Commonwealth v. Bohigian

• Court: Massachusetts Supreme Judicial Court
• Decided: November 13, 2020
• Docket: SJC 12858
• Status: Published

Opinion

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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.