drunk officer kills motorcyclist

[Fargo]

double tap

 

[Fargo]

Well, Channel 6/WRTV is reporting the issues there might be with the blood draw. It is basically coming down to Garrity Rights vs. state implied consent law. It will be very interesting how this all plays out.

Fatal DUI Charges Against Officer May Not Hold Up - Indiana News Story - WRTV Indianapolis

http://www.theindychannel.com/download/2010/0813/24625041.pdf

Very interesting question. I believe the statute in question is:

IC 9-30-7-3
Offer of test; administration of test
Sec. 3. (a) A law enforcement 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. If:
(1) the results of a portable breath test indicate the presence of alcohol;
(2) the results of a portable breath test do not indicate the presence of alcohol but the law enforcement officer has probable cause to believe the person is under the influence of a controlled substance or another drug; or
(3) the person refuses to submit to a portable breath test;
the law enforcement officer shall offer a chemical test to the person.
(b) A law enforcement officer may offer a person more than one (1) portable breath test or chemical test under this section. However, all chemical tests must be administered within three (3) hours after the fatal accident or the accident involving serious bodily injury.
(c) It is not necessary for a law enforcement officer to offer a portable breath test or chemical test to an unconscious person.
As added by P.L.2-1991, SEC.18. Amended by P.L.275-2001, SEC.3.

[strike]The kicker is the bold part. I don't see how any of these apply here since he wasn't PBT'd.

The problem is that they appear to have read him an implied consent card indicating that his license would be suspended for refusal*, when that was not the case since they hadn't satisfied the bold part.


Whether that voids that consent or not, I don't know.[/strike]

ETA: Disregard the struckout part, after several posters pointing out that I missed a semicolon and was reading the statute wrong, I no longer believe it is correct.

If it does, they have a real problem because he was required by dept policy to give the test or face adverse employment decisions.. However, at that point his Garrity rights would kick in since cops can be ordered to give up some of their constitutional rights or lose their job. Garrity basically makes evidence coerced in that fashion inadmissable in a criminal proceeding.

Either way, heads far beyond Bisard are gonna roll on this and it isn't going to be pretty, assuming the below premises are true:

-Whoever was involved in the decision to send the car out with bad brakes is in a bad way.

-Whoever should have contacted the on-call prosecutor to avoid these problems also is gonna have some trouble.

-Anyone involved in letting external alcohol anywhere near the test is gonna have problems.

-Any officer Bisard came into contact with prior to this wreck is gonna have trouble. If this guy was so messed up that he toasted those bikers in this fashion BECAUSE OF ALCOHOL, people should have been able to tell both before and after.

-If it comes back the test results are erroneous, there is gonna be a real problem.

At this point, I don't accept anything about this case as true other than that he hit and killed them. There is just too much that doesn't add up no matter how you look at it.

It may be that the reckless homicide count is the only one that goes anywhere.

Best,


Joe

*

IC 9-30-7-5
Refusal to submit to test; penalties and recidivism; suspension of license
Sec. 5. (a) A person who refuses to submit to a portable breath test or chemical test offered under this chapter commits a Class C infraction. However, the person commits a Class A infraction if the person has at least one (1) previous conviction for operating while intoxicated.
(b) In addition to any other penalty imposed, the court shall suspend the person's driving privileges:
(1) for one (1) year; or
(2) if the person has at least one (1) previous conviction for operating while intoxicated, for two (2) years.
As added by P.L.2-1991, SEC.18. Amended by P.L.275-2001, SEC.4; P.L.94-2006, SEC.9.

 

[hornadylnl]

Let's see if I have this straight. Law requires a drug and alcohol test in any fatal accident, be it a 16 year old, a 90 year old grandma or a leo. What is the purpose of this draw if it weren't evidence in a potential criminal trial? For a civilian, the test results are admissible but for a leo they are not?

I'm not a proponent of vigilante justice but what other recourse do the people have when our governments fails to administer justice? Especially when they fail to administer justice to one of their own.

John Edwards was right. There ARE 2 Americas. One for us peasants and one for government employees.

 

[Benny]

Whoever was involved in the decision to send the car out with bad brakes is in a bad way.

Why? I'm pretty sure HE knew something was wrong with the ABS.



BTW, I must have gotten really lucky, because I drove my first car(no ABS) for about 8 years and never killed ANYONE.

 

[Brett]

this story is rediculous. double standards for sure. this is the kind of crap that makes me suspicious of LE, and rightly so.

if he walks due to a technicality then i hope one of the victims family members nails him

I strongly believe that what goes around comes around. I am not saying that family members should take the law into their own hands. But maybe someday a drunk cop will wreck into this drunk dumbass cop. That's my kind of justice.

 

[Fargo]

Let's see if I have this straight. Law requires a drug and alcohol test in any fatal accident, be it a 16 year old, a 90 year old grandma or a leo.

