FORT WAYNE, Ind. (WISH) - An Allen County judge granted the prosecution’s request to dismiss a motion to suppress blood evidence in vial 1 in the David Bisard case on Wednesday, which means it will be allowed at trial.
"I've not seen any allegation that there's a flaw with vial 1, other than - we don't think it's right and we'll prove it. That's for trial,” the judge said Wednesday.
Before the judge granted the request on Monday, IU McKinney School of Law Professor Frances Watson called the motion critical to the future of the case.
“This is the big time key to the state's proof,” she said. “Without that [evidence], it makes the drunk driving charge much harder to prove. And, the criminal recklessness charge is tied to that. If there are chain of custody problems, then that evidence wouldn't be admissible.”
Bisard is accused of driving drunk in August 2010 , crashing his patrol car into a group of motorcyclists and killing Eric Wells. Prosecutors say the blood draw taken after the crash shows he was drunk at more than twice the legal limit at the time.
The latest request to throw out that blood evidence was debated during a two-day hearing in late July. The dates had been set aside to consider evidence on at least 10 separate evidentiary motions, but Bisard's attorney John Kautzman said he received last-minute evidence just days before the hearing, including nine interviews from prosecutors conducting an internal investigation at IMPD.
Prosecutors contend that the question of admissibility has already been answered.
Though the original Marion County judge hearing the case, Grant Hawkins, said the blood was improperly drawn, an Indiana Court of Appeals ruling overturned it. The Indiana Supreme Court declined to hear the case, effectively upholding the appeals court ruling.
But, Katuzman’s latest filing argued that the blood wasn't handled properly after it was drawn. He was challenging the "chain of custody.”
”The idea of chain of custody is to authenticate the evidence, to be sure that it is what it purports to be, and to identify it,” Watson said. “The state has to show that the blood they drew from his arm is the blood that was tested. What the state has to show is what we call links in the chain of custody--the people that touched it, where it was, and who had it. They have to connect the dots, if you will, or connect the links. Sometimes, if there is a link missing, it will defeat the chain of custody. But, if the link is only weak, then the evidence is admitted.”
During the last hearing, Katuzman told Judge John Surbeck that the officer transporting the blood stopped at a restaurant for an hour, and that a second vial of blood sat unrefrigerated for months.
Watson didn't think the judge would buy Katuzman's arguments against the validity of the samples on Wednesday.
"In my opinion, the lawyers are fighting a good fight. But, they're smart enough to know they won't be successful. That blood test, given that court of appeals opinion, that blood test is coming in,” she said.
Asked what role overturning an existing appeals court ruling might play, Watson smiled.
“I would say most judges would know better,” she said. “But, each case is different.”
Watson also thinks prosecutors will win their argument to throw out comments made by former prosecutor Carl Brizzi on the admissibility of the blood evidence.
“What Carl Brizzi said is hearsay. He's got no firsthand knowledge of those events. He himself didn't participate in the chain of custody, or the testing or the blood draw. So, he has no firsthand knowledge,” she said.
The judge will also consider a motion Wednesday from prosecutors asking that David Bisard's second DUI arrest in Lawrence earlier this year be admissible as evidence in the trial for his 2010 crash.
Watson thinks that will be a much tougher sell.
“The general rule is: you can't prove he was driving drunk by evidence of subsequent drunk driving. Why? Because it's more prejudicial than probative. It doesn't go to the elements of whether or not on this day he was [driving drunk]. At this point, Bisard's got a strong argument that [he’s] innocent of that. He’s not been convicted of that. And, within the rules of our law, that means you can't reference that, because [he’s] an innocent man. I would expect that the state would not be able to use those subsequent bad acts, unless somehow the door was opened by the defendant,” she said.
The court is expected to begin hearing evidence Wednesday morning.
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