Commonwealth v. Bohigian ( 2020 )

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SJC-12858
COMMONWEALTH vs. CHARLES F. BOHIGIAN.
Worcester. February 10, 2020. - November 13, 2020.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.1
Motor Vehicle, Operating under the influence. Constitutional
Law, Blood test. Due Process of Law, Blood alcohol test.
Evidence, Blood alcohol test, Voluntariness of statement.
Consent.
Complaint received and sworn to in the Westborough Division
of the District Court Department on March 24, 2014.
Following transfer to the Worcester Division of the
District Court Department, the case was tried before Andrew M.
D'Angelo, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Erin R. Opperman for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.
Jin-Ho King, for Committee for Public Counsel Services &
another, amici curiae, submitted a brief.
1 Chief Justice Gants participated in the deliberation on
this case prior to his death.
2
BUDD, J. The defendant, Charles Bohigian, was convicted of
operating a motor vehicle while under the influence of alcohol
(OUI), pursuant to G. L. c. 90, § 24 (1) (a) (1); operating a
motor vehicle negligently so as to endanger, pursuant to G. L.
c. 90, § 24 (2) (a); and OUI causing serious bodily injury,
pursuant to G. L. c. 90, § 24L (2), in connection with an
automobile accident.2 The defendant also was convicted of
misleading an investigator pursuant to G. L. c. 268, § 13B, for
statements he made at the scene. He appealed from his
convictions, and we subsequently granted his application for
direct appellate review. He argues that the evidence of his
blood alcohol level was admitted improperly, as were the
statements that formed the basis of the charge of misleading an
investigator.
We agree and conclude that the errors require that the
defendant's convictions be vacated and the matter remanded to
the District Court for a retrial.3
Background. We summarize the relevant facts from the
record. At around midnight on March 23, 2014, Katrina McCarty
2 Count one, operating a motor vehicle while under the
influence of alcohol (OUI), merged with count three, OUI causing
serious bodily injury.
3 We acknowledge the amicus brief submitted jointly by the
Committee for Public Counsel Services and the Massachusetts
Association of Criminal Defense Lawyers.
3
lost control of her sport utility vehicle (SUV) as she traveled
on a highway on-ramp, crashing into the guardrail of the ramp
such that her SUV came to rest perpendicular to the roadway,
blocking approximately two-thirds of it. Soon thereafter, the
defendant crashed into the stationary SUV, rotating it and
causing it to hit McCarty, who had been standing on the side of
the road next to her vehicle. McCarty sustained serious
injuries after being thrown into the path of the defendant's
vehicle, and then being dragged underneath the vehicle for over
200 feet as the defendant continued driving.
When State police troopers arrived at the scene, they noted
that the defendant had an injury to his forehead and was
unsteady on his feet. In addition, his eyes appeared glassy and
bloodshot, his speech was slurred, and he had a heavy smell of
alcohol on his breath. The defendant told the troopers that
"another vehicle had come out of nowhere and run that lady
over," and that the operator of that other vehicle told him to
"keep his mouth shut."
At the hospital, the treating nurse observed that the
defendant exhibited symptoms of a concussion. After the
defendant refused to consent to a blood draw, one of the
troopers who had responded to the scene applied for, and
procured, a search warrant to obtain a blood sample from the
4
defendant as part of the trooper's investigation into whether
the defendant was driving while under the influence of alcohol.
Upon being presented with the signed warrant, the defendant
repeated his objection to the blood draw. Subsequently, the
defendant's arms and legs were restrained by troopers as the
nurse drew two vials of his blood at the direction of one of the
troopers. The blood was analyzed, and it was determined that
the alcohol content was .135 percent at the time the blood was
drawn. A chemist determined that the defendant's blood alcohol
level would have been between .16 and .26 at the time of the
accident.4
Discussion. 1. Blood alcohol content evidence. a.
Statutory framework. It is constitutional to draw a person's
blood without consent as long as the law enforcement officer has
procured a warrant or exigent circumstances make a warrant
impracticable. See Missouri v. McNeely, 569 U.S. 141, 148
(2013), citing Schmerber v. California, 384 U.S. 757, 770
(1966); Commonwealth v. Angivoni, 383 Mass. 30, 32 (1981).
However, the Legislature has created a statutory scheme
specifically to address the testing of blood alcohol content
4 A blood alcohol content (BAC) of .08 percent or above is
over the legal limit. See G. L. c. 90, § 24 (1) (a) (1); G. L.
c. 90, § 24L (1).
5
(BAC) in connection with prosecutions for OUI, including the
drawing of blood.
General Laws c. 90, § 24 (1) (e), works in tandem with
G. L. c. 90, § 24 (1) (f) (1). Section 24 (1) (e) requires that
where a test of a defendant's breath or blood to determine
alcohol content is made by or at the direction of a police
officer, it must be done with the defendant's consent in order
for the results to be admissible in a prosecution for OUI under
G. L. c. 90, § 24 (1) (a).5 Section 24 (1) (f) (1), known as the
"implied consent" statute, provides that, by driving on public
roads, all drivers give consent to submit to a BAC test if
arrested for OUI. However, the paragraph goes on to state th at
"[i]f the person arrested refuses to submit to such test or
analysis . . . no such test or analysis shall be made ."6 G. L.
5 General Laws c. 90, § 24 (1) (e), states in pertinent
part:
"In any prosecution for a violation of paragraph ( a),
evidence of the percentage, by weight, of alcohol in the
defendant's blood at the time of the alleged offense . . .
shall be admissible and deemed relevant to the
determination of the question of whether such defendant was
at such time under the influence of intoxicating liquor;
provided, however, that if such test or analysis was made
by or at the direction of a police officer, it was made
with the consent of the defendant . . . ."
6 General Laws c. 90, § 24 (1) (f) (1), states in pertinent
part:
6
c. 90, § 24 (1) (f) (1). That is, the implied consent that
attaches when a driver uses public roadways may be withdrawn,
and without actual consent no test is to be done. If the driver
refuses the test, he or she is subject to losing his or her
license for at least 180 days.7 Id. Together the two
subsections provide that, if an arrestee consents to a BAC test,
the results are presumptively admissible at trial for a charge
"Whoever operates a motor vehicle upon any way or in any
place to which the public has right to access, or upon any
way or in any place to which the public has access as
invitees or licensees, shall be deemed to have consented to
submit to a chemical test or analysis of his breath or
blood in the event that he is arrested for operating a
motor vehicle while under the influence of intoxicating
liquor; provided, however, that no such person shall be
deemed to have consented to a blood test unless such person
has been brought for treatment to a medical facility
licensed under the provisions of [G. L. c. 111, § 51]; and
provided, further, that no person who is afflicted with
hemophilia, diabetes or any other condition requiring the
use of anticoagulants shall be deemed to have consented to
a withdrawal of blood. Such test shall be administered at
the direction of a police officer, as defined in [G. L.
c. 90C, § 1], having reasonable grounds to believe that the
person arrested has been operating a motor vehicle upon
such way or place while under the influence of intoxicating
liquor. If the person arrested refuses to submit to such
test or analysis, after having been informed that his
license or permit to operate motor vehicles or right to
operate motor vehicles in the commonwealth shall be
suspended for a period of at least 180 days and up to a
lifetime loss, for such refusal, no such test or analysis
shall be made and he shall have his license or right to
operate suspended in accordance with this paragraph for a
period of 180 days . . . ."
7 Longer periods of revocation may apply depending upon the
arrestee's driving record. See G. L. c. 90, § 24 (1) (f) (1).
7
of OUI under § 24 (1) (a). If the arrestee does not consent,
however, no test is performed, and the arrestee's license is
suspended for at least six months.
The defendant claims that because he was not afforded these
statutory protections, the blood draw was unlawful and the BAC
test results were inadmissible at trial. The Commonwealth
argues that the blood test results properly were admitted
because obtaining a warrant for the blood is an alternative to
obtaining consent and, thus, neither § 24 (1) (e) nor
§ 24 (1) (f) (1) applies. We agree with the defendant.
The Commonwealth's suggested interpretation, endorsed by
the dissent, ignores the plain statutory language that creates a
blanket prohibition against blood draws without consent in the
context of OUI prosecutions. See Commonwealth v. Dalton, 467
Mass. 555, 557 (2014), quoting Commonwealth v. Boe, 456 Mass.
337, 347 (2010) ("[t]he meaning of a statute must, in the first
instance, be sought in language in which the act is framed, and
if that is plain, . . . the sole function of the courts is to
enforce it according to its terms"). Both subsections require
consent for OUI blood draws, and neither makes an exception for,
or even mentions, warrants.
8
Pointing to two particular phrases in the provisions, the
dissent asserts that we have misread the statutory language. 8
First, § 24 (1) (e) allows for the admission of BAC evidence in
an OUI prosecution unless the test was performed without the
consent of the defendant "at the direction of a police officer."
The dissent concludes, as did the motion judge, that the BAC
evidence was admissible because the defendant's blood was drawn
pursuant to a warrant issued by a judge rather than "at the
direction of a police officer." Contrary to the view of the
dissent, we believe that the limited protection provided by
§ 24 (1) (e) was available to the defendant; however, in his
case, it made no difference. Section 24 (1) (e) applies only to
prosecutions under § 24 (1) (a), which prohibits simple OUI.
