David Bisard v. State of Indiana, 2015 Ind. App. LEXIS 129

On August 6, 2010, Indianapolis police officer David Bisard, driving a marked vehicle with lights and siren activated, struck two motorcycles while traveling ~74–75 mph; one rider (Eric Wells) died and two others were seriously injured.
First responders at the scene observed no outward signs of intoxication; a post-accident blood draw at a medical facility showed Bisard’s BAC was 0.19.
The State charged Bisard with multiple offenses arising from the crash, including OWI with a BAC ≥ .15 causing death (Class B) and OWI-related serious bodily injury counts (Class D); after trial Bisard was convicted on three counts and sentenced to an aggregate executed term of 16 years (3 years suspended).
Pretrial and trial issues included admissibility of blood evidence (previous interlocutory appeal resolved in State’s favor), a proposed defense to rebut expert testimony about “tolerant drinkers,” and juror misconduct when Juror 8-2 conducted internet research about blood-test reliability.
The trial court warned Bisard that calling witnesses to deny heavy drinking could “open the door” to evidence of a later 2013 OWI arrest but Bisard did not call those witnesses and the State did not introduce the 2013 incident at trial.
The court removed Juror 8-2 after he admitted researching blood-test reliability and questioning the other jurors individually; the court declined to grant a mistrial and permitted the jury to deliberate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to present evidence about drinking habits vs. opening the door to prior OWI	State argued the court properly warned that testimony about non-heavy drinking could permit rebuttal evidence (2013 OWI).	Bisard argued the warning denied his due-process right to present a defense (Hobson’s choice).	Court: No denial of due process; warning was a liminal ruling (motion in limine–type) and Bisard declined to call the witnesses, so no ruling was made or preserved.
Mistrial based on juror misconduct (internet research)	State: Court’s prompt inquiry, removal of juror, individual questioning and admonitions cured any taint; harmless.	Bisard: Juror’s outside research about blood-test reliability prejudiced jury and required mistrial.	Court: No abuse of discretion denying mistrial; Ramirez two-step applied, prejudice presumptively shifted to State but court’s investigation and jurors’ assurances supported proceeding.
Use of abuse of police power / breach of public trust as aggravator	State: Officer status and on-duty intoxicated conduct that caused death/injury justified finding abuse of public trust as aggravator.	Bisard: Factor unsupported or improper under the circumstances.	Court: Aggravator supported by record (on-duty officer who violated duty and departmental rules); sentencing not an abuse of discretion.

Chambers v. Mississippi, 410 U.S. 284 (1973) (defendant’s right to present witnesses is fundamental but not absolute)
Ramirez v. State, 7 N.E.3d 933 (Ind. 2014) (procedures and burden-shifting for juror misconduct and presumed prejudice)
Burks v. State, 838 N.E.2d 510 (Ind. Ct. App. 2005) (mistrial is extreme remedy; appellate review for abuse of discretion)
Roach v. State, 695 N.E.2d 934 (Ind. 1998) (right to present a defense and limits on that right)
Powell v. State, 769 N.E.2d 1128 (Ind. 2002) (finding abuse of police power/breach of public trust can be a sentencing consideration)