did DUI cases before blood tests?

Unless the Indiana vehicular homicide law requires a specific blood proof. Or unless there is some provision that invalidates the test as a test because of who drew the blood, which sounds like Brizzi's problem.

staghounds said...

And much as some would like to encourage lawlessness, no.

First, "the family" has nothing to do with the criminal charges. It's the State's case, not theirs. (Brisard still faces other criminal charges, too.)

The family's only remedy is and always was a civil suit, which should be unaffected by the criminal procedural and constitutional protections that affect a criminal case- even one where the defendant is a police officer.

Anonymous said...

"I assumed that Brisard was tested ONLY because of the DUI suspicion."

IMPD all say that no one suspected Bisard had been drinking and saw no signs of intoxication. Bisard's blood draw was analogous to the firefighter's draw.

Shootin' Buddy

staghounds said...

No, I believe a court would distinguish it.

I'm assuming the draw was for investigatory purposes, not medical, and that Brisard was taken to this place by the police, without his consent or request. Thus he, and his blood, were fourth amendment seized.

(And if the officers did not suspect Brisard was drinking, why did they test him?)

The Oman decision turns on all the ways Oman's case differs from that pattern.

In any case, there must be a list of "approved blood drawers" in the Indiana statutes. As I understand it, if the blood drawer isn't on the list, the test is inadmissible even if constitutionally obtained. Is that the case in IN?

Anonymous said...

"Even without the blood, an eyewitness should be able to testify to Bisard's intoxication."

Would that be the eyewitness(es) all dressed in blue? Right.

"And much as some would like to encourag lawlessness, no."

The lawlessness that's being "encouraged" is from the brass to the blue.

I've said similar things regarding murderers before, putting it in personal context...if that biker is my son/daughter/father etc. and he walks? If I am at that time a free man, then both his situation and mine would soon change; mine as to freedom, his as to breathing.

And while I'm at it, and since I can only get one life sentence here and one eternity in hell hereafter, I might need to create a few openings in "administration" as well.


Anonymous said...

So there are two sets of rules. One for cops and one for everyone else.

Welcome to the police state.

Anonymous said...

If a police action involving a fatality or serious bodily injury DOES NOT result in all participants being tested for drugs and alcohol, there are very serious lapses in the administration of this city.
I thought blood tests for alcohol were routine for all vehicular accidents resulting in death.
Or is that just for the peasants...

Anonymous said...

"I'm assuming the draw was for investigatory purposes, not medical, and that Brisard was taken to this place by the police, without his consent or request."

O.K., stag, this role reversal stuff is starting to get to me!

According to IMPD he was not taken to the doc in the box for investigatory purposes as all the king's men and horses could not smell alcohol and did not think Bisard was drinking.

Bisard was taken to the doc in the box for an admin test, just like in Oman, as Indianapolis has a policy for car crashes just like Michigan City.

I think Oman would fly. However, the fact that it was not tried raises more than reasonable suspicion.

Shootin' Buddy

staghounds said...

No, that d@mned old Constitution requires a reason other than "Was in a wreck" before agents of the state can hold you down and suck the blood from your arteries as you scream "NO!"

For purposes of putting you in jail for what you did while pumping that blood, that is.

Anonymous said...

Coruption starts at the top. Once Corupted always corupted no cure for it. It is over people. They are the masters and we the serfs get used to it. One law for them no law for us.

staghounds said...

I'm not reversing roles. I hate killers and public corruption and incpmpetence in law enforcement.

I was mystified at the initial dismissal. My state has an exclusive list of blood drawers, but it's for investigatory draws only. That's why we can use medical blood. (I've never had an admin draw case.)

This is the first I have heard that it was meant to be an admin, as distinct from investigative or medical, test.

The original implication was that it was an investigatory test, which I assumed since no one said admin or medical. As I've said all along.

If it was a good admin test, then it's a good criminal proof test under Oman- IF the Oman rules were followed. That requires that it be a Constitutionally acceptable test, AND that knowledge of the results be obtained within the law.

And UNLESS there's some exclusive list of blood drawers in IN OWI law.

I'm not an Indiana lawyer, and lots of facts are not revealed, so I'm rather in the dark here.

In any case, there's plenty of time to add the VH charge.

Brizzi owes the public a very clear explanation, with flow charts, of what sounds to me like a summary and poorly thought out decision.

Anonymous said...

3 captans (one a member of the secret police, Oh! I mean homeland security) show up and it is still a "cluster" no preservation of the scene incompetace at the blood draw on and on. The fix was in and still is.

Caleb said...

Captan is the name of a general use pesticide (GUP) that belongs to the phthalimide class of fungicides. Though it can be applied on its own, Captan is often added as a component of other pesticide mixtures.

How did three of those show up at the crime scene?

Roberta X said...

I've unofficial word that the medical tech used an alcohol wipe prior to drawing blood; this probably screws the draw, in court if nowhere else.

If true, it's pretty weird. Why would you do that before drawing for any kind of BAC test for any reason?

staghounds said...

Probably the same reason they do it before lethal injection.

mts1 said...

Are you sure you're not leasing your public officials from Lake County to the north? This sounds like something straight from the county government center.

Dave R. said...

I've met more good cops than bad ones, but b.s. like this is enough to make me distrust them all as an institution. If they can't police their own on negligent manslaughter then screw them.

Ken said...

This is a bad business, and is unlikely to end well. Brizzi and the senior officers are picking a heck of a time to further corrode the domestic tranquility, aren't they?

The police department here in this bedroom suburb (literally -- biggest employer in the city limits is NASA Glenn) of Cleveland is pretty good by my lights. This (for the most part) is a pretty easy town to police, and they act like they know it. The general demeanor is relaxed, professional, and approachable.

Robert Langham said...

Four legs good, two legs better.

Anonymous said...

The alcohol prep does not affect the test except in court. Gross but true one can smell the raw alcohol when the vial is opened on a very positive test. Any wrong doing is greatly exagerated. Next thing we will be told is, death? What death, bumps and bruses a dented fender but no death. Nothing to see here go about your buisness. The authorities will take care of this.

staghounds said...

No, a captan is that round thing that the sailors use to hoist the anchor.

Clearly this case needed a lot of pull.

Matt G said...

Roberta X said:
"I've unofficial word that the medical tech used an alcohol wipe prior to drawing blood; this probably screws the draw, in court if nowhere else.

If true, it's pretty weird. Why would you do that before drawing for any kind of BAC test for any reason?"

I doubt it seriously. The P.C. affidavit has the name of the person who drew the blood as well as the sergeant who drew the blood, who says that the phlebotemist used an iodine swab. Why lie about something so proveable? If so, then charge him with aggravated perjury. But understand that his perjury would have been committed to convict the guy, so that doesn't jibe with the line of thought that this is all a cover-up.

'Berta, I suspect your source heard that the draw was taken wrong, and jumped to conclusions.

I know of a local hospital where the phlebotemists just use water to clean the site of the legal sticks-- no iodine, even.