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Bisard v. State

Court of Appeals of Indiana

March 4, 2015

David Bisard, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Page 1061

[Copyrighted Material Omitted]

Page 1062

Appeal from the Allen County Superior. Court Cause No. 02D06-1302-FB-32. Honorable John Surbeck, Judge.

ATTORNEY FOR APPELLANT: Victoria L. Bailey, Marion County Public Defender Agency Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Cynthia L. Ploughe, Deputy Attorney General Indianapolis, Indiana.

Friedlander, Judge. Kirsch, J., and Crone, J., concur.

OPINION

Page 1063

Friedlander, Judge.

[¶ 1] Following a jury trial, David Bisard was convicted of Operating a Vehicle with a Blood Alcohol Content of .15 or Higher Causing Death, a class B felony,[1] and two counts of Operating a Vehicle with a Blood Alcohol Content of More Than .08 Percent Causing Serious Bodily Injury, class D felonies.[2] Bisard was subsequently sentenced to an aggregate term of sixteen years executed with three years suspended to probation. On appeal, Bisard presents three issues for our review:

1. Was Bisard denied his right to present a defense when the trial court ruled that if Bisard presented evidence from several witnesses that he was not a heavy drinker in response to expert testimony offered by the State, he would open the door to evidence of his subsequent arrest for operating a vehicle while intoxicated?
2. Did the trial court abuse its discretion in denying Bisard's motion for mistrial based upon issues relating to juror misconduct?
3. Did the trial court abuse its discretion when for purposes of sentencing it considered as an aggravating factor that Bisard had abused police power and breached the public trust?

[¶ 2] We affirm.

[¶ 3] On August 6, 2010, David Bisard, then an officer with the Indianapolis Metropolitan Police Department (IMPD), responded to a radio run to assist other IMPD officers who were pursuing a subject with an outstanding arrest warrant in the area of 42nd Street and Priscilla. Bisard was in uniform and driving his marked vehicle. While en route Bisard activated his emergency lights and siren. Bisard was traveling westbound on East 56th Street " weaving in and out of traffic" and travelling approximately seventy-four to seventy-five miles per hour. Transcript at 680. Near the intersection of East 56th Street and Brendan Way South Drive, Bisard's vehicle collided with two motorcycles stopped in the drive-through lane at that intersection. Eric Wells died as a result of the injuries sustained in the accident. Mary Mills and Kurt Weekly were both seriously injured. Shortly after impact, Bisard informed the IMPD control operator that he had been involved in an accident and requested that medics be rushed to the scene.

Page 1064

[¶ 4] Several members of IMPD, including members of the IMPD command staff, fire personnel from various agencies, and medical personnel (collectively, First Responders) were immediately dispatched to the scene. Several First Responders had close, face-to-face interaction with Bisard while treating him for minor injuries he received as a result of the accident. Those who interacted with Bisard at the scene testified that Bisard did not exhibit any signs of intoxication, such as bloodshot eyes, unsteady balance, or slurred speech. Several others testified that there was no indication that Bisard was intoxicated.

[¶ 5] Bisard was eventually taken to Methodist Occupational Health Center for further treatment of his injuries. There, as a matter of standard procedure, Bisard was advised of Indiana's implied consent law, and he consented to a blood draw. The blood results showed that Bisard's blood-alcohol content was 0.19.

[¶ 6] On January 12, 2011,[3] the State charged Bisard with Count I, class B felony operating a motor vehicle with a blood alcohol-content of .15 or higher causing the death of Eric Wells; Count II, class C felony operating a vehicle while intoxicated causing the death of Eric Wells; Count III, class C felony reckless homicide; Count IV, class D felony operating a motor vehicle while intoxicated causing serious bodily injury to Kurt Weekly; Count V, class D felony operating a motor vehicle with a blood-alcohol content of .08 or higher causing serious bodily injury to Kurt Weekly; Count VI, class D felony operating a motor vehicle while intoxicated causing serious bodily injury to Mary Mills; and Count VII, class D felony operating a motor vehicle with a blood-alcohol content of .08 or higher causing serious bodily injury to Mary Mills. Two additional charges of criminal recklessness, Counts VIII and IX, were subsequently added.

[¶ 7] On February 4, 2011, Bisard filed a motion to suppress blood evidence and/or dismiss the charges, and the court subsequently held a hearing thereon. On May 31, 2011, the trial court ruled that the blood evidence would be suppressed as to the Title 9 charges for OWI but allowed that evidence for the charge of reckless homicide. Upon requests by both parties, the trial court certified its order for interlocutory appeal, and this court accepted jurisdiction. This court reversed the trial court, finding that the blood evidence was admissible with respect to all charges. See Bisard v. State, 973 N.E.2d 1229 (Ind.Ct.App. 2012), trans. denied.

[¶ 8] On February 14, 2013, the trial court granted Bisard's request for change of venue. The Allen County Superior Court accepted jurisdiction on February 19, 2013. A jury ...


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