Had the defendant only been charged under § 24 (1) (a), he would
have been able to argue that the BAC evidence was inadmissible
because his blood was taken without his consent "at the
8 We note that although the dissent contends that our
interpretation of § 24 (1) (e) and (1) (f) (1) is inconsistent
with the plain language of the provisions, it is the dissent
that seeks to read into the consent requirements of those
provisions an exception for search warrants. See Commonwealth
v. Palmer, 464 Mass. 773, 778 (2013), quoting Commonwealth v.
Callahan, 440 Mass. 436, 443 (2003) ("In interpreting a statute,
'[w]e will not add words to a statute that the Legislature did
not put there, either by inadvertent omission or by design'").
9
direction of a police officer."9 G. L. c. 90, § 24 (1) (e).
However, as the defendant additionally was charged with a
violation of § 24L (OUI causing serious bodily injury),
§ 24 (1) (e) had no bearing at all on the admissibility of the
BAC evidence with regard to this more serious charge. 10
It is instead § 24 (1) (f) (1) that is operative here.11
Quite apart from § 24 (1) (e), § 24 (1) (f) (1) flatly and
9 The Appeals Court long ago interpreted § 24 (1) (e) to
apply not only to police officers but to State actors generally:
"We read the statutory exclusion of evidence in G. L. c. 90,
§ 24 (1) (e), to be limited to a defendant's refusal to take
tests to determine the alcohol level of his blood when requested
by the police or other State actors -- in essence incorporating
the State action requirement and protections of art. 12 of the
Massachusetts Declaration of Rights" (emphasis added).
Commonwealth v. Arruda, 73 Mass. App. Ct. 901, 903 (2008). This
makes sense, as the statutory and regulatory scheme
distinguishes between blood tests performed for medical purposes
and those conducted for investigatory purposes. Id. Here,
there is no question that a judge or clerk-magistrate is a State
actor and that the warrant was issued for investigatory
purposes.
Even if we were to adopt the dissent's interpretation of
the statutory language, in applying it to the uncontested facts
of this case, the blood draw indeed was performed "at the
direction of a police officer." The investigating officer made
the decision to request, obtain, and execute the warrant. It
seems somewhat disingenuous to maintain that the blood draw was
performed "at the direction of" the judge who signed the warrant
rather than the police officer who sought the warrant and
instructed that hospital personnel perform the draw.
10The same can be said for any defendant facing an OUI -
related prosecution that is more serious than simple OUI.
11Like § 24 (1) (e), § 24 (1) (f) (1) also contains the
phrase "at the direction of a police officer"; however, the
10
unambiguously prohibits blood draws without consent for the
purposes of analyzing BAC, regardless of who directs it. 12 See
G. L. c. 90, § 24 (1) (f) (1).
The Appeals Court has analyzed the consent requirements of
these subsections on multiple occasions and, as recently as last
year, reiterated that "in this Commonwealth, a requirement of
consent is imposed by statute even when, because there is
probable cause and exigent circumstances, one is not imposed by
the Federal Constitution." Commonwealth v. Dennis, 96 Mass.
App. Ct. 528, 532 (2019). Decades prior to Dennis's
phrase is used in a different context. In § 24 (1) (e), the
phrase describes the conditions under which BAC evidence is
admissible for OUI prosecutions under § 24 (1) (a). In
contrast, in § 24 (1) (f) (1), the phrase explains how the blood
or breath test is to be performed, i.e., "[s]uch test shall be
administered at the direction of a police officer, as defined in
[G. L. c. 90C, § 1], having reasonable grounds to believe that
the person arrested has been operating a motor vehicle upo n such
way or place while under the influence of intoxicating liquor ."
G. L. c. 90, § 24 (1) (f) (1). In this case, because the
defendant did not consent, no test should have been performed
based on the plain language of the subsection. See id. ("If the
person arrested refuses to submit to such test or analysis . . .
no such test or analysis shall be made . . .").
12The dissent contends that the reference to "such test"
within the phrase "no such test or analysis shall be made"
narrowly refers to those tests made at the direction of an
officer. We disagree. Instead, because the phrase "such test"
is used earlier in the provision to refer to the type of test as
initially described in the subsection, i.e., a "chemical test or
analysis of his breath or blood," we interpret the second
reference to "such test" similarly to refer back to the first
mention of the test. See G. L. c. 90, § 24 (1) (f) (1).
11
publication, the Appeals Court concluded, correctly in our view,
that although an individual in the defendant's position has no
constitutional right to refuse a BAC or breathalyzer test,
"[t]he right of refusal he does have stems from
[§ 24 (1) (f) (1)], which requires that a test not be conducted
without his consent" (emphasis added).13 Commonwealth v.
Davidson, 27 Mass. App. Ct. 846, 848 (1989). Thus, the Appeals
Court has made clear that, although it may be constitutional to
obtain a blood sample from an unwilling participant with a
warrant and probable cause, here in the Commonwealth an
involuntary blood draw is statutorily prohibited if it is sought
for the purposes of an OUI investigation. This court similarly
has adopted this view. See Opinion of the Justices, 412 Mass.
1201, 1208 n.6 (1992), citing Davidson, supra at 849 (actual
13Notably, § 24 (1) (f) (1), requiring actual consent for
blood draws for the purposes of determining BAC, was passed one
year after the United States Supreme Court decided Schmerber v.
California, 384 U.S. 757, 770-771 (1966), which established that
blood draws performed without consent are constitutionally
permissible with either a search warrant or an exigency
exception. As of 2013, Massachusetts was one of eighteen States
that require consent for OUI-related blood draws. See Missouri
v. McNeely, 569 U.S. 141, 161-162 & nn.9 & 10 (2013) (collecting
statutes). In McNeely, the Supreme Court noted that "widespread
state restrictions on nonconsensual blood testing provide
further support for [the Court's] recognition that compelled
blood draws implicate a significant privacy interest." Id. at
162-163.
12
consent requirement in § 24 [1] [e] and [1] [f] [1] "reflects a
legislative intent to avoid forced testing"). 14
Following the Appeals Court's holding in Davidson, the
Legislature amended § 24 (1) (e) and (1) (f) (1) on seven
separate occasions, in 1994, 1995, 1996, 2002, 2003, 2005, and
2012. Each time, the language requiring consent -- i.e.,
"provided . . . that if such test was made by or at the
direction of a police officer, it was made with the consent of
the defendant" in § 24 (1) (e), and "[i]f the person arrested
refuses to submit to such test or analysis . . . no such test or
analysis shall be made" in § 24 (1) (f) (1) -- remained
unchanged. This is a strong indication that the Legislature
approved of the court's statutory construction of these
provisions.15 See Commonwealth v. Colturi, 448 Mass. 809, 812
14 The dissent acknowledges the Appeals Court holdings of
both Dennis and Davidson, referenced supra, but then states:
"Neither Dennis nor any other appellate precedent expressly
holds that the implied consent statute prohibits a neutral and
detached magistrate from issuing a search warrant to obtain
evidence of a defendant's blood alcohol test." Post at note 5.
This statement is nearly impossible to square with the
conclusion reached by the Appeals Court, which we endorsed in
1992. See Opinion of the Justices, 412 Mass. 1201, 1208 n.6
(1992).
15We do not share the dissent's view that the Legislature's
decision to amend the subsections without altering the language
at issue after Davidson was decided is "of no interpretive
significance." Post at .
13
(2007) (because we presume Legislature is aware of our prior
decisions, "reenact[ment of] statutory language without material
change" implies adoption of prior construction).
It is well within the Legislature's authority to provide
additional privacy protections over and above those granted by
the Federal Constitution and the Massachusetts Declaration of
Rights.16 See Virginia v. Moore, 553 U.S. 164, 171 (2008)
("States [may] choos[e] to protect privacy beyond the level that
the Fourth Amendment [to the United States Constitution]
requires"); Diatchenko v. District Attorney for the Suffolk
Dist., 466 Mass. 655, 668 (2013), S.C., 471 Mass. 12 (2015).
There are valid reasons for doing so, including avoiding the
confrontation that occurred during the blood draw conducted in
this case. See Birchfield v. North Dakota, 136 S. Ct. 2160,
2167 (2016), quoting South Dakota v. Neville, 459 U.S. 553, 559
(1983) ("Although it is possible for a subject to be forcibly
immobilized so that a sample may be drawn, many States prohibit
drawing blood from a driver who resists since this practice
helps 'to avoid violent confrontations'"). See also Rochin v.
16We are mindful of the concern expressed by the dissent
that our interpretation of these subsections may frustrate the
over-all purpose of the statute to keep the roadways safe.
However, our conclusion is based on the plain language of the
statute, and as discussed infra, there are valid reasons for
seeking to strike a balance between public safety and the right
of a defendant not to be subjected to invasive procedures
without his or her consent.
14
California, 342 U.S. 165, 166, 172 (1952) (due process violation
where officers forced tube containing solution into defendant's
stomach against his will, causing him to vomit; "the struggle to
open his mouth and remove what was there, the forcible
extraction of his stomach's contents -- this course of
proceeding by agents of government to obtain evidence is bound
to offend even hardened sensibilities").
