drunk officer kills motorcyclist

[IndyMonkey]

The president of the fop was on tv two nights ago, saying that they were not going to provide a lawyer because of the alcohol use.

 

[Fargo]

The president of the fop was on tv two nights ago, saying that they were not going to provide a lawyer because of the alcohol use.

I recall hearing that but I also recall hearing that they wanted DNA confirmation that it was actually the officer's blood before making a final decision. With the alleged defects in the test and John Kautzman (who is the FOP's go to guy) being on the case; I am skeptical that the FOP has bowed out entirely.

Best,


Joe

 

[Fargo]

Here is the defense's motion opposing suspension of Bisard's license. As I suspected, the defense claims that a mandatory blood draw in the absence of PC is unconstitutional. They also appear to claim that the statute should be construed in the fashion that I first thought it read, namely that subs 1,2 and 3 are prerequisites.

Converted file jts

While I disagree that subs 1,2, and 3 are prerequisites, off the top of my head I recall some caselaw which would indicate that mandatory blood draws with no PC are going to run into constitutional problems.

The reason it has probably never come up in Indiana is because dang near everyone who is over a .08 and killed someone showed signs of intoxication which gave rise to PC.

While certainly not directly on point, this case that rtv6 has linked seems to support the position that a non-consensual blood draw without PC is going to be illegal. Since Implied Consent is facially coercive since it threatens a significant license suspension, I doubt that consent given in light of that threat would be found to be non-coerced.

Converted file jts

See especially the final footnote to the opinion.

I suppose it all hinges on whether or not the blanket requirement that fatality accident drivers perform a test is found constitutional. I suspect it will not be but that is pure speculation.

Best,


Joe

 

[E5RANGER375]

I think the consent was given by him under the DOT regulations.

 

[j706]

The main thing that puzzles me about this case is the officer has extensive experience with OWI's. Based on that fact why did he submit to the blood draw? Think about it,if he knew he was intoxicated why not just take the administrative punishment by refusing the draw? I find it highly unlikely that a judge would have granted a search warrant due to everyone saying they saw no signs of impairment. The crash in and of it's self would not be PC for a BDW.

Anyone that has been around LE for a while is going to know that the crash he was involved in would most likely end with job loss and maybe even criminal charges. But then we have the issue of the brake problems that very morning. That alone combined with his good record could mitigate any criminal or admin charges from the crash.

What did he have to loose by not cooperating. If he was in fact impaired then he had much more to loose by cooperating. I don't drink at all. But if I did and if I was on duty while intoxicated and I was involved in a crash, there ain't no way I would have submitted to any test. Just thinking. Somethings is weird with this.

Hey if the guy was in fact intoxicated that he deserves whatever he gets. Maybe I am a little biased but this is strange IMO.

 

[paddling_man]

You know? I came back into this thread with the thought that we should give the living some time to heal and the deceased some time to rest... Then I saw below.

Here is the defense's motion opposing suspension of Bisard's license. As I suspected, the defense claims that a mandatory blood draw in the absence of PC is unconstitutional.

If this is true then... wow. Just wow. No one trumps the victim's family for pain-endured but the quote above, assuming it is accurate, just has to make it that much harder for the good guys. It's got to make a hard job harder knowing that when folks see you in uniform, the drunken fatality comes to mind.

Good luck, folks. Godspeed, Mr. Wells.

 

[j706]

The officer has the same rights and protection that all other citizens have. The rule of law MUST be followed. If not the accused person can walk. This case is tragic all around. Very bad deal.

 

[Fargo]

I think the consent was given by him under the DOT regulations.

Not DOT regs but under Indiana's Implied Consent law. The problem is that implied consent reads something along the lines of (off the top of my head):

You have been involved as a driver in an accident causing death. I am now required to offer you a chemical test of your blood. If you refuse, your license will be suspended for 1 year. If you have a prior conviction for operating while intoxicated, your license will be suspended for 2 years. Will you now take the test?

Since the threat of the license suspension is coercive and there was no PC to believe he was intoxicated, they are claiming the consent was invalid.

It appears that the Indiana Ct. of Appeals considered circumstances almost identical to the ones in this case in Brown v. State and upheld the constitutionality of the blood draw completely absent PC.

No.?66A05-0007-CR-270. - BROWN v. STATE - IN Court of Appeals

I don't know if the U.S. and Indiana Supremes would agree or not, but it definitely makes it an uphill battle for the defense.

Best,


Joe






​

 

[Indy317]

I recall hearing that but I also recall hearing that they wanted DNA confirmation that it was actually the officer's blood before making a final decision. With the alleged defects in the test and John Kautzman (who is the FOP's go to guy) being on the case; I am skeptical that the FOP has bowed out entirely.

