Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Remember the Indianapolis cop who ran into three motorcycles that were parked, killing two people and critically injuring another while drunk on duty? The charges have been dropped against him for a rather convenient reason. Balko reports:
Prosecutors initially filed a host of DWI-related charges against Bisard. But on August 19, Marion County Prosecutor Carl Brizzi announced he had no choice but to drop the most serious charges because Bisard's blood had been drawn by an uncertified lab tech. And because none of Brisard's fellow officers apparently noticed his intoxication at the scene of the accident, there was no admissible evidence that Brisard was drunk when he caused the crash.
And here's why none of the officers can testify against him:
None of the officers who responded on August 6 thought to give Bisard a breath test, or apparently even suspect him of being drunk. At first blush perhaps that's understandable, given that Bisard was on-duty at the time. But when he was finally given a blood test more than two hours after the accident, he tested at .19.
Which means at the time of the accident, he was probably at .24 or so, three times the legal limit. But the news isn't all bad:
In the face of a pretty furious public backlash, there have at least been some consequences: According to the Star, Brisard does still face a lesser charge of reckless homicide, plus added charges of criminal recklessness. IMPD officials dismissed Lt. George Crooks as coordinator of the multiagency Fatal Alcohol Crash Team, and Indianapolis Mayor Greg Ballard announced last week that Assistant Chief Darryl Pierce, Deputy Chief Ron Hicks, and Commander John Conley would all be demoted for the handling of Bisard's case.
Still, a civilian who did the same thing would be facing much more serious charges.
Politics
Comments
And I'm assuming that "demoted" isn't a euphemism for "fired." If people want to cut through that "thin blue line" then action really needs to be taken to cut that cordon.
Posted by: mercurianferret | August 31, 2010 11:47 AM
Are they also going to make sure to use a certified lab tech next time?
Posted by: Deen | August 31, 2010 11:52 AM
Deem: I'm wondering why they even had a non-certified lab tech on hand and tasked with drawing blood if they new that such actions were inadmissible. I mean seriously; they deal with drunks every day.
Posted by: Julian | August 31, 2010 11:56 AM
Why is there an un-certified tech even employed? Maybe he gets all the DWI cop/politician blood.
Posted by: MikeMa | August 31, 2010 11:57 AM
As a commenter on Balko's blog says, it's convenient that the lab tech was uncertified.
I wonder what the practical reason for the objection is in this case, however. About all I can think of is that the kit used to draw the blood was somehow contaminated (and even that seems far-fetched.) In any case, if you suspect one sample, you take another, using proper procedures, and the first becomes moot.
Posted by: Chris Winter | August 31, 2010 11:59 AM
Grr. That should be "Deen" and "knew" instead of "new".
Posted by: Julian | August 31, 2010 11:59 AM
The real question is, how many people convicted of DWI from blood taken by that same lab-tech can now get their convictions overturned? Since there is chain of custody for blood, there has to be a record of whom he's taken blood for/from before.
Posted by: Buffoon | August 31, 2010 12:00 PM
@1mercurianferret asked
No, it isn't. They still have a job. The demotion is real, in that the lowest ranking individual lost about $25,000 in annual salary, the other two about $35,000.
@2 Deen:
That's an excellent question, there are LOTs of people wondering that, here.
fusilier
James 2:24
Posted by: fusilier | August 31, 2010 12:00 PM
Thanks for the tip. Next time I'm stopped on a DWI charge I'll be sure to ask for the non-certified lab tech.
Mike.
Posted by: NoAstronomer | August 31, 2010 12:00 PM
This country needs an "obstruction of justice by a law enforcement officer" statute, that makes this little oversight of using the wrong tech a felony, to go with conspiracy charges against the officers who "forgot" to field test for alcohol.
Posted by: Mu | August 31, 2010 12:01 PM
@5Chris Winter:
There IS no practical reason - Indiana state law says that a blood draw for DUI must be conducted by a licensed phlebotomist at a hospital.
Nobody officially realized there was a problem until about a day later, so any later blood draw would be irrelevant.
fusilier
James 2:24
Posted by: fusilier | August 31, 2010 12:04 PM
For those asking why the clinic had a "non-certified" lab tech:
Lab techs are completely qualified to draw blood. Due to a strange quirk of Indiana law, though, they're not legally qualified for purposes of criminal evidence.
Sheesh -- even an LPN is legally qualified, and they don't get a fraction of the training that a lot of med techs do.
Posted by: D. C. Sessions | August 31, 2010 12:06 PM
IANAL, but if I was, I'd be including the hospital as a defendant in the inevitiable civil lawsuit.
Posted by: Chilidog | August 31, 2010 12:11 PM
Shouldn't there be an uproar for the fact the DA could have easily pressured some cops, under intense threat of perjury, to squeal they noticed their fellow officer was completely rip-roaring drunk on his ass and because they reported they did not, they were criminally culpable for lying? There is no way someone can act sober if they blow a .19 two hours after an accident.