Requiring actual consent for blood draws is also a safety
measure. According to the National Center for Biotechnology
Information, blood draws involve a variety of risks to the
patient, including "pain or bruising at the site of puncture,
. . . fainting, nerve damage and haematoma." U.V. Reid, World
Health Organization, WHO Best Practices for Injections and
Related Procedures Toolkit § 3.1 (Mar. 2010), https://www.ncbi
.nlm.nih.gov/books/NBK138496 [https://perma.cc/CR5N-YQWM].
Risks to health care workers and those, like the police officers
here who must restrain a patient during the procedure, include
exposure to bloodborne pathogens, such as hepatitis B virus,
hepatitis C virus, human immunodeficiency virus, syphilis, and
malaria. Id. Health care workers and others participating in
the procedure also must worry about "sharps injuries" caused
during the use and disposal of the needle. Id. These risks are
only amplified where the patient does not consent to the blood
draw. Notably, § 24 (1) (f) (1) specifically states that "no
15
person who is afflicted with hemophilia, diabetes or any other
condition requiring the use of anticoagulants shall be deemed to
have consented to a withdrawal of blood," no doubt in an effort
to ensure that the health of such persons in not endangered by a
blood draw.
Finally, Massachusetts is not alone in having crafted such
a statutory scheme. In McNeely, the Supreme Court noted that "a
majority of States either place significant restrictions on when
police officers may obtain a blood sample despite a suspect's
refusal . . . or prohibit nonconsensual blood tests altogether."
McNeely, 569 U.S. at 161 & n.9. Courts in States with statutes
nearly identical to ours similarly have interpreted them to bar
blood draws absent consent, regardless of whether police have
obtained a warrant.
For example, the Rhode Island Supreme Court interpreted the
following language in the State's implied consent statute:
"[i]f a person having been placed under arrest refuses upon the
request of a law enforcement officer to submit to the tests,
. . . none shall be given" (emphasis in original). State v.
DiStefano, 764 A.2d 1156, 1161 (R.I. 2000), quoting R.I. Gen.
Laws § 31–27–2.1(b). The court "conclude[d] that the language
'none shall be given' is plain and unambiguous . . . , and that,
upon such a refusal, a test shall not be given, with or without
a warrant." DiStefano, supra at 1163.
16
The Alaska Supreme Court addressed this issue in Pena v.
State, 684 P.2d 864, 866 (Alaska 1984). The Alaska statute at
the time provided: "If a person under arrest refuses the
request of a law enforcement officer to submit to a chemical
test of his breath . . . a chemical test shall not be given."
Id., quoting Alaska Stat. § 28.35.032. The court stated: "The
statute clearly provides that after a driver refuses to submit
to a chemical sobriety test the driver shall be penalized by
[license suspension] but that no test shall be given." Pena,
supra at 867. Therefore, the court held that the statute
"preclude[s] chemical sobriety tests performed pursuant to
search warrants." Id.
And the Georgia Supreme Court interpreted a statute that
provided that "[i]f a person under arrest . . . refuses, upon
the request of a law enforcement officer, to submit to a
chemical test . . . , no test shall be given" (emphasis in
original). State v. Collier, 279 Ga. 316, 317 (2005), quoting
Ga. Code Ann. § 40-5-67.1(d). The court held that the statute
"clearly prohibits the giving of any chemical test once the
suspect refuses to submit to the requested one. It makes no
provision for the police to then attempt to obtain a search
warrant." Collier, supra at 318.
Thus, just as in DiStefano, Pena, and Collier, the plain
language of our statutory scheme makes clear that testing shall
17
not be done absent consent, and that any nonconsensual testing
done at the direction of the police is inadmissible. 17
b. Application. Here, it is clear that the blood draw was
performed without the defendant's actual consent (and, in fact,
against his will). The defendant repeatedly objected to the
blood draw, and in the end, several officers pinned him down and
handcuffed him, while a nurse extracted his blood. The blood
draw thus was impermissible under § 24 (1) (f) (1), and
consequently, the BAC test results were admitted improperly at
trial.18 See Commonwealth v. Tyree, 455 Mass. 676, 700 (2010).
17We note that the Legislatures in Rhode Island and Georgia
subsequently amended their statutes to permit nonconsensual
blood draws pursuant to a search warrant. See R.I. Gen. Laws
§ 31–27–2.9(a), inserted by R.I. St. 2009, c. 09-210, § 2;
McAllister v. State, 325 Ga. App. 583, 585 (2014), citing Ga.
Code Ann. § 40-5-67.1(d.1). Alaska enacted a new statute
allowing for chemical testing absent consent if a defendant were
arrested for OUI after an accident resulting in death or
physical injury to another. See Pena v. State, 684 P.2d 864,
867 (Alaska 1984), citing Alaska Stat. § 28.35.035.
The dissent argues that the statutory amendments that were
enacted following these State courts' interpretations of their
respective implied consent statutes are proof that those courts
incorrectly interpreted the statutes in the first place. We
take the opposite view. Those courts based the interpretation
of their respective statutes on the plain statutory language.
The State Legislatures that subsequently amended the statutes
did so because they were not satisfied with the consequences
resulting from the enforcement of the statutes they enacted.
18As discussed supra, § 24 (1) (e) applies only to
prosecutions under § 24 (1) (a), i.e., OUI. Because the
defendant additionally was charged under § 24L (OUI causing
serious bodily injury), the defendant did not benefit from the
limited protection of § 24 (1) (e).
18
As the defendant raised this issue by way of a motion in
limine, we review for prejudicial error. Commonwealth v. Grady,
474 Mass. 715, 718-719 (2016). That is, "we must now determine
whether the erroneous admission of that evidence was 'harmless
beyond a reasonable doubt.'" Tyree, 455 Mass. at 701-702,
quoting Chapman v. California, 386 U.S. 18, 24 (1967). The
Commonwealth highlighted the blood draw and results during the
trial and, in closing arguments, relied exclusively on the blood
draw to prove that the defendant was under the influence . The
BAC results introduced by the Commonwealth provided the
strongest proof that the defendant was intoxicated at the time
of the accident. Proof of intoxication was central to proving
the defendant's guilt of both OUI causing serious bodily injury
(§ 24L) and negligent operation (§ 24 [2] [a]). See
Commonwealth v. Zagwyn, 482 Mass. 1020, 1022 (2019) ("evidence
of an operator's intoxication is relevant to a charge of
negligent operation"). We therefore cannot say that the tainted
evidence was harmless beyond a reasonable doubt.19
19In the alternative, the defendant argues that prior to
his blood being drawn without consent, he was entitled to a
hearing before a judge pursuant to Matter of Lavigne, 418 Mass.
831, 835-836 (1994). In that case, the Commonwealth sought a
sample of the defendant's blood to compare it to blood found at
a crime scene. Id. at 833. Because consent is required for
blood draws in connection with OUI investigations by statute, a
Lavigne hearing would not be necessary in such cases. Instead,
as discussed supra, no blood draw shall take place.
19
2. Voluntariness of statements. The defendant was
convicted of misleading an investigator pursuant to G. L.
c. 268, § 13B, based on the statements he made to the responding
officers at the accident scene suggesting that the driver who
caused the accident had fled the scene. He argues that the
conviction should be vacated because, given the head injury he
sustained in the accident, an inquiry into the voluntariness of
his statements should have been made even without a request from
trial counsel. We review the claim for a substantial risk of a
miscarriage of justice. Commonwealth v. Randolph, 438 Mass.
290, 294-295 (2002).
In order to use a defendant's statements against him or her
at trial, they must have been made voluntarily. See
Commonwealth v. Brown, 449 Mass. 747, 765 (2007), citing
Commonwealth v. Sheriff, 425 Mass. 186, 192 (1997). "If the
defendant does not raise the issue of voluntariness, the judge
has a sua sponte obligation to conduct a voir dire only if the
voluntariness of the statements is a live issue such that there
is evidence of a substantial claim of involuntariness"
(quotation and citation omitted). Brown, supra. See
Commonwealth v. Gallett, 481 Mass. 662, 686 (2019), quoting
Commonwealth v. Kirwan, 448 Mass. 304, 318 (2007) (for question
of voluntariness to be considered live issue, "substantial
evidence of involuntariness [must be] produced"). Further, a
20
judge must provide a humane practice instruction to the jury,
i.e., that they must find that the defendant's statements wer e
voluntary beyond a reasonable doubt before considering them.
Commonwealth v. Rosario, 477 Mass. 69, 72 n.7 (2017).
Given the relationship between the defendant's head
injuries and his mental condition, the voluntariness of his
statements was a live issue at trial. Trial counsel discussed
the head injuries that the defendant sustained in both the
opening statement and closing argument, noting in the closing
that the defendant "wasn't fine" when he responded to officers'
questions at the accident scene. Trial counsel questioned the
responding officers as well as the treating nurse about the
defendant's head wounds. The nurse testified that the
defendant, who had glass imbedded in his head from the accident,
showed signs of having sustained a concussive head trauma,
including repeating himself "quite often" and being lethargic.
