A second vial of IMPD Officer David Bisard's blood in a refrigerated evidence property room has become a topic of discussion in open court before Marion County Judge Grant Hawkins.
Fox59 News has learned Judge Hawkins discussed the possibility prosecutors or defense attorneys may want to get the second vial tested beyond the Indianapolis Metropolitan Police department's crime lab. The crime lab tested Bisard's vial #1 that came back with a .19 BAC. Some attorneys say it's a definite possibility the prosecution may use as a tactic to bolster their case.
"It's a very big deal to the extent the defense has challenged how the first vial of blood was tested. Obviously, if the prosecution has an opportunity to correct any errors that were made and they get the same results that's a huge break for the prosecution," said Rick Kammen, a well-regarded defense attorney.
Kammen said there are reasons to test the second vial which is pictured in Indianapolis Metropolitan Police Department's 44-page "Bisard Crash Report" with Bisard's name written on it with a black marker.
"You would expect them, under the supervision of the court to test the second vial. Certainly they could test it for drugs, alcohol, all the typical tests you'd expect to see in a case like this," Kammen added. "There may be reasons why they would expand the test to DNA."
Kammen said DNA would confirm it is David Bisard's blood beyond a doubt. Toxicology experts told Fox59 News the second vial would be expected to come back with a similar blood alcohol result. There could be a slight decrease in the BAC due to some chemical breakdown but experts say if kept in proper refrigerated storage, as is expected with Bisard's blood in the IMPD property room, it would only have an incremental drop if any at all.
Prosecutor Terry Curry would not comment on whether he plans to file a motion to get the second vial tested but the office released this statement to Fox59 News:
"The Marion County Prosecutor's Office is satisfied that the blood evidence collected in the Bisard case was secured properly, tested properly, and is admissible. A second vial of blood was taken as a matter of accepted protocol. How it is used in the trial is a matter of strategy for both the prosecution and defense."
Bisard's defense attorney John Kautzman has argued the two vials blood were drawn at uncertified facility for blood testing in a criminal case. He has said because of that, the blood should be thrown out and ruled inadmissible. Kautzman had no comment to Fox59 News on the possibility of testing the second vial but Kammen did.
"The questions about the way the blood was taken will exist no matter what. To the extent there are questions about the validity of the testing and the extent those questions effect the case, then a second test helps confirm the first test no question about it," said Kammen.
Judge Hawkins has yet to receive briefs from either side arguing the admissibility of the blood draw. When those briefs are reviewed the judge will render an opinion if the blood is admissible despite the state statute. No matter where the blood is tested, experts say the procedure from lab to lab is very similar and would require getting tested with a machine called a gas chromatograph.
"A gas chromatograph is a large oven with a column going through it and the alcohol or the blood sample is directly injected into the injector end of the column," said Jeff Retz with Witham Toxicology in Lebanon. Witham did not do the testing in the Bisard case but is routinely hired in criminal cases.
Retz explained how the test works to get a blood alcohol result.
"The length of time it takes for ethanol to travel through the column is called the retention time and that's how it's identified as ethyl alcohol," said Retz.
Retz has spent decades in labs doing blood tests for criminal cases. He has seen incidences where the defense and some prosecutors have gone forward and test the second vial to help their case. Retz though felt the re-testing of the blood in the second vial is a risky decision for the prosecution in the Bisard case because it could come back different than the first vial. Defense attorney Rick Kammen is of the opinion it may be beneficial to get the second vial tested but agrees it can be a risk that could benefit Bisard's defense.
"If a second test is taken there is always hope that it doesn't confirm the first test, if that happens obviously that would be a tremendous blow to the state's case," he said.
Some sources close to the case say the first issue is will Judge Hawkins allow the blood in. A source close to the case predicts it won't go to trial until 2012 due to numerous potential motions and possible appeals to the judge's rulings particularly if he ultimately decides to let the blood alcohol test in.