A man was taken to the hospital following a car crash in North Attleboro.
Although police suspected that the man was intoxicated, they elected to forgo the standardized field sobriety test and chemical breath test and instead send the suspect to the hospital for immediate treatment.
The man’s behavior at the hospital led to a psychiatric commitment pursuant to G.L. c. 123, sec. 12.
(See my post Section 12: Forced Hospitalization for Mental Health Treatment.)
Hospital staff placed the man in restrains and, as part of the psychiatric commitment, took a blood sample.
The man did not consent to the blood draw. In fact, he expressly stated to the police and the hospital personnel that he did not want his blood taken.
Ultimately the man was charged with OUI.
His attorney filed a motion seeking to suppress evidence from the non-consensual blood draw.
The attorney argued, in part, that the blood sample evidence violated G. L. c. 90, § 24(1)(e) which states,
In any prosecution for a violation of paragraph (a) [under which the defendant was charged], evidence of the percentage, by weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, 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. . .
A district court judge denied the motion and the attorney appealed.
Today an Appeals Court panel issued a slip opinion affirming the lower court’s decision.
According to the Appeals Court,
Moreau, 490 Mass. at 391-392, clarified that the § 24 (1) (e) prohibition on nonconsensual blood alcohol content (BAC) testing by the police also applies to instances where defendant’s blood was drawn by hospital personnel during medical treatment and later obtained by the police. But it has no application here, where the testing at the hospital was not made by or at the direction of the police.3 The defendant asserts that Commonwealth v. Bohigian, 486 Mass. 209, 214 (2020), says that blood tests showing concentration of blood alcohol are inadmissible “regardless of who directs [them].” But what Bohigian, supra, actually says is “[q]uite apart from § 24 (1) (e), §24 (1) (f) (1) flatly and unambiguously prohibits blood draws without consent for the purposes of analyzing BAC, regardless of who directs it.” Because Bohigian applies only to subsection (1) (f) (1), however, and the defendant disclaims any reliance on that subsection, Bohigian does not help the defendant’s cause.
The full text of the slip opinion is attached below.