The judge erred by failing to make an independent
determination regarding voluntariness and by failing to give a
humane practice instruction to the jury. Because the statements
the defendant made were offered by the Commonwealth and formed
the basis for the charge of misleading an investigator, th e
error created a substantial risk of a miscarriage of justice.
We therefore vacate the defendant's conviction under G. L.
c. 268, § 13B.
21
Conclusion. In conclusion, we vacate the defendant's
convictions of OUI causing serious bodily injury and misleading
an investigator and remand the case to the trial court for
proceedings consistent with this ruling.
So ordered.
LOWY, J. (dissenting, with whom Kafker, J., joins). The
court observes that "[t]he [blood test] results introduced by
the Commonwealth provided the strongest proof that the defendant
was intoxicated at the time of the accident." Ante at . I
agree. Indeed, this was the Legislature's precise intent when
it reframed the preexisting statutory scheme for controlling
substance-impaired driving in objective terms of blood alcohol
content. See St. 1961, c. 340, and discussion infra. Chemical
analysis of blood alcohol content, although hardly foolproof, is
not subject to testimonial infirmities such as failure of
memory, misperception, ambiguity in communicating observations
to the trier of fact, and lack of sincerity. By placing n ew
emphasis on collecting blood alcohol content evidence from
suspected offenders, the Legislature both reduced exclusive
reliance on witness perception and testimony to determine the
extent of a defendant's intoxication and afforded protection to
suspects whose symptoms of impairment were not a result of
alcohol consumption. Yet the court holds that the Legislature
intended to exclude blood alcohol content evidence from a
prosecution for operating a motor vehicle while under the
influence of alcohol (OUI) if police obtained it pursuant to a
search warrant absent consent, because the provisions of G. L.
c. 90, § 24 (1) (e) and (f) (1) (subsections [e] and [f] [1]),
require the defendant's consent to perform or admit the results
2
of any blood alcohol test made "at the direction of a police
officer." Ante at .
This interpretation is inconsistent with the plain language
and purpose of subsections (e) and (f) (1). The ordinary
meaning of the words composing these provisions confines their
scope to blood alcohol tests performed "at the direction of a
police officer." See ante at note 5 (text of subsection [e]),
and note 6 (text of subsection [f] [1]). Properly construed,
those provisions do not require consent for blood drawn pursuant
to a search warrant issued by a neutral and detached magistrate,
upon a finding of probable cause. The magistrate's decision to
issue a warrant bears no relation to a suspected offender's
consent, nor does it implicate the regulatory apparatus of
implied consent or its effects on evidentiary admissibility.
Moreover, the court's holding frustrates the overriding
purpose of G. L. c. 90, § 24, to enhance the safety of the
Commonwealth's roadways by deterring substance-impaired driving.
See Commonwealth v. Colturi, 448 Mass. 809, 812-813 (2007)
(public safety purpose of statutory scheme well established).
Collection and use of blood alcohol content evidence is the
statute's principal engine of enforcement: The Legislature
crafted subsections (e) and (f) (1) to fuel that engine by
imposing an efficient, consent-based procedure for warrantless,
police-directed testing. The Legislature's consistent efforts
3
to encourage and to promote the collection of blood alcohol
content evidence within constitutional bounds belies any
suggestion of legislative intent to enable a defendant to
prohibit an alternative, constitutionally compliant procedure by
withholding his or her consent.
This is especially true where prohibiting that alternative
procedure would allow repeat offenders to shield themselves from
conviction at a disturbing rate by declining to submit to
forensic testing.1 See, e.g., Senate Committee on Post Audit and
Oversight, Current Drunk Driving Deterrence, foreword (Oct.
1987) (noting distressing fifty percent increase in breath test
refusals over past year, depriving prosecutors of vital
evidence). Repeat offenders, due to their previous arrest, are
typically aware of the inadmissibility of a refusal to take a
breathalyzer test. Thus, repeat offenders may avoid conviction,
in part, because the prosecutor or judge cannot explain to the
jury why there was no forensic evidence of blood alcohol content
presented at trial. The privilege against furnishing evidence
1 In a case where a defendant refuses to submit to a test
establishing blood alcohol content, it is often difficult for
the prosecution to carry its burden of proof on the element of
impairment. Only approximately thirty-one percent of all jury
trials of OUI charges disposed of in the District Court and
Boston Municipal Court Departments of the Trial Court over the
past three calendar years (2017-2019) resulted in conviction.
Harsh statutory penalties for subsequent convictions have little
deterrent effect where the likelihood of conviction is
significantly diminished upon refusing to submit to testing.
4
of one's own guilt under art. 12 of the Massachusetts
Declaration of Rights precludes the admission of evidence that a
defendant refused a test given at the direction of the police.
Opinion of the Justices, 412 Mass. 1201, 1211 (1992). The
confluence of these factors thus impedes the Legislature's
consistent efforts both to promote the use of blood alcohol
content evidence at trial to deter substance-impaired driving in
general, and to ensure effective sanctions for repeat offenses
in particular. Because I discern neither a constitutional nor a
statutory obstacle to admitting evidence of the defendant's
blood alcohol content obtained pursuant to a search warrant
issued upon probable cause, I respectfully dissent.
1. "Plain" meaning of statutory language. "[T]he primary
source of insight into the intent of the Legislature is the
language of the statute." International Fid. Ins. Co. v.
Wilson, 387 Mass. 841, 853 (1983). The plain language of
subsections (e) and (f) (1) neither prohibits a neutral and
detached magistrate from issuing a search warrant to draw and
test a defendant's blood to determine its alcohol content, nor
forbids police from reasonably executing one. See Plymouth
Retirement Bd. v. Contributory Retirement Bd., 483 Mass. 600,
605 (2019) ("Even clear statutory language is not read in
isolation").
5
a. "[A]t the direction of a police officer." The
admissibility, consent, and refusal provisions of subsections
(e) and (f) (1) each regulate only postarrest blood alcohol
content tests made "at the direction of a police officer." In
denying this defendant's motion in limine to exclude the blood
alcohol content evidence, the trial judge explained that a
search pursuant to a "properly executed search warrant i s not a
search that requires the consent of the [defendant] or that is
'made by or at the direction of a police officer.'" I agree.
This is not mere semantics. The language of the search
warrant issued by the magistrate in this case could not more
plainly reflect that it is an order of the court, expressl y
directed to law enforcement:
"I find that there is PROBABLE CAUSE to believe that the
property described below . . . is evidence of a crime or is
evidence of criminal activity. YOU ARE THEREFORE COMMA NDED
within a reasonable time . . . to search for the . . .
blood of [the defendant] . . . which is . . . on the person
or in the possession of [the defendant]."
When a defendant's blood is drawn and tested pursuant to such a
warrant, issued by order of "a neutral and detached magistrate
instead of being judged [appropriate] by the officer engaged in
the often competitive enterprise of ferreting out crime"
(citation omitted), Schmerber v. California, 384 U.S. 757, 770
(1966), the defendant's consent is immaterial, see Commonwealth
6
v. Delaney, 442 Mass. 604, 611 (2004) ("suspect has no lawful
option but to comply with the warrant").
"The Legislature's silence on [a] subject cannot be
ignored," Commonwealth v. Nascimento, 479 Mass. 681, 684-685
(2018), quoting Roberts v. Enterprise Rent-A-Car Co. of Boston,
438 Mass. 187, 193 (2002), and neither subsection ( e) nor
subsection (f) (1) proscribes or, as the court concedes, ante at
, "even mentions" warrants. The law affords suspected offenders
a statutory means to check officers' discretion, dispensing with
any opportunity for unwarranted State infringement of bodily
security, as in Rochin v. California, 342 U.S. 165, 172 (1952).
Absent express prohibition of a magistrate's issuance of a
search warrant for an arrestee's blood alcohol content, I
decline to read one into the statutory silence. In a closely
related context, this court recently acknowledged the
substantial difference between the summary action of an officer
in the field and the officer's action following the deliberate
decision of an impartial court, and then reasoned that this
procedural discrepancy constituted a reasonable basis for the
Legislature to impose distinct statutory consequences flowing
from each. See Nascimento, supra at 684 (declining to expand
application of mandatory imprisonment provision where
Legislature was silent, and differentiating between suspension
for failing breath test effected by officer's summary
7
confiscation under G. L. c. 90, § 24 [f] [2], and suspension
according to judicial determination following arraignment in
open court under G. L. c. 90, § 24N). Here, since a
magistrate's "informed, detached and deliberate [probable cause]
determination[]" to issue a warrant for a blood test, Schmerber,
384 U.S. at 770, and the requirement that police execute it in a
reasonable manner already each protect a defendant's individual
interest against unreasonable government intrusions, including
against intrusions upon bodily security, there was no need for
the Legislature to create additional statutory limits on or
otherwise acknowledge the default availability of traditional
warrant procedure.
