DUI Law Was Amended to Allow Lab Techs to Conduct Tests
But legal experts say Bisard test still would have been inadmissible
The law which prompted the dismissal of drunken-driving charges against an I-M-P-D officer was amended this year -- but not enough to salvage the case.
Marion County Prosecutor Carl Brizzi dropped four alcohol-related counts against David Bisard on Thursday, explaining that the test which showed him with a blood-alcohol level of .19% would be inadmissible because it was taken by a lab technician, and at an occupational health center, not a hospital.
The Indiana Court of Appeals ruled a year ago the law doesn't let a lab technician do your blood-alcohol test -- the law says "certified phlebotomist," and Indiana has no such certification.
In March, legislators eliminated that language, and said anyone with the proper training, including a lab tech, can take blood -- but they still have to follow established protocols, or be under the supervision of a doctor.
Former Indiana University law professor Henry Karlson says that's where the test conducted on Bisard appears to have gone off the rails: the lab technician who drew his blood didn't meet either of those criteria.
"I've been told that if a physician had walked by the door while the man was doing the blood sample, they would have fought it," Karlson says. "But there wasn't a physician supervising this man in any way, and evidently, there were no established protocols."
There's more disagreement over why hospitals have been added to the law.
House Courts and Criminal Code Chairman Matt Pierce (D-Bloomington) says the goal was to ensure that tests performed by a lab tech at a hospital were considered admissible. But other legal experts say a properly trained lab tech should be able to perform a test at any location under proper supervision.
And Karlson says the section of the law which excludes lab techs -- allowing only doctors, nurses, paramedics or E-M-T's to administer the test -- appears to apply only to a standing contract to perform those tests, such as the prosecutor in Pierce's Monroe County has.
Bisard still faces a reckless homicide charge and two counts of recklessness in the crash which killed motorcyclist Eric Wells.