The Massachusetts Supreme Judicial Court heard oral arguments in the case of Commonwealth v. Bohigian on February 10, 2020, dealing with the issue of the admissibility of a blood test in a OUI case involving Serious Bodily injury.  The case arose out of the Westboro District Court.

What is Serious Bodily Injury?  

Serious Bodily injury is defined as creating a substantial risk of death, involves total disability, the loss of any bodily function for a substantial period of time or involves substantial impairment of any bodily function for a substantial period of time.

Seizure of the Blood:  Why the Defense argued that it was improper?  

The issue in the case is whether blood can be drawn without the consent of the defendant when it is done pursuant to a search warrant.  In this case, the defendant was adamant that he would not consent to a blood draw.  The State police obtained a warrant for the defendant’s blood.  The blood of the defendant was forcibly obtained pursuant to the search warrant that was obtained from the on-call judge.  There was no dispute in this case that the defendant did not consent to the blood draw.

Both the trial judge and the motion judge concluded that the blood was admissible because it was drawn pursuant to a warrant and not drawn at the direction of a police officer.  The defendant had a motion to suppress to challenge the admissibility of the blood test and further moved to exclude the results prior to trial, both a judge of the Westboro District Court and Worcester District Court where the case was transferred for jury trial, denied the defendant’s motions.

The defense lawyer argued that Chapter 90 Section 24 provides for the exclusion of blood test results obtained at the direction of the government without the defendant’s consent.  The defense attorney argued that the statute does not provide for any exception when there is a search warrant and that by allowing the warrant to be used avoid the purposes of the statute to avoid forcible blood draws.  In this case, the blood was forcibly withdrawn from the defendant.

The Defense lawyer relied on the case of Commonwealth v. Arruda, 73 Mass. App. Ct. 903 to preclude the admission of blood test without the consent of the defendant.  The defense also relied on Commonwealth v. Davidson for the authority that without consent a blood test is inadmissible.

The motion judge ruled that because a warrant was obtained the blood was not taken at the direction of law enforcement.  The motion judge viewed this more as a case of a hospital blood draw where because it is not done at the request of law enforcement in some cases, it can be admissible into evidence.

The defendant argued that the Arruda decision only allows non consensual blood draws if not done at the request of a state actor, by the hospital.  The defendant argued that the statutory language does not make any exception for how the blood is drawn.

The defense argued that if a warrant a was a proper exception the police could apply for a warrant in every case to avoid the requirements of the statute.  I would expect the Massachusetts SJC to agree with the defense argument in this case.  Other statutes provide for exceptions to consent by court order.  Chapter 90 does not provide for any exception; accordingly, the court should not interpret the statute to provide for an exception when none was created by the legislature.  The SJC decision could prompt the legislature to amend the statute, but the SJC is required to interpret the statute as written and based on cannon of statutory construction the Court should not create an exception when none was expressly created by the legislature and the legislature has in other statutes created these exception, indicating that had the legislature contemplated an exception for court order it would have been expressly written into the statute.

As a Massachusetts OUI Lawyer, issues involving blood testing are likely to continue to appear before the Massachusetts Supreme Judicial Court as defense lawyers challenge the inadequate science behind hospital blood draws and their forensic reliability.

To read the filing of the Bohigan case, you can click on the Massachusetts Supreme Judicial Court website.

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