The court nonetheless attempts to dismiss the limiting
effect of the phrase "at the direction of a police officer" in
subsection (e) by broadly construing "police officer" to
encompass "any State actor," including a magistrate. 2 Ante at
2 The court states that the dissent is "somewhat
disingenuous to maintain that the blood draw was performed 'at
the direction of' the judge who signed the warrant rather than
the police officer who sought the warrant and instructed that
hospital personnel perform the draw." Ante at note 9. To the
contrary, the critical importance of this distinction is, in
part, what inspired John Adams's authorship of art. 14 of the
Massachusetts Declaration of Rights, and shaped the Fourth
Amendment to the United States Constitution. See gen erally T.K.
Clancy, The Framers' Intent: John Adams, His Era, and the
Fourth Amendment, 86 Ind. L.J. 979 (2011) (discussing Adams's
part in drafting art. 14 and its influence on Fourth Amendment,
with particular attention to over-all goal of establishing
8
note 9, citing the Appeals Court rescript opinion in
Commonwealth v. Arruda, 73 Mass. App. Ct. 901, 903 (2008). That
reasoning only makes sense in the context of the evidentiary
admissibility of a defendant's refusal to submit to a blood
alcohol test under subsections (e) and (f) (1), since art. 12
precludes any State actor from compelling a defendant to furnish
testimonial evidence of his or her own guilt. That
constitutional concern is not implicated here, however, because
the issue is the admissibility of the defendant's blood alcohol
objective criteria to justify governmental intrusion upon
individuals' security). Although colonial Massachusetts lacked
organized police forces, its inhabitants were intimately
familiar with the intrusive customs searches authorized by
Parliament and the Crown. See id. at 989-991. In 1761, James
Otis famously denounced the general warrants, or "Writs of
Assistance," granted in furtherance of customs inspections as
"the worst instrument of arbitrary power . . . that places the
liberty of every man in the hands of every petty officer." J.
Adams, Abstract of the Argument for and against the Writts of
Assistance (circa Apr. 1761), in 2 Legal Papers of John Adams,
at 140, 142 (L.K. Wroth & H.B. Zobel, eds., 1965). The
uncontrolled discretion afforded to customs officials under such
writs was the chief complaint. See Clancy, supra at 991-922.
John Adams and the other founders thus recognized the importance
of enshrining a right to be free from discretionary searches,
and they understood that they could best protect liberty by
establishing objective criteria to govern when a search should
be legally authorized in a specific case, as "determin'd by
adequate and proper judges" as opposed to "petty tyrants"
(citations omitted). Id. at 994. While both a search "at the
direction of the police" and a search authorized by a valid
search warrant constitute State power, the former resembles the
untrammeled discretion granted to searching customs officers,
against which our constitutions protect, and the latter
represents the preferred procedure to ensure that discretionary
police actions do not trample individual security.
9
content, obtained pursuant to a valid search warrant, and not
the defendant's refusal to submit to blood alcohol cont ent
testing. Article 12 and its doctrinal tests are not implicated
where real or physical evidence is concerned. 3 See Commonwealth
v. Brennan, 386 Mass. 772, 783 (1982) (neither breathalyzer test
nor field sobriety tests communicative to extent necessary to
evoke art. 12 privilege).
b. "[No] such test . . . shall be made." The court's
conclusion that subsections (e) and (f) (1) "create[] a blanket
prohibition against blood draws without consent in the context
of OUI prosecutions," ante at , hinges upon two critical
errors. The first is its inaccurate reading of "a test [made or
administered] at the direction of a police officer," as it
appears in subsections (e) and (f) (1), to encompass blood
alcohol evidence collected pursuant to a warrant, discu ssed
above. The second is an overly broad construction of what
3 The court's citation to Commonwealth v. Arruda, 73 Mass.
App. Ct. 901, 903 (2008), is not dispositive, since it involved
admissibility of testimonial refusal evidence, not bodily
fluids. Although, in that context, it made some sense for the
Appeals Court to interpret the subsection (e) provision
excluding evidence that a defendant refused a test administered
"at the direction of a police officer" to encompass a test at
the direction of any State actor, that reading makes no sense
here. The concept of "State action" also applies to determining
violations of the Fourteenth Amendment to the United States
Constitution, but that doctrine is irrelevant here as well,
since no Federal constitutional claims are at issue.
10
constitutes a "test or analysis" in the following provision of
subsection (f) (1):
"If the person arrested refuses to submit to such test or
analysis, after having been informed [that such ref usal
will result in license suspension of at least 180 days], no
such test or analysis shall be made" (emphasis added).
G. L. c. 90, § 24 (1) (f) (1). In this portion of subsection
(f) (1), "such test or analysis" means the breath or blood test
"administered at the direction of a police officer" to which
"[w]hoever operates a motor vehicle upon any [public] way . . .
shall be deemed to have consented to submit . . . in the event
that he is arrested for [OUI]."4 Id. Confined as they are to
tests "at the direction of a police officer," the implied
consent and refusal provisions in subsection (f) (1) simply have
no application to the collection of blood alcohol content
4 The court's reading of "such test" as referring to any
breath or blood test for purposes of determining blood alcohol
content, rather than one specifically administered "at the
direction of a police officer" is unworkable, both grammatically
and substantively. See ante at note 11. A generally accepted
rule of English syntax dictates that a demonstrative adjective
generally refers to the nearest reasonable antecedent. See A.
Scalia & B.A. Garner, Reading Law: The Interpretation of Legal
Texts 144-146 (2012) (discussing "last antecedent" canon of
interpretation). Here, "no such test . . . shall be made"
refers back to "such test" as the arrestee "refuses to submit,"
which in turn refers to the test that "shall" be administered by
a police officer. More fundamentally, the only test
contemplated by subsection (f) (1) is the one that "shall" be
administered at police direction, because the very purpose of
the implied consent law is to encourage cooperation with police
requests to submit to testing. It is the refusal to submit to
that police request that triggers the license suspension and
means no test is administered at police direction.
11
evidence pursuant to a warrant. In other words, the court is
correct when it observes that neither subsection ( e) nor
subsection (f) (1) "even mentions warrants." Ante at . As
such, the statute neither implies a driver's consent to a blood
draw pursuant to a warrant nor affords any attendant possibility
of refusal. Neither is there any express prohibition of a
magistrate issuing a warrant to draw and test blood of a person
under arrest for OUI. Indeed, no express exception is
necessary, since obtaining a warrant is the default p rocedure
for complying with the reasonableness requirement imposed by the
Fourth Amendment to the United States Constitution and art. 14
of the Massachusetts Declaration of Rights. See, e.g.,
Commonwealth v. Tyree, 455 Mass. 676, 683 (2010) ("presumption
against warrantless searches reflects the importance of the
warrant requirement to our democratic society").
Moreover, since neither the statutory language nor prior
appellate construction5 expressly precludes the use of warrant
5 The Appeals Court recently acknowledged that, "in this
Commonwealth, a requirement of consent [to a warrantless blood
draw] is imposed by statute even when . . . one is not imposed
by the Federal Constitution." Commonwealth v. Dennis, 96 Mass.
App. Ct. 528, 532 (2019), citing Commonwealth v. Davidson, 27
Mass. App. Ct. 846, 848-849 (1989) (recognizing statutory
"right" to refuse test precluding warrantless compulsion of test
despite presence of probable cause and exigent circumstances).
Neither Dennis nor any other appellate precedent expressly holds
that the implied consent statute prohibits a neutral and
12
procedure to recover admissible evidence of a defendant's blood
alcohol content, the Legislature's repeated amendment of
subsections (e) and (f) (1) without change to their fundamental
admissibility, consent, and refusal provisions is of no
interpretive significance. See ante at , quoting Colturi,
448 Mass. at 812. See also Commonwealth v. Dayton, 477 Mass.
224, 227 (2017) ("It is one thing to infer the Legislature's
intent based on an implied awareness of our express holdings; it
is quite another to infer it based on dictum in our opinions").6
2. Frustration of purpose. The court's interpretation of
subsections (e) and (f) (1) impermissibly frustrates the public
detached magistrate from issuing a search warrant to obtain
evidence of a defendant's blood alcohol test.
6 The same principle applies to the Appeals Court's aside in
Davidson, 27 Mass. App. Ct. at 849, postulating that at the time
the Legislature added subsection (e) in 1961, "[t]he purpose of
the provisions regarding actual consent (as opposed to the
implied consent established by the first sentence of
§ 24 [1] [f]) seems to have been to avoid forced testing --
i.e., testing by means of physical compulsion -- that was
thought after Rochin v. California, 342 U.S. 165 (1952), to be
of dubious constitutional validity." This court later restated
that observation in a footnote. See Opinion of the Justices,
412 Mass. 1201, 1208 n.6 (1992) (responding to Senate's reported
question regarding constitutionality of proposal to make refusal
evidence admissible as additional inducement to submit to test).
More fundamentally, intent to prevent police from physically
compelling submission to testing in the absence of a warrant,
and to deter the type of egregious, warrantless police abuse
that occurred in Rochin, need not preclude use of reasonable
force in police execution of a valid search warrant, issued upon
a magistrate's finding of probable cause.
13
safety purpose of the larger statutory scheme laid out in G. L.
c. 90, §§ 24-24X. See Saccone v. State Ethics Comm'n, 395 Mass.