I believe the FOP has bowed out. However, I have two conflicting stories on how the FOP legal defense fund works. In one case, a guy I know faced a laughable "Intent to sue" incident. He went to the FOP and had to give his side of the story about what happened. He said the board voted to give him legal defense. He then went and spoke with Kautzman or someone at that firm, who basically told him not to worry about unless an actual lawsuit is filed. Another LEO told me that from their understanding, FOP legal defense is like pre-paid legal, and even if you did wrong, you get covered.

Depending on how legal defense really works, who knows if the FOP is paying or not. Just because Kautzman is involved doesn't mean the FOP is involved. I believe Kautzman is a good lawyer. This officer or his family maybe paying Kautzman. I know the Sheriff of Hancock County got Voyels as his lawyer. Funny how all these people who have financial issues and get busted for stealing money manage to get enough money to hire these higher price attorneys.

As far as the constitutionality of the blood draw, I could see this going to the US Supreme Court. I see two issues they might try to make:

#1: While the officer could have said no and gotten a ticket, he also may have been fired, so would Garrity come into play here?

#2: I can see the US Supreme Court allowing the law "for the greater good" or whatever terminology they used to allow the state to set-up DUI checkpoints. Some while it may seem totally unconstitutional, nothing is set in stone.

This case will be one to watch. There are many people already upset at the handful of hours the officer spent down at the APC, and his relatively low bail given the death involved.

The main thing that puzzles me about this case is the officer has extensive experience with OWI's. Based on that fact why did he submit to the blood draw? Think about it,if he knew he was intoxicated why not just take the administrative punishment by refusing the draw? I find it highly unlikely that a judge would have granted a search warrant due to everyone saying they saw no signs of impairment. The crash in and of it's self would not be PC for a BDW.

The only thing I can think of is that he figured if he went ahead with it, he could argue Garrity makes it inadmissible??

Not DOT regs but under Indiana's Implied Consent law. The problem is that implied consent reads something along the lines of

It appears that the Indiana Ct. of Appeals considered circumstances almost identical to the ones in this case in Brown v. State and upheld the constitutionality of the blood draw completely absent PC.

No.?66A05-0007-CR-270. - BROWN v. STATE - IN Court of Appeals

I don't know if the U.S. and Indiana Supremes would agree or not, but it definitely makes it an uphill battle for the defense.
​

Good find on that case. My guess is that we could see this go to the US Supreme Court, but I feel they will do a "For the greater good." type ruling, and allow such actions absent PC or any other evidence of intoxication.

 

[Eddie]

I believe the FOP has bowed out. However, I have two conflicting stories on how the FOP legal defense fund works. In one case, a guy I know faced a laughable "Intent to sue" incident. He went to the FOP and had to give his side of the story about what happened. He said the board voted to give him legal defense. He then went and spoke with Kautzman or someone at that firm, who basically told him not to worry about unless an actual lawsuit is filed. Another LEO told me that from their understanding, FOP legal defense is like pre-paid legal, and even if you did wrong, you get covered.

Depending on how legal defense really works, who knows if the FOP is paying or not. Just because Kautzman is involved doesn't mean the FOP is involved. I believe Kautzman is a good lawyer. This officer or his family maybe paying Kautzman. I know the Sheriff of Hancock County got Voyels as his lawyer. Funny how all these people who have financial issues and get busted for stealing money manage to get enough money to hire these higher price attorneys.

As far as the constitutionality of the blood draw, I could see this going to the US Supreme Court. I see two issues they might try to make:

#1: While the officer could have said no and gotten a ticket, he also may have been fired, so would Garrity come into play here?

#2: I can see the US Supreme Court allowing the law "for the greater good" or whatever terminology they used to allow the state to set-up DUI checkpoints. Some while it may seem totally unconstitutional, nothing is set in stone.

This case will be one to watch. There are many people already upset at the handful of hours the officer spent down at the APC, and his relatively low bail given the death involved.



The only thing I can think of is that he figured if he went ahead with it, he could argue Garrity makes it inadmissible??



Good find on that case. My guess is that we could see this go to the US Supreme Court, but I feel they will do a "For the greater good." type ruling, and allow such actions absent PC or any other evidence of intoxication.

Several different things can factor into why an officer gets one of those "high priced lawyers".

-They might pay into a legal defense fund. This works like pre-paid legal. It is basically insurance against legal fees; depending on the plan, if the officer has paid his premiums then he gets discounted or free services. This might be available even if they are defending against a criminal charge, depending on the plan.

-The FOP, as a fraternal organization can vote to donate money to any cause they want to support, including legal defense

-Individuals who are facing the loss of their freedom and their career will go to great lengths to prevent that from happening. They will mortgage houses, sell cars, boats, guns and motorcycles, borrow money from friends and relatives and basically do anything they can to get the lawyer they want. Cops will often hire the same lawyer that the FOP uses because that is who they know and trust, other cops might go straight to the criminal defense attorney who always beats them in court because that is who they know can get the job done.

