The Massachusetts SJC heard oral arguments on November 6, 2023 regarding two OUI Serious Injury cases involving accident and blood tests.  The issue before the Court is whether the requirement that the State police obtain consent to test blood applies to both a simple OUI and a more serious OUI involving serious injury or death.

In the case of Commonwealth v. Zucchino, the defendant was indicted and had a case in Salem Superior Court involving OUI-manslaughter, OUI serious bodily injury and leaving the scene of death among other charges.  Following the accident, the defendant was taken to the hospital where his blood was drawn.  After the blood draw, the State police applied for a warrant for the blood and tested the blood at the State police laboratory.  There are two possible blood draws in this case. First was the blood draw by the hospital and second the testing of the blood by the State police.

It was the testing by the State police without the defendant’s consent that was the subject of the motion and SJC argument.  A similar case also argued on the same day before the SJC was Commonwealth v. Cappellucci.  This case was heard in the Framingham District Court and alleged OUI serious bodily injury.  The defendant was also charged with OUI-drugs serious bodily injury.  In the

Framingham District Court, the presiding Judge of the Court, Judge Cunis suppressed the result of the blood test by the State police, stating that consent is required under the Massachusetts SJC decision of Commonwealth v. Moreau, 490 Mass. 387 (2022) for both blood drawing and analysis.  Judge Cunis stated that it would be an absurd result of a defendant charged with simple OUI had more statutory protections than a defendant charged with a more serious crime and found that consent requirement ran through all of the OUI offenses. Judge Cunis felt that he was constrained to allow the motion and indicated that the statute needs to be revised so that the intent is clearer.

The prosecutor in Cappellucci indicates that consent is not required not only for OUI serious injury cases but for OUI drugs charges as well as the statutory only references OUI alcohol.

In both of these cases, the SJC. should read the different penalties for OUI as containing the same rights.  As Judge Cunis pointed out, it would be illogical to have some rights pertain to a simple OUI but not a more serious OUI offense.  The SJC should find that the legislature could not have intended to require consent in one type of OUI offense but not another.  In both of these cases the issues was the testing by the State police as the blood was already tested by the hospital. It does not appear in either case that there was a challenge to the reliability of the hospital blood draw.  Hospital blood draws can be unreliable as they are not considered a forensic test.  This is why the Commonwealth sought to admit the State police blood test as it was done at the State police laboratory by Gas Chromatography which can produce more accurate results.  Further, in an OUI drugs arrest, the State police results would reveal the presence of drugs in the blood as a hospital test would not pick up the presence of drugs in the blood.  This is an important case for anyone charged with OUI serious bodily injury and it is important that the Court protect the defendant’s right of privacy and to be free from forced blood draws in any type of OUI prosecution.

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