NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
17-P-1279 Appeals Court
COMMONWEALTH vs. BRIAN G. DENNIS.
No. 17-P-1279.
Hampden. April 2, 2019. - November 19, 2019.
Present: Rubin, Henry, & Wendlandt, JJ.
Motor Vehicle, Operating under the influence. Evidence, Blood alcohol test. Constitutional Law, Search and seizure, Blood test. Search and Seizure, Blood sample, Consent, Exigent circumstances. Consent. Practice, Criminal, Motion to suppress.
Complaint received and sworn to in the Palmer Division of the District Court Department on November 14, 2016.
A pretrial motion to suppress evidence was heard by Matthew J. Shea, J., and a motion for reconsideration was heard by him.
Erica M. Bruno for the defendant. Benjamin Shorey, Assistant District Attorney, for the Commonwealth.
RUBIN, J. In this case, we are required to examine the
consequences with respect to police practices in the
Commonwealth of three relatively recent United States Supreme
Court decisions relating to the scope of governmental authority 2
to draw and test the blood of an individual arrested for
operating while under the influence of intoxicating liquor. The
defendant argues that, because of these decisions, the motion
judge erred in denying his motion to suppress. We agree and
therefore reverse.
Background. In reviewing the denial of a motion to
suppress, we "accept the judge's subsidiary findings absent
clear error but conduct an independent review of his ultimate
findings and conclusions of law." Commonwealth v. Jimenez, 438
Mass. 213, 218 (2002). In his decision on the motion to
suppress, the judge credited the testimony of Officer Melissa
Dion of the Ludlow Police Department, who testified at the
motion to suppress hearing. The judge made findings of fact and
adopted Officer Dion's version of events as true. His findings,
supplemented by the testimony that he credited, Commonwealth v.
Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818
(2008), include the following:
At approximately 12:11 A.M. Officer Dion and another
officer, Andrew Roxo, responded to a report of a car crash, and
found the defendant unconscious in his vehicle, which had
apparently crashed into a utility pole. Witnesses from the
sheriff's department were present, and they extracted the
defendant from his car. The defendant regained limited ability
to respond to questions in a yes/no fashion and admitted that he 3
had had something to drink. Officer Dion observed a number of
empty alcohol containers in the defendant's car and the odor of
alcohol on the defendant. When asked, the defendant responded
that he did not have any preexisting medical conditions.
Officers Dion and Roxo called for an ambulance, which
arrived and took the defendant to Baystate Medical Center in
Springfield, where it arrived at approximately 1:00 A.M.
Officer Dion went with the defendant in the ambulance and stayed
with him at the hospital. The defendant was placed under arrest
for operating while under the influence of alcohol, and Miranda
warnings were administered to him by Officer Dion in the
ambulance. In the emergency room, Miranda warnings were
readministered by Officer Dion and the defendant said that he
had been drinking and was guilty.
Officer Dion's initial attempt to obtain the defendant's
consent to a blood draw was delayed when a nurse indicated that
the defendant was not medically cleared to consent. At
approximately 3:30 A.M., when the defendant apparently had been
medically cleared for a conversation about obtaining a blood
draw, and his demeanor had materially changed from his initial
one-word answers, Officer Dion read to the defendant at the
hospital a "statutory rights and consent form." That form
states, as relevant here: 4
"I am requesting that you submit to a chemical test to determine your blood alcohol concentration. . . . If you refuse this test, your license or right to operate in Massachusetts shall be suspended for at least a period of up to 180 days or up to life for such refusal. The suspension if you take the test and fail it is 30 days. . . . If you decide to take the test and complete it, you will have the right to a comparison blood test within a reasonable period of time at your own expense. The results of this comparison test can be used to restore your license or right to operate at a court hearing within 10 days. . . . It is not your option which type of chemical test to take. Refusal or failure to consent to take the test that I am requesting is a violation of the Implied Consent Law, and will result in your right to operate a motor vehicle being suspended as I have stated to you."
The form contains an additional "notice to persons holding
a commercial driver's license" that referred to a "required test
of blood, breath, or urine," but there is no evidence that this
notice was applicable to the defendant. The part of the form
that was applicable to the defendant does not specify that the
"chemical test" will be on blood, as opposed to breath, urine,
or anything else, nor does it state that blood will be drawn.
The judge found that the defendant stated that he understood the
form, that he signed the form, and that "[b]lood was taken from
the defendant after the form was signed." In denying the motion
to suppress, the judge concluded that "[a]t no time did the
defendant object to the drawing of blood or otherwise attempt to
frustrate the procedure."
The defendant filed a motion for reconsideration, which was
denied, and from which he also appeals. He subsequently entered 5
a conditional plea, admitting to facts sufficient for a finding
of guilty to operating while under the influence of alcohol,
G. L. c. 90, § 24 (1) (a) (1), but the parties and the motion
judge agreed that the defendant's right to appeal from the
denial of his motion to suppress and his motion for
reconsideration would be preserved. In Commonwealth v. Gomez,
480 Mass. 240, 252 (2018), the Supreme Judicial Court approved
this procedure, and consequently we turn to the merits of the
appeal.1
Discussion. The defendant argues that he did not consent
to the blood draw. The Commonwealth argues that he did. They
disagree about the standard that we should use to evaluate the
question. Some background about the law is in order.
