Second Time Around
By now you’ve heard that Marion County Prosecutor Terry Curry is re-filing DUI charges against David Bisard for the August 2010 fatal crash that killed one motorcyclist and seriously injured two others. If you’re wondering why, well there are two answers. One is easy, the other is a little more complicated.
The original DUI charges were withdrawn because then prosecutor Carl Brizzi said the law had not been followed regarding blood draws for fatal crashes. Brizzi said the blood draw should have been done at a hospital, not a Medcheck facility and therefore the evidence, in his judgment, would have been inadmissible in Court.
During the campaign Curry said he would have filed the DUI charge and if he got elected he would. That was the easy part. Where it gets a little complicated is with the second answer. During his Wednesday news conference Curry cited a recent ruling by the Indiana Court of Appeals as the rationale behind his decision.
The case was Temperly v. State of Indiana. (see below) The facts are somewhat similar to the Bisard case. In Temperly, the Defendant was involved in a fatal accident and tested positive for alcohol. He was tried and convicted. Temperly challenged his conviction on a number of grounds, including evidence of the blood alcohol test was not admissible under Indiana Code 9-30-7. He argued that he was being prosecuted under another section of the Code, 9-30-5 which did not allow for evidence to be admitted under 9-30-7. The Court did not buy that argument and upheld Temperly’s conviction.
If I understand Curry’s argument correctly, he is using that same logic; that as long as the blood test followed the procedure laid out in 9-30-7,and Section 9-30-6 there should not be a problem.
If you want to jump off at this point, I won’t be offended. If you are a glutton for legal punishment, let’s go a little further.
Since the blood draw was not taken at a hospital, the former prosecutor withdrew the charges. However, since the statute says “A law enforcement officer MAY transport…” a defendant to the hospital Curry’s argument, if I understand it correctly, is that “may” does not indicate a command so law enforcement has some discretion in whether to follow the rule.
However in the previous citation the law says an officer “shall” offer a portable breath test or chemical test to any person who the officer has reason to believe operated a vehicle that was involved in a fatal accident or an accident involving serious bodily injury. Therefore Curry argues that as long as there is test for alcohol and it follows proper procedure, the blood draw is admissible.
Yes, this whole case may come down to one or two words and what they mean. Now when I asked the current prosecutor to explain his legal argument during the news conference he declined, however he did agree to come on the radio program next week and help spell out his argument.
I will definitely update this post as soon as that happens, but for now this may have to do. A copy of the case is embedded below.