[STRIKE]That is not the law. You are skipping the 3 prerequisites I bolded in the statute above.
[/STRIKE]

ETA: Disregard the above, it is probably wrong.

For a civilian, the test results are admissible but for a leo they are not?

You are comparing apples to oranges. Civilians can't be fired by the state for refusing to surrender their constitutional rights. Cops can and so as to protect those rights, if that coercion is involved in getting evidence it is inadmissable.

The question here is whether Bisard's consent was legally free of coercion. I honestly don't know the answer. Keep this in mind, Bisard had a right to refuse to give his blood, just like any other citizen. In this case, if he did that, it appears there is no chance that he is convicted of OWI. He chose to give up his right in the matter and consent. Don't you think it matters whether that was a free choice or one coerced by the state?


Best,


Joe

 

[Benny]

I think he was referring to those on the higher end of the BAC scale. But I disagree. With over a decade in the fire service, I cut enough dead bodies out of cars from wrecks caused by "buzzed" drivers.

Yep. Buzzed driving IS drinking and driving.

 

[Fargo]

Why? I'm pretty sure HE knew something was wrong with the ABS.

Because, assuming its true and all the liability create by Bisard aside, that person opened up the city to an incredible amount of tort liability in addition to stoking fuel on a PR nightmare. That is something the city is unlikely to tolerate.

Joe

 

[1032JBT]

That is not the law. You are skipping the 3 prerequisites I bolded in the statute above.

Best,


Joe

I understand what you are saying however in the part above what you bolded it says:

"A law enforcement officer shall offer a portable breath test or chemical test"



You will notice in there it says a PBT OR a chemical test. It is routine to go straight to a blood draw regardless of who the involved driver was or their part in the accident.

 

[hornadylnl]

Actually, it looks like the part above the bolded is the key here. From previous posts, I was under the understanding that alcohol screens were a 100% requirement in a fatal accident. The way I read that staute is that it is up to driver discretion. Does he have reason to believe that alcohol was a factor.

Surely the fact that the operator of that vehicle being a cop wouldn't have clouded other officers' discretion, would it? This cop is clearly above the law.

 

[hornadylnl]

I understand what you are saying however in the part above what you bolded it says:

"A law enforcement officer shall offer a portable breath test or chemical test"



You will notice in there it says a PBT OR a chemical test. It is routine to go straight to a blood draw regardless of who the involved driver was or their part in the accident.

Yes, but I think you missed the loophole. Officer who has reason to believe.

I think most peoples' "reason to believe" will be skewed by the party involved. Is the party your mother, the punk you arrested last week, or a fellow officer you hang out with after hours?

 

[MinuteMan47]

Murder is an intentional act. Do you really think this cop woke up that day and said, "I'm going to kill someone today!"? Of course not. And if you thought that, you're just being intellectually dishonest.

No, actually I'm not.

What he should have said was "I'm NOT going to kill someone today, so I WON'T DRIVE while intoxicated."

After he THOUGHT about it HE MADE A CHOICE.

 

[Fargo]

Actually, it looks like the part above the bolded is the key here. From previous posts, I was under the understanding that alcohol screens were a 100% requirement in a fatal accident. The way I read that staute is that it is up to driver discretion. Does he have reason to believe that alcohol was a factor.

Surely the fact that the operator of that vehicle being a cop wouldn't have clouded other officers' discretion, would it? This cop is clearly above the law.

[STRIKE]Nope, you and FPD are both missing the word "if":[/STRIKE]

IC 9-30-7-3
Offer of test; administration of test
Sec. 3. (a) A law enforcement 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. If:
(1) the results of a portable breath test indicate the presence of alcohol;
(2) the results of a portable breath test do not indicate the presence of alcohol but the law enforcement officer has probable cause to believe the person is under the influence of a controlled substance or another drug; or
(3) the person refuses to submit to a portable breath test;
the law enforcement officer shall offer a chemical test to the person.

[STRIKE]3a only applies IF sub 1,2 or 3 are met.
[/STRIKE]

Disregard the above, it appears I was wrong.
Best,


Joe

 

[hornadylnl]

Nope, you and FPD are both missing the word "if":




3a only applies IF sub 1,2 or 3 are met.

Best,


Joe

I'm not a lawyer and don't want to be one but I still read all of that as saying the administration of that test is up to officer discretion and NOT "all parties involved WILL be tested.

 

[E5RANGER375]

Nope, you and FPD are both missing the word "if":




3a only applies IF sub 1,2 or 3 are met.

Best,


Joe

Fargo, I appreciate your explaining all this. but damn I cant believe the law is written in such a way that a normal person cant understand it. that should be illegal, that i have to hire a layer with a minimum $500 retainer to interpret the law to me, and even then it might not be the way the judge sees it. This system is beyond repair because every numnutz has had their hands in it and tried to become famous for making more laws, etc.