I get the whole thing about DA's and cops having each others' backs and cops each others' as well. But I can't imagine a jury accepting the notion they failed to notice any driver not being drunk given that alcohol content. That should be ample enough leverage for the DA to sweat it out of at least one or two of the cops on the scene prior to any indictments. The public should be pressuring for the DA's head as well for not going after this officer's cohorts.
Posted by: Michael Heath | August 31, 2010 12:18 PM
@14 Michael Heath:
Marion County Prosecutor Carl Brizzi is not running for re-election.
He's also not going to run for governor, after Mitch Daniels steps down in 2012. Brizzi has been real friendly with a number of individuals who are ... questionable. I can't remeber the guy's name and I'm too lazy to google for it, but one major campaign contributor is a financier who had his offices in Indianapolis and Columbus, OH raided by the FBI, on camera.
fusilier
James 2:24
Posted by: fusilier | August 31, 2010 12:31 PM
That does not excuse the hospital from having a "legally" unqualified person conduct the blood draw. The hospital should have known that the blood draw was for a DUI case and thus should have provided the proper person to conduct it. They don't have the janitor collect rape kit samples, do they?
Posted by: Chilidog | August 31, 2010 12:31 PM
If this prosecutor's wife and children are killed by a drunk driver, I hope the person who draws blood from the offending driver is not a qualified lab technician.
Posted by: Fifth Dentist | August 31, 2010 12:37 PM
I disagree to a certain extent, although it only presents a scarier situation. I've seen and dealt with more than one long term heavy drinking alcoholic who wouldn't appear that intoxicated despite having high BAC's. Some things can't be hidden like the smell of alchol, but it's not necessarily true that a person with a .2 or so would always appear falling down drunk.
Heck, I know of one story (although I did not personally work on this case, but have seen the documents) where a guy drove himself to the hospital, and walked in the door under his own power, and told the ER staff he felt like committing suicide. He was described as "visibly intoxicated but alert and orientedx3" He blood tested at a .37, which is fatal for most people.
Posted by: Ben P | August 31, 2010 12:37 PM
A newly minted cop will not be trusted until he passes real probation, which takes a couple years. He has to take, and be seen to spend, his share of windfalls. He has to back his partner's every move without hesitation, no matter how outrageous or criminal it is. He has to plant his share of evidence. He has to get in on any shooting so it's never his partner alone that shoots the unarmed victim. He has to take, and use, his share of drugs.
Cops cannot trust other cops unless they already have serious dirt on them. That's the glue that binds the blue fraternity, mutual blackmail.
No doubt he's got enough dirt on enough people that the threat to take them down with him has real teeth.
Posted by: Steaming Pyle | August 31, 2010 12:48 PM
"If this prosecutor's wife and children are killed by a drunk driver, I hope the person who draws blood from the offending driver is not a qualified lab technician."
What a noble sentiment.
Posted by: Buffoon | August 31, 2010 1:06 PM
These cops can't recognize someone with a blood/alcohol level over .2? I'd love to see a lawyer bring this up in court the next time one of these guys claims he had probable cause to stop a motorist. (Yeah, I know, and I wish I had a tree that grows pizza)
Posted by: Scott Hanley | August 31, 2010 1:12 PM
Why not test the tech and see if he/she passes? Then ask the tech if they did the blood draw in the "legal" way?
Posted by: daedalus2u | August 31, 2010 1:14 PM
As I understand it, there's a statute which provides certain rules for the state to use blood evidence in a criminal case. I don't think it would be so easy to get around.
On the other hand, if I recall correctly (and I'm not looking it up at the moment) it did not apply to civil cases. So, for example when the estates of the victims sue the cop and the city and the insurance carrier, that's probably exactly what they'll do.
Posted by: Ben P | August 31, 2010 1:27 PM
Illinois law is very specific on who can draw blood that is legally suitable for DUI prosecution. Apparently the usual phlebotomist or med tech is not acceptable to them.
They are also specific on where this blood sample must be drawn.
Why the "experienced investigator" didn't think about those requirements when he had the blood taken by the conveniently close lab tech in the non-hospital clinic ... who knows.
Posted by: Tsu Dho Nimh | August 31, 2010 1:27 PM
With regards to the "uncertified" lab technician, we can safely assume that members of the "elite" Fatal Alcohol Crash Team (FACT) would have known about this loophole in the law. By their own admission, they have never had any evidence thrown out since their creation in 2002. Eight years and their only mistake happens to benefit one of their own? We don't buy it. Also, there were over 6 officers identified on the scene talking to or standing near the drunk driver; and they are asking us to believe that not one of them suspected that a person who was trained in emergency vehicle operations somehow managed to plow into 2 parked motorcycles at 11:15am on a sunny day?
Posted by: Angry hoosier | August 31, 2010 1:28 PM
@24 Tsu Dho Nimh, and others.
The actual draw was taken at the Methodist occupational therapy clinic. That is a one-story building across the street (Capitol Avenue) from Methodist Hospital, a ten-story Category I trauma center with a helipad on the roof for dust-offs, with at least two ER entrances, and with great big signs all over the place.