-Some lawyers will take a high profile case on a mere promise to pay or at a reduced rate because they will get a lot of free advertising from the publicity generated by a high profile case.

 

[Timjoebillybob]

As far as the constitutionality of the blood draw, I could see this going to the US Supreme Court. I see two issues they might try to make:

#1: While the officer could have said no and gotten a ticket, he also may have been fired, so would Garrity come into play here?

#2: I can see the US Supreme Court allowing the law "for the greater good" or whatever terminology they used to allow the state to set-up DUI checkpoints. Some while it may seem totally unconstitutional, nothing is set in stone.


The only thing I can think of is that he figured if he went ahead with it, he could argue Garrity makes it inadmissible??

Can you explain how Garrity works in IN. I've looked online and found some conflicting info on it. Paraphrasing one of them said they have to read you(general you) the warning and you could use 5th to refuse answering but your refusal to answer could be used against you in administrative hearings.

The other said that Garrity had to be invoked by the person being questioned, and if they wanted to continue they had to grant "use immunity" so if they were going to force you to answer under threat of losing your job, what you said could not be used against you criminally.

I think I got it right.

 

[Fargo]

Can you explain how Garrity works in IN. I've looked online and found some conflicting info on it. Paraphrasing one of them said they have to read you(general you) the warning and you could use 5th to refuse answering but your refusal to answer could be used against you in administrative hearings.

The other said that Garrity had to be invoked by the person being questioned, and if they wanted to continue they had to grant "use immunity" so if they were going to force you to answer under threat of losing your job, what you said could not be used against you criminally.

I think I got it right.

It looks to me like you have it basically correct but are referencing 2 different sets of circumstances.

It looks like your first paragraph applies after the question has been asked with the threat of discipline, the 5th Amendment has been asserted by the officer, criminal immunity is present under Garrity, and the officer still refuses to answer. At that point the warning is to inform the officer that his refusal to answer can now be legally used for employment discipline.

Your second paragraph takes us back to a potentially incriminating question being asked and the officer needing to assert his 5th Amendment right.

Garrity is a federal doctrine based on the 5th Amendment right to remain silent so it applies the same in all states.

This link explains it quite well:

Quick Reference Guide to the Garrity Right | Police Officers Association of Michigan Blog

Best,


Joe

T

 

[Timjoebillybob]

It looks to me like you have it basically correct but are referencing 2 different sets of circumstances.

Quick Reference Guide to the Garrity Right | Police Officers Association of Michigan Blog

Best,


Joe

T

Thanks for the link. I understood that the protection afforded under Garrity applied to all states, but from the other sites it seemed that it depended on the state as to how that protection was afforded. IOW Some states had the warning before any questioning similar to miranda and others the officer had to invoke it.

But to make sure I have it right it goes like this. 1) questioning begins 2) officer refuses under the 5th 3) They offer use immunity 4) officer can either accept the immunity and any statements made cannot be used against him criminally or he can continue to refuse and his refusal can be used against him in administrative hearings.

Sound about right?

 

[j706]

As far as the FOP legal defense fund I don't know if the accused officer is a LDF member or not. If so I would be inclined to think his case would be covered. I think some people might be confusing the FOP and the FOP legal defense fund. They are related but not the same if that makes sense.

I would not dream of working a shift without being a paid FOP legal defense fund member. I have never had the need to use them but the peace of mind alone is worth the $$$ I spend on it. Way too many chiefs and agency's are way too eager to hang you out to dry by caving to political crap.

 

[ihateiraq]

this thread has turned into a class on indiana law. except you have multiple professors, and most of them are just making **** up. ive calculated it, and its worth -8 credit hours.

 

[JetGirl]

you have multiple professors, and most of them are just making **** up. ive calculated it, and its worth -8 credit hours.

Studies show that 69.3% of all statistics are made up on the spot.
...and five out of four people have trouble with fractions.

 

[ihateiraq]

Studies show that 69.3% of all statistics are made up on the spot.
...and five out of four people have trouble with fractions.

this actually sums it up pretty well.

 

[JetGirl]

this actually sums it up pretty well.

Reps for playing...

 

[Jack Ryan]

In our paper the story about the drunk cop who killed some one while he was drunk in a squad car was on the same page of the paper with the article about the "Police Crack Down on Drunk Drivers". He got awards from MADD several years in a row for busting drunk drivers.

What next, I bet cops who bust speeders will be speeding?

 

[DragonGunner]

Sounds like the cop was drinking what he confiscated from the drunk drivers, cheaper than buying.