326, 334 (1985) (where "literal import of any particular clause
or section" is inconsistent with "the general meaning and object
of the statute," court must interpret "according to the spirit
of the act" [citation omitted]). This court has held that the
general purpose of that statutory scheme is to "protect the
public from drivers whose judgment, alertness, and ability to
respond promptly and effectively to unexpected emergencies are
diminished because of the consumption of alcohol.'" 7 Colturi,
7 The present case concerns precisely this type of impaired
ability to respond to the unexpected -- here, the disabled
vehicle of another substance-impaired motorist who had crashed
her sport utility vehicle (SUV) into the guardrail of a highway
onramp, coming to a stop in the middle of the ramp, almost
perpendicular to the road. In the expert opinion of the State
trooper who performed the accident reconstruction analysis in
this case, ninety-five percent of the population, traveling at
the advisory speed limit of 30 miles per hour on the same road
and at the same time of night (i) could have seen the stopped
SUV from in excess of 200 feet away (and certainly no less than
149 feet away), and (ii) reacted in time to brake and come to a
complete stop within a distance of 142 feet, avoiding collision.
The expert also opined that, alternatively, there was 8.75 feet
of open road between the SUV and curb, and a further 6.50 feet
from the curb to the guardrail, to allow a driver to maneuver
around the disabled vehicle. Unable to engage in the requisite
type of split-second decision-making and action necessary to
avoid collision, the impaired defendant instead initiated a
chain of events that ended with the victim trapped beneath the
defendant's car, which dragged the victim along the road beneath
it for some 257 feet before dislodging her, alive but critically
injured.
14
448 Mass. at 812-813, quoting Commonwealth v. Connolly, 394
Mass. 169, 172-173 (1985).
Since the 1906 enactment of its statutory predecessor, St.
1906, c. 412, § 4 (mandating punishment for motor vehicle
operation "while under the influence of intoxicating liquor" by
maximum fine of one hundred dollars or imprisonment for up to
six months), the Legislature frequently has amended G. L. c. 90,
§ 24, seeking to enhance the statute's public safety purpose
through increasingly effective mechanisms to deter substance-
impaired driving. See, e.g., St. 1909, c. 534, § 22 (doubling
maximum fine for first offense; mandatory prison term of at
least one year, not to exceed two years, upon conviction of
second offense); St. 1913, c. 123, § 1 (increased punishment for
first offense, to include imprisonment for at least two weeks
but not to exceed two years, maximum fine of $200, or both);
Commonwealth v. Lyseth, 250 Mass. 555, 558 (1925) (interpreting
statute punishing driving "while under the influence of
intoxicating liquor" in accordance with plain language and
"purpose . . . to regulate the use of motor vehicles on the
public ways, in the interests of the public welfare"); St. 2003,
c. 28, § 1 (adding new "per se" violation to G. L. c. 90,
§ 24 [1] [a] [1], operating motor vehicle "with a percentage, by
weight, of alcohol in [the] blood of eight one-hundredths or
greater," as alternative to operating "while under the influence
15
of intoxicating liquor"); Colturi, 448 Mass. at 813 ("It is
beyond reasonable dispute that, in adding a per se violation to
the OUI statute, the Legislature intended to strengthen the
protections afforded the public from drivers who might be
impaired by the consumption of alcohol"). Since 1961, m any of
these amendments have promoted the Legislature's intent to
encourage OUI arrestees to take a blood alcohol test, to
"provid[e] the most reliable form of evidence of intoxication
for use in subsequent proceedings," and thereby assist the
Commonwealth in carrying its burden of proof beyond a reasonable
doubt, or otherwise exculpating the defendant. Mackey v.
Montrym, 443 U.S. 1, 19 (1979).
In 1961, the Legislature first enacted a statutory
presumption that a person was under the influence when his or
her blood alcohol content exceeded a set limit. G. L. c. 90,
§ 24 (1) (e), inserted by St. 1961, c. 340. That amendment
yoked enforcement of G. L. c. 90, § 24, to an accurate
determination of a defendant's blood alcohol content and to
introducing that evidence to establish impairment at a criminal
trial for OUI. See id. (blood alcohol content as measured by
chemical test "deemed relevant" to establishing "under the
influence" element of offense). Absent a defendant's consent,
however, results of a blood alcohol test performed "by or at the
direction of a police officer" were inadmissible. Id. In 1967,
16
the Legislature added subsection (f), incorporating a remedial
sanction into the existing deterrence scheme by mandating an
automatic ninety-day license suspension for any driver arrested
for OUI who refused to take a breath test despite notice of the
consequence. G. L. c. 90, § 24 (1) (f), inserted by St. 1967,
c. 773. The court's theory that the Legislature intended those
amendments to create an absolute individual statutory right to
refuse submission to a blood alcohol content test, ante at ,
is not supported by the historical record. There is no basis to
suggest that any legislative concern to guard against potential
police abuse or afford arrestees due process extended to tests
conducted under the authority of a valid warrant.
Contrary to the court's suggestion, ante at note 12, it is
unlikely that the enactment of Massachusetts's implied consent
law in December of 1967 had much, if any, connection to the June
1966 release of the United States Supreme Court's decision in
Schmerber, 384 U.S. at 770-771 (upholding warrantless blood test
of unconscious driver performed by doctors at police request,
due to exigent circumstances and probable cause). The
conventional wisdom attributes States' adoption of implied
consent laws to "the intent of the statutory draftsmen to
17
obviate the element of physical coercion."8 Rosenberg,
Compulsory Intoxication Tests: A Suggestion for Massachusetts,
50 Mass. L.Q. 145, 156 (1965). See Bruns, Driving While
Intoxicated and the Right to Counsel: The Case Against Implied
Consent, 58 Tex. L. Rev. 935, 941-942 (1980). Yet both the
timing and the content of the Massachusetts implied consent law
more likely resulted from the influence of familiar, court -
approved formulations in widely adopted model statutes and
powerful Federal financial incentives. See Bruns, supra at 959
(concluding that States' implied consent laws are "as much a
result of historical snowballing as of a considered choice by
legislatures").
Most of the language comprising Massachusetts's implied
consent law had been operative in many other States' statutes
for more than a decade before the 1967 Legislature added them to
8 Despite the express intent of the Supreme Court majority
that its opinion in Rochin, 342 U.S. at 174, not implicate the
"use of modern methods and devices for discovering wrongdoers
and bringing them to book," Rochin does appear to have raised
certain lingering doubts about the constitutionality of
compelled testing, less due to the majority's opinion that
police use of "force so brutal and so offensive to human dignity
in securing evidence from a suspect" offended due process and
rendered such evidence inadmissible, id., and rather more due to
Justice Douglas's concurring opinion that "words taken from [a
defendant's] lips, capsules taken from his stomach, blood taken
from his veins are inadmissible provided they are taken from him
without his consent" based upon the privilege against self -
incrimination under the Fifth Amendment to the United States
Constitution. Id. at 179 (Douglas, J., concurring).
18
G. L. c. 90, § 24. In 1953, New York's Legislature enacted the
nation's first implied consent statute. See N.Y. Veh. & Traf.
Law § 71-a, inserted by 1953 N.Y. Laws c. 854. That enactment
followed the recommendation of a joint legislative committee
appointed to study "the apparent inability of our police and
courts to effectively enforce laws forbidding driving while
under the influence of intoxicating beverages." Interim Report
of the New York State Joint Legislative Committee on Motor
Vehicle Problems: Chemical Tests for Intoxication, N.Y. Leg.
Doc. No. 25, at 9 (Jan. 1953) (Interim Report). See Schutt v.
Macduff, 205 Misc. 43, 46 (N.Y. Sup. Ct. 1954) (law responded to
"urgent need" to promote "procurement of chemical tests for the
purpose of definitely determining whether or not an accused
driver was intoxicated to the extent of impairing his driving
ability"). In its comprehensive report, the New York committee
explained that, despite its own legal conclusion that compelled
submission to testing would not violate any constitutional
right, the proposed statute entirely avoided any question of a
constitutional right to resist the test by providing "the
accused . . . the choice of waiving his [constitutional right] -
- assuming such a right exists -- or losing the privilege to
continue driving on our highways." Interim Report, supra at 26.
By February of 1957, it was clear that the United States
Constitution posed no obstacle to "so slight an intrusion as is
19
involved in applying a blood test of the kind to which millions
of Americans submit as a matter of course nearly every day ."
Breithaupt v. Abram, 352 U.S. 432, 439 (1957). Still, the
National Conference of Commissioners on Uniform State Laws
adopted the Uniform Chemical Tests for Intoxication Act, modeled
on the New York language, as amended by 1954 N.Y. Laws c. 320,
in July of that same year. See Handbook of the National
Conference of Commissioners on Uniform State Laws and
Proceedings of the Annual Conference, at 129, 216-229 (1957).