Plus, it was a bright sunny day.
Easy to make a minor mistake, don'cha think?
fusilier
James 2:24
Posted by: fusilier | August 31, 2010 2:17 PM
Ben P @ 18: Yeah, I've known people who could act sober with a BAC that would kill lesser mortals. Tho I'm inclined to agree with other posters who suspect the inability of the other officers to notice his intoxication had more to do with the suspect being a fellow officer. Call me cynical.
I'm just glad to see there were consequences for the senior officers who helped cover it up.
Posted by: WScott | August 31, 2010 2:34 PM
You probably could argue it doesn't matter either way.
If someone truly has the kind of tolerance that would allow them to act reasonably sober with a .2 BAC, that person is almost invariably an off the deep end alcoholic. Personal history will reveal something like that he's drunk half a gallon of whiskey every night for 15 years. The fact that he had a .2 BAC at 11am is pretty good corroborating evidence.
I agree that it's pretty implausible that trained officers wouldn't realize their co-worker was piss drunk, but I find it equally implausible that he could have a drinking problem of that magnitude and no one he worked with realized it.
Posted by: Ben P | August 31, 2010 2:46 PM
I'm sure his "sponsor" noticed it and was councilling him.
Posted by: Chilidog | August 31, 2010 3:04 PM
There is an apple orchard northwest of Chicago that is run by fundy types. Nice people, they don’t push it too much (although the shop does carry a variety of religious Tchotchkes,). We rarely go there anymore as their prices have gotten too high, they have gotten too crowded with the closing of several orchards closer to the city and most importantly, they are closed on Sunday.
In a way, I have to admire that. Weekends in the fall are prime time for pick your own orchards. The fact that they deliberately cut a huge chunk out of their potential yearly profits for the sake of their religion says that they are consistent if nothing else.
Posted by: Chilidog | August 31, 2010 4:02 PM
Ignore that, it was intended for the other thread.
Posted by: Chilidog | August 31, 2010 4:06 PM
Anybody besides me see these untouchable police cases as points along the same spectrum that features similar treatment for the Bush administration war criminals, torturers, and traitors?
Posted by: Grumpy | August 31, 2010 5:40 PM
According to Indy's RTV6 news at 6 the city of Indianapolis got a letter from the survivors attorney today, some kind of tort letter they said. The survivor is in a coma-like state and the attorney also released pictures of him. Apparently there is some sort of investigation going on too, from the city council or something I think. I don't see the story up on their website yet, it just aired a few minutes ago, but here's the stories about it so far .
Posted by: whistlenpete | August 31, 2010 6:13 PM
Fffffffuuuu- >.
Posted by: WMDKitty | August 31, 2010 11:49 PM
ARRRRGGGHHH!!!!
http://www.theindychannel.com/news/24734491/detail.html
The supposedly experienced "FACT" investigator, a Lieutenant, corrected the lab tech who was drawing the blood on TWO details about the draw.
BUT didn't get the big detail that a lab tech is not legally acceptable to draw BAC samples, AND they were not in the legally required hospital setting!
And then he went and had lunch and visited with some buds instead of taking the samples to the lab. This did not of itself affect the results, because the preservative in the sample vials stops all metabolic activity. We got samples by mail and they were OK.
Posted by: Tsu Dho Nimh | September 1, 2010 4:59 AM
@MikeMa: Frequently there's too much work to do and someone will be asked to do something which they are qualified to do but not authorized to do (for example, asking a civilian forensics person to bring a sack full of drugs to the office in charge of disposal when they know full well only cops are authorized to transport the drugs). So I'd guess that the technician has the skills but didn't go to the appropriate training courses to get a piece of paper that says they're allowed to do that particular type of forensic work. Unfortunately, the lawyers will play it as if the person was incompetent and at the very least insist that the "correct procedure" (not necessarily correct, but the established procedure) had not been followed and so the judge must assume the evidence is inadmissible.
Posted by: MadScientist | September 1, 2010 7:31 AM
I'm surprised that they didn't just hand in someone else's samples.
"Officer O'Malley? I have good news and bad news..."
O: "OK, give me the good news, first."
"Well, the good news is that you had no blood alcohol in your sample."
O: "And what's the bad news?"
"You have AIDS and you're pregnant."
Posted by: Marcus Ranum | September 1, 2010 12:22 PM
The story so far implies that we have seen a criminal conspiracy by a number of folks in the Police Department. It's clearly time to see a federal prosecutor go through this department with a fine-toothed comb.
Posted by: freelunch | September 2, 2010 8:24 AM
Follow up
http://blogs.indystar.com/crime/Curry_LegalMemorandum_8_30_2010.pdf
an interesting analysis of the current Indiana law.
Posted by: Chilidog | September 2, 2010 3:43 PM
I thought you did not have to be certified in the state of Indiana to draw blood/phlebotomy.
It's a shame that Officer Bisard did not admit he was wrong and apologize to the families involved. He must not realize that Karma is a b****
Posted by: flabergasted | September 6, 2010 1:06 AM