 

[hornadylnl]

Fargo,

Your last post further proves my point about written laws that I made earlier in this thread. If an officer of the law has trouble interpreting it, how in the f are us lowly peasants supposed to understand and abide by them?

 

[Timjoebillybob]

IC 9-30-7-3
Offer of test; administration of test
Sec. 3. (a) A law enforcement 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. If1) the results of a portable breath test indicate the presence of alcohol;
(2) the results of a portable breath test do not indicate the presence of alcohol but the law enforcement officer has probable cause to believe the person is under the influence of a controlled substance or another drug; or
(3) the person refuses to submit to a portable breath test;
the law enforcement officer shall offer a chemical test to the person.

3a only applies IF sub 1,2 or 3 are met.

Best,


Joe

Fargo, IANAL and I think you are. But from how I read it, and officer shall offer a pbt or chemical test. Sub 1,2 or 3 only refer if the officer offers a pbt. IOW it's up to the officer which he wants to offer first but if he offers the pbt and one of the 3 following conditions apply he has to offer the chemical test.

 

[Fargo]

Fargo, IANAL and I think you are. But from how I read it, and officer shall offer a pbt or chemical test. Sub 1,2 or 3 only refer if the officer offers a pbt. IOW it's up to the officer which he wants to offer first but if he offers the pbt and one of the 3 following conditions apply he has to offer the chemical test.

You, and several other posters, make an excellent point. I think I missed the below bolded semi-colon when I read the statute:

IC 9-30-7-3
Offer of test; administration of test
Sec. 3. (a) A law enforcement 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. If1) the results of a portable breath test indicate the presence of alcohol;
(2) the results of a portable breath test do not indicate the presence of alcohol but the law enforcement officer has probable cause to believe the person is under the influence of a controlled substance or another drug; or
(3) the person refuses to submit to a portable breath test;
the law enforcement officer shall offer a chemical test to the person.

Reading the red part as independent of sub 3 makes more sense than the way I was reading it.

My apologies to you guys, I am pretty sure I was wrong that 3a is dependent upon subs 1,2 and 3.

Read that way, I'm doubtful that the defense has much of an argument that the test is inadmissible as long as implied consent was properly read. It appears to me that the defense is arguing that 9-30-7-3 is an unconstitutional statute where there is no independent basis for believing a person is intoxicated.

Best,


Joe
​

 

[hornadylnl]

Even lawyers have trouble reading this garbage. If we as a nation can't fix our obviously broken legal system, what hope do we have?

You, and several other posters, make an excellent point. I think I missed the below bolded semi-colon when I read the statute:

Reading the red part as independent of sub 3 makes more sense than the way I was reading it.

My apologies to you guys, I am pretty sure I was wrong that 3a is dependent upon subs 1,2 and 3.

Read that way, I'm doubtful that the defense has much of an argument that the test is inadmissible as long as implied consent was properly read. It appears to me that the defense is arguing that 9-30-7-3 is an unconstitutional statute where there is no independent basis for believing a person is intoxicated.

Best,


Joe
​

 

[downzero]

Even lawyers have trouble reading this garbage. If we as a nation can't fix our obviously broken legal system, what hope do we have?

I actually agree with you, and I'm paying a LOT of money to go to law school.

No, actually I'm not.

What he should have said was "I'm NOT going to kill someone today, so I WON'T DRIVE while intoxicated."

After he THOUGHT about it HE MADE A CHOICE.

That doesn't make him a murderer. Three posts later and you still can't understand the distinction between murder and manslaughter. It ain't that difficult.

Ranger: (since I don't have permission to quote you)


FWIW........the defense lawyers in his case will do the same thing they do for any other client, try to get him off. I don't agree with it with others and I don't agree with it for him. I agree if he is guilty he should just own up and get what he gets, but that isn't the American way now is it. That fact isn't different for him just because he is a cop. And the FOP does not provide lawyers when the cop is the defendant in a criminal case so any lawyer fees he is paying is coming out of his pocket just as they would come out of your pocket if you were in his shoes.

I have more confidence in the system than that. If he's guilty, it'll come out at trial, if it goes to trial.

I find it disgusting that cops don't like defense lawyers. It almost suggests that you have no belief at all in the judicial system.

FOP doesn't provide lawyers for cops in criminal cases? I find that very hard to believe. This case has particularly insane facts, but I find it hard to believe that the FOP didn't defend the people who beat Rodney King, or similar cases. What's the point of having a union if they don't even help their members?

the alcohol swab DID NOT skew the results. thats just defensive mumbo jumbo.

This is a statement of fact that may very well be false. If the facts are as we initially thought, this dude is gonna do some hard time. Either way, it's for a jury to decide.