"Thus [implied consent] legislation conceived to overcome a
constitutional obstacle gained institutional momentum at the
very time that the United States Supreme Court removed the
obstacle." State v. Newton, 291 Or. 788, 796 (1981). This
"institutional momentum" continued to build with the inclusion
of the Uniform Chemical Tests for Intoxication Act as § 6-205.1
of the 1962 Uniform Vehicle Code, which encouraged additional
States' enactment of implied consent provisions, 9 and ultimately
9 Some other State Legislatures, including those of Idaho,
Kansas, and Utah, enacted their own implied consent statutes
after the New York model even prior to the inception of the
Uniform Chemical Tests for Intoxication Act in 1957. See
Handbook of the National Conference of Commissioners on Uniform
State Laws and Proceedings of the Annual Conference , at 218
(1957). Nebraska, North Dakota, South Dakota, Vermont, and
Minnesota joined their ranks by the time implied consent
appeared as § 6-205.1 of the Uniform Vehicle Code, in 1962.
National Committee on Uniform Traffic Laws and Ordinances,
Recent Developments in Chemical Test and Implied Consent Laws,
20
shaped Federal standards. See, e.g., Report of the Legislative
Research Council Relative to Massachusetts Implementation of the
National Highway Safety Act of 1966 (Jan. 30, 1968), 1968 Senate
Doc. No. 980, at 48 (Massachusetts Implementation of the
National Highway Safety Act) (standard promulgated under Federal
Highway Act of 1966 and requiring implied consent provision was
"based on provisions of the Uniform Vehicle Code").
Notably, Massachusetts lagged far behind most other States
in its initial embrace of blood alcohol testing as evidence of a
driver's level of intoxication,10 and trailed many others in its
at 7 (Apr. 24, 1963). Before year end of 1963, Virginia, North
Carolina, Minnesota, and Connecticut all followed suit. See
Comment, Implied Consent to a Chemical Test for Intoxication:
Doubts about Section 6-205 of the Uniform Vehicle Code, 31 U.
Chicago L. Rev. 603, 604 & n.11 (1964). Throughout this period,
State courts consistently rejected challenges to the
constitutionality of these statutes. Id. at 605 & n.13 (citing
cases and early exception of Schutt v. Macduff, 205 Misc. 43, 46
[N.Y. Sup. Ct. 1954], prompting 1954 amendment of New York
model, which withstood subsequent challenges once altered).
10As of 1952, the only other States, apart from
Massachusetts, that had not yet recognized chemical testing to
determine operator sobriety were Arkansas, Louisiana, Georgia,
Kentucky, and Wyoming. See Brooks, Chemical Tests for Driving
Under the Influence, 37 Mass. L.Q. 10, 17 (1952). Nearly
another decade would pass until the Commonwealth amended G. L.
c. 90, § 24, to add subsection (e), setting a blood alcohol
content limit and accompanying presumption of "under the
influence," and establishing the admissibility of breath or
blood test results as evidence thereof. St. 1961, c. 340. In
1952, the Legislature apparently remained wary as to the
accuracy of the proposed scale correlating blood alcohol content
with extent of intoxication, and the accuracy of tests to
measure blood alcohol content. See Brooks, supra.
21
later adoption of implied consent provisions. 11 There can be
little doubt as to why the bill that finally succeeded in making
implied consent Commonwealth law was the one Governor John Volpe
dispatched to the Legislature in March of 1967, see 1967 House
J. 926, 928: Massachusetts stood to lose the opportunity to
access up to $7 million in new Federal highway funding along
with ten percent of its present Federal highway aid, unless it
complied with standards promulgated by the Secretary of
Transportation under the Federal Highway Act of 1966. See Pub.
L. No. 89-564, Title I, § 101, inserting 23 U.S.C. §§ 401-404,
80 Stat. 731 (Sept. 9, 1966). By the time the Supreme Court
decided Schmerber, 384 U.S. 757, in June of 1966, the Federal
legislative process that would culminate with President Lyndon
Johnson signing the Federal Highway Act in September was already
well under way, negating any suggestion that it was reactive to
the Court's decision.
11This was despite Governor John Volpe's efforts to
implement license suspension measures to "correct" the evident
"weakness" of the 1961 amendment providing for testing yet
allowing "[d]rinking drivers . . . to refuse with impunity to
take [them]." 1966 House Doc. No. 3131, at 7. The Legislature
consigned the Governor's first such attempt, 1962 Senate Doc.
No. 764, and many related, subsequent bills to languish in
committee "study" over the next five years. See, e.g., 1963
House Doc. No. 2476; 1964 House Doc. No. 1125; 1964 House Doc.
No. 1319; 1965 House Doc. No. 1127; 1965 House Doc. No. 1729;
1965 Senate Doc. No. 839.
22
The Secretary of Transportation included a requirement for
implied consent authority as part of Highway Safety Program
Standard No. Eight, "Alcohol in Relation to Highway Safety,"
despite the Schmerber Court's recognition that where police
obtained a warrant or satisfied the exigent circumstances
exception to the warrant rule, the United States Constitution
did not prevent compelled blood tests, so long as performed in a
reasonable manner.12 See Massachusetts Implementation of the
National Highway Safety Act, supra at 69; Bruns, 58 Tex. L. Rev.
at 943-944. Of course, absent refusal, the implied consent
approach still provided a more efficient means of collecting
evidence than compelled testing, but there could no longer be
12In Schmerber, the Court reaffirmed its holding in
Breithaupt (which predated the Court's extension of the Fourth
Amendment exclusionary rule to bind the States) that a blood
alcohol content test performed on an unconscious driver upon
warrantless police request was constitutional, and its results
were admissible at trial for OUI. Notably, the Schmerber Court
emphasized that, in that case, "the test was performed in a
reasonable manner. Petitioner's blood was taken by a physician
in a hospital environment according to accepted medical
practices." Schmerber, 384 U.S. at 771. The ruling expressly
did not extend to any test "made by other than medical personnel
or in other than a medical environment," which "might be to
invite an unjustified element of personal risk of infection and
pain." Id. at 772. Moreover, the Schmerber Court explicitly
recognized that "[i]t would be a different case if the police
initiated . . . violence, . . . or responded to resistance with
inappropriate force," and further acknowledged "[t]he integrity
of an individual's person [as] a cherished value of our
society." Id. at 760 n.4, 772.
23
any doubt that consent was unnecessary for a blood test to pass
constitutional muster.
If the absence of blood testing from the implied consent
provisions the Legislature enacted in 1967 indicates any
continuing reservations about compelled testing, those
reservations had disappeared by 1980, when the Legislature
amended subsection (f) (1) such that refusing to consent to a
blood test carried the same remedial license suspension
consequences as refusing a breathalyzer test, enhancing th e
arrestee's incentives to submit to testing. See Memorandum from
Secretary of Public Safety to Governor's Assistant Legislative
Secretary regarding House Bill No. 2046 (June 27, 1980) (on file
at the Massachusetts Archives). The 1980 amendment was enacted13
in response to an emergency physicians' group report noting the
typical absence of breath test equipment at hospitals, a lack of
sanction for refusing a blood test, and no routine practice of
testing blood alcohol content for medical purposes, which me ant
that injured drivers taken from a crash site to the hospital
often were not tested. Id.13The 1980 amendment, like many other amendments to the
G. L. c. 90, § 24, scheme, was implemented with an emergency
executive preamble, proclaiming its immediate effect in the
public's interest "in order that the tests and analyses provided
for may be used in determining the operation of motor vehicles
by persons under the influence of intoxicating liquor." Letter
from the Governor to the Secretary of the Commonwealth ( July 2,
1980).
24
Subsequent amendments to G. L. c. 90, § 24, further
enhanced incentives to submit to blood alcohol content tests,
some specifically aiming to deter repeat offenders' refusal to
submit to testing as a strategy to reduce the likelihood of
conviction. For example, a 1990 Senate committee report
suggested, based upon "increasing evidence . . . [of] the
importance that these [blood alcohol content] tests play in
obtaining a drunk driving conviction, [that] the state should
make every effort to have test results from every person
arrested for drunk driving." Report of the Senate Committee on
Post Audit and Oversight Relative to Controlling the Drunk
Driver: The 1980s in Review, at 30 (Dec. 26, 1990), 1990 Senate
Doc. No. 1900. That report also recommended increasing the
license suspension period for refusing to take a breath or blood
test to be twice as strong as the sanction for taking the test
and failing it, as well as increasing penalties for subsequent
offenders' refusals.14 See Letter from the Governor to the
14The affidavit submitted with the search warrant
application in this case reported that a background check of the
defendant revealed three prior arraignments on OUI charges, and
one prior conviction. His registry of motor vehicles history
revealed multiple prior license suspensions for refusal to
consent to testing. If the conviction of OUI causing serious
bodily injury were upheld, the defendant would face a ten-year
license suspension in the event that he refused a blood alcohol
test upon any subsequent arrest for OUI. See G. L. c. 90,
§ 24 (1) (f) (1) (penalty for refusal after having been
convicted of violation of § 24L).
25
Senate and House (May 27, 2005), 2005 House Doc. No. 4099
(transmitting draft legislation, later enacted as St. 2005 ,
c. 122, and expressly stating intent to "increase the [license]
suspension period for people who refuse the breathalyzer or
field sobriety tests . . . to create an increased incentive to
submit to such tests as required by law").
The court raises a concern over of the dangers of blood
draws, ante at , highlighting language from the subsection
regarding the lack of implied consent for hemophiliacs and
diabetics. See G. L. c. 90, § 24 (1) (f) (1). However, the
statute anticipates such dangers by requiring that these blood
tests be performed by medical professionals at a medical
facility. Id. The police here provided the defendant with
multiple opportunities to comply with the warrant, and officers
handcuffed the defendant to the stretcher in an effort to
prevent the type of harm presented by "sharps" that the majority
raises. Ante at . At the time of the blood draw, the nurse
testified, the defendant cooperated with the procedure, and the
nurse exercised care by following all standard procedures of the
hospital, including the nurse's use of a vacuum system to reduce
the "sharps" danger to the nurse. Medical professionals
typically identify a condition like hemophilia or diabetes in
taking a patient's medical history, not to mention that persons
26
afflicted by those conditions often wear or carry specific
identification.
The court points out that "actual consent for blood draws
is also a safety measure." Ante at . And it is. But for
every hemophiliac, diabetic, or person on anticoagulant
medication who is arrested for OUI, or for every medical worker
who is injured by a sharp needle when blood is drawn --
contingencies that as a matter of course are addressed by the
medical profession without incident -- immeasurably more danger
results from permitting repeat OUI offenders to get behind the
wheel. If the concern is "safety measures," the best response
is to provide jurors with the best evidence of sobriety, or lack
thereof, so as to help deter repeat offenders from getting
behind the wheel of a motor vehicle while intoxicated. By not
precluding the use of warrants to collect blood alcohol content
evidence from a defendant's blood, and consistently legislating
to encourage arrestees to submit to blood alcohol content tests,
I believe that this course is the one our Legislature intended
to follow.
Far from intending to grant defendants an absolute
statutory right to deprive juries of the most probative evidence
of driver impairment, the Legislature intended the provisions of
subsections (e) and (f) (1) to facilitate, within the confines
of the Declaration of Rights and the United States Constitution,
27
the efficient collection of reliable evidence by encouraging
defendants to consent to testing, and to facilitate justice by
providing the trier of fact with the most probative evidence of
guilt or innocence. Common sense and the canons of statutory
construction clearly demonstrate that the Legislature did not
intend to prohibit the admissibility of blood alcohol content
evidence obtained pursuant to a search warrant based upon
probable cause.15
3. Persuasive constructions in other jurisdictions. Other
States have enacted implied consent laws that include a
directive that "no such test . . . shall be made," following a
defendant's refusal, while remaining silent regarding tests
performed pursuant to a warrant. Appellate courts in those
States have construed these cognate provisions to encompass only
tests pursuant to warrantless officer requests. 16 Notably, and
15Proscribing the use of a warrant to obtain evidence of
driver impairment "would be to place allegedly drunken drivers
in an exalted class of criminal defendants, protect ed by the law
from every means of obtaining the most important evidence
against them." Pena v. State, 684 P.2d 864, 869 (Alaska 1984)
(Compton, J., dissenting).
16I would join with those courts construing the "no such
test" language so as not to exclude test results obtained
pursuant to a valid warrant. See, e.g., Britton v. State, 631
So. 2d 1073, 1076-1077 (Ala. Crim. App. 1993); Metzner v. State,
2015 Ark. 222, at 10; State v. Smith, 134 S.W.3d 35, 40 (Mo. Ct.
App. 2003); Beeman v. State, 86 S.W.3d 613, 616-617 (Tex. Crim.
App. 2002); State v. Stone, 229 W. Va. 271, 284 (2012). See
also Brown v. State, 774 N.E.2d 1001, 1007 (Ind. Ct. App. 2002)
28
without coincidence, State appellate decisions interpreting
similar "no test" language to prohibit police from obtaining
blood alcohol content evidence under a warrant, including those
cited ante at , were subsequently superseded by statutory
amendment: These Legislatures' responsive amendments each carry
a "for the avoidance of doubt" connotation suggesting that the
court misconstrued the statute as initially written. See State
v. Evans, 378 P.3d 413, 416 (Alaska Ct. App. 2016) (quoting
revised statute: "Nothing in this section shall be construed to
restrict searches or seizures under a warrant issued by a
judicial officer, in addition to a test permitted under this
section"); McAllister v. State, 754 S.E.2d 376, 379 (Ga. App.
Ct. 2014) (noting similar legislative amendment); R.I. Gen. Laws
§ 31–27–2.9(a), inserted by R.I. St. 2009, c. 210, § 2
("Notwithstanding any provision of § 31-27-2.1, . . . a chemical
test may be administered without the consent of that individual
provided that the peace officer first obtains a search warrant
authorizing administration of the chemical test"). See also
State v. Stanley, 217 Ariz. 253, 257 (Ct. App. 2007) ("the
legislature's amendments [including 'or pursuant to a search
(noting statutory silence on question and concluding that
"provisions of the implied consent law do not act either
individually or collectively to prevent a law enforcement
officer from obtaining a blood sample pursuant to a search
warrant").
29
warrant'] were 'obviously . . . a response' to Collins v.
Superior Court, [158 Ariz. 145 (1988)]"); State v. Garnenez,
2015-NMCA-022, 344 P.3d 1054, 1058 (N.M. Ct. App. 2014), quoting
N.M. Stat. Ann. § 66-8-111(A) (noting amendment that added
"except when a municipal judge, magistrate or district judge
issues a search warrant" after "none shall be administered").
4. Conclusion. It is now well established that the
alcohol content of an individual's blood is not testimonial
evidence, and its admission in evidence does not implicate self -
incrimination concerns. See Schmerber, 384 U.S. at 764;
Brennan, 386 Mass. at 783. As the court acknowledges, obtaining
or admitting such evidence, subject to a valid warrant, does not
otherwise violate the United States Constitution or the
Declaration of Rights. See ante at . The admissibility,
consent, and refusal provisions of subsections (e) and (f) (1)
pose no roadblock either to the issuance and execution of a
valid warrant to collect evidence of a defendant's blood alcohol
content, or to admitting that probative evidence of impairment
at trial. The Legislature assuredly did not enact the implied
consent statute to render inadmissible the result of a blood
alcohol content obtained pursuant to a search warrant issued by
a neutral and detached magistrate upon an informed finding of
probable cause, and subject to the requirement of reasonable
execution.
30
And why would they? The Legislature has exercised its
police power to regulate the use of motor vehicles and promote
public safety for more than a century: "No one has a right to
use the streets . . . as he chooses, without regard to the
safety of other persons who are rightly there." Commonwealth v.
Kingsbury, 199 Mass. 542, 545 (1908). When a person operates a
motor vehicle while under the influence of intoxicating liquor,
that person endangers the lives and safety of every other driver
and passenger on the road. There is no reason why prosecutors
should have to try OUI charges with both arms tied behind their
backs, especially when the jury do not and cannot know the
prosecutor's arms are thus bound by law.17 When "jurors find
facts, not from a fair consideration of the evidence, but rather
based upon bewilderment as to why no evidence of a breathalyzer
17Where blood alcohol content evidence is absent, jury
inquiries like, "Why would a [b]reathalyzer test be or not be
administered?" are common. Commonwealth v. Gibson, 82 Mass.
App. Ct. 834, 835-836 (2012). See Commonwealth v. Wolfe, 478
Mass. 142, 152 (2017) (Lowy, J., dissenting) (jury at
defendant's first trial, which resulted in mistrial, asked , "Are
we allowed to ask: 'Why there are no tests?' [e.g.,]
Breathalyzer or blood test?"); Commonwealth v. Palka, 97 Mass.
App. Ct. 1111 (2020) (trial judge gave instruction pursuant to
Commonwealth v. Downs, 53 Mass. App. Ct. 195, 197-201 [2001],
after explaining, "Every time I don't give it, they ask it as a
question"); Commonwealth v. Klegraefe, 97 Mass. App. Ct. 1106(2020) (jury asked whether breathalyzer test was performed);
Commonwealth v. Miller, 97 Mass. App. Ct. 1104 (2020) (jury
asked: "Did he have a breath test? Was it offered or
refused?"). I predict that the court's interpretation of the
implied consent statute to preclude an alternative legal means
to obtain that evidence will only exacerbate this problem.
31
test was introduced," Commonwealth v. Wolfe, 478 Mass. 142, 151
(2017) (Lowy, J., dissenting), and without explanation as to why
they lack such evidence, the trial's truth-seeking function is
impaired, and the rate of acquittals and recidivism
proliferates.
When it comes to evidence that the defendant refused to
submit to testing under the implied consent law, the
inadmissibility of that evidence is a price I embrace as the
cost of our precious liberty and the sanctity of the right
against self-incrimination. But when the Commonwealth has
obtained evidence of a defendant's blood alcohol conten t by
constitutional means, pursuant to a validly issued and
reasonably executed search warrant, there is no reason to
exclude that evidence, especially in light of the Legislature's
clear intent to promote its collection and use as the most
efficient means of enforcing the laws and deterring substance-
impaired driving. Contorting subsections (e) and (f) (1)
otherwise unnecessarily endangers human life and provides
unwarranted protection to dangerous repeat offenders. I would
uphold the trial judge's admission of the blood test results in
evidence at the defendant's trial and affirm the defendant's
conviction under G. L. c. 90, § 24L (2), for OUI causing serious
bodily injury.