A. Blood draws and consent. It is well settled that one
has a reasonable expectation of privacy in one's blood such that
the piercing of one's skin with a needle to draw blood, and the
testing of that blood, constitute a full-blown seizure and
search for purposes of the Fourth Amendment to the United States
Constitution. Commonwealth v. Angivoni, 383 Mass. 30, 32
1 Although it "does not object to the appeal on these grounds," the Commonwealth argues that the procedures set out in Gomez were not followed because the motion to suppress was not a "dispositive motion." Gomez, however, grants the plea judge discretion to allow a guilty plea conditioned on the ability to appeal from the denial of a nondispositive motion, and provides that we may hear the ensuing appeal with respect to that denial. Gomez, 480 Mass. at 252. 6
(1981). As a matter of constitutional law, neither can be
undertaken by government officials without probable cause and a
warrant, absent some exception to the warrant requirement. See
Missouri v. McNeely, 569 U.S. 141, 148 (2013), quoting Winston
v. Lee, 470 U.S. 753, 760 (1985) ("Such an invasion of bodily
integrity implicates an individual's 'most personal and deep-
rooted expectations of privacy'"). In the absence of probable
cause and a warrant (or exigent circumstances excusing the
failure to obtain that warrant), police thus may not draw blood
without consent.2 An agreement to have one's blood drawn and
tested amounts to a waiver of one's constitutional right.
Consequently, the constitutional standard for consent applies.
Such consent must be "voluntary" under the Federal Fourth
Amendment standard. This is not the "intentional relinquishment
of a 'known' right" standard. See Schneckloth v. Bustamonte,
412 U.S. 218, 238 (1973). Rather "[t]he Commonwealth must show
consent unfettered by coercion, express or implied, and also
something more than mere acquiescence to a claim of lawful
authority" (quotations and citation omitted). Commonwealth v.
Ortiz, 478 Mass. 820, 823 (2018).
2 The search incident to an arrest exception cannot justify a warrantless blood draw. See Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016). 7
By contrast, where there is an exigency, the drawing and
testing of blood requires probable cause, but the requirement of
a warrant is excused. If there is probable cause to believe an
individual has been driving while under the influence of
intoxicating liquor, and there are exigent circumstances
excusing the warrant requirement, the Federal Constitution
imposes no requirement of consent before blood may be drawn from
an individual, even if the police have no warrant.
Nonetheless, we have held 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. As we held in Commonwealth
v. Davidson, 27 Mass. App. Ct. 846, 848-849 (1989), where a
blood draw by police is for these reasons permitted under the
Fourth Amendment, "[t]he right of refusal [a defendant] does
have stems from the statute, which requires that a test not be
conducted without his consent." In this regard, and perhaps
surprisingly, as we described in Davidson, a State law right to
refuse is provided by what is colloquially called our "implied
consent" law. Like other States, the Commonwealth has such a
law, and its text states:
"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 8
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] . . . ."
G. L. c. 90, § 24 (1) (f) (1).
But, despite purporting to state in the quoted passage that
one is "deemed to have consented" simply by operating a motor
vehicle in the manner described, it is clear that the statute in
fact requires actual consent before the police may undertake a
blood (or breath) test. That is because it goes on to say,
"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 . . . ."
(Longer periods of revocation are provided for those who have
certain previous convictions.) In Davidson, however, we held
that the test for consent under the statute is easier to meet
than the test for consent under the Federal Constitution. We
said, "Typically, where a right is conferred by statute and
is not a fundamental constitutional right, we apply
traditional indicia of waiver of rights. . . . Traditional
indicia include waiver by inaction, by express agreement, by
untimely motion, and by failure to object. . . . It is 9
apparent from context that G. L. c. 90, § 24(1)(e) and (f),
do not contemplate voluntary consent in the constitutional
sense" (quotation and citations omitted). Davidson, 27 Mass.
App. Ct. at 848-849.
B. When are there exigent circumstances? Where, as in
this case, there is probable cause to believe an individual
has been operating while under the influence of intoxicating
liquor but there is no warrant authorizing a blood draw,
which test for consent applies thus depends upon whether
there are exigent circumstances excusing the need for a
warrant. In Schmerber v. California, 384 U.S. 757 (1966), a
case in which there was probable cause to believe that an
individual involved in a one-car accident had been operating
the vehicle while under the influence of intoxicating liquor,
the United States Supreme Court held that no warrant was
necessary because of exigent circumstances. See id. at 770
("Search warrants are ordinarily required for searches of
dwellings, and, absent an emergency, no less could be
required where intrusions into the human body are
concerned"). The Supreme Court concluded that the police
officer in that case "might reasonably have believed that he
was confronted with an emergency, in which the delay
necessary to obtain a warrant, under the circumstances,
threatened 'the destruction of evidence,' Preston v. United 10
States, [376 U.S. 364, 367 (1964)]. We are told that the
percentage of alcohol in the blood begins to diminish shortly
after drinking stops, as the body functions to eliminate it
from the system. Particularly in a case such as this, where
time had to be taken to bring the accused to a hospital and
to investigate the scene of the accident, there was no time
to seek out a magistrate and secure a warrant." Id. at 770-
771.
Although Schmerber involved an accident and the need to
investigate, in 1989 in Davidson we construed Schmerber broadly,
holding that "[w]here there is probable cause to believe that a
defendant has been operating a vehicle while under the influence
of intoxicating liquor, the defendant has no constitutional
right to refuse a blood test or a breathalyzer test" (emphasis
added). Davidson, 27 Mass. App. Ct. at 848. Although not
stated explicitly, this holding necessarily reflects our
conclusion that Schmerber stands for the proposition that there
is always exigency when there is probable cause to believe an
individual has been operating while under the influence of
intoxicating liquor, presumably because of the predictable
dissipation of blood alcohol.
Under Davidson, then, whenever there was probable cause to
arrest a driver for operating while under the influence of
intoxicating liquor, because there was always an exigent 11
circumstance, even in the absence of a warrant, the Federal
Constitution was held to play no role in preventing even a
compelled blood draw. Rather, since Davidson was decided,
whenever there has been probable cause to believe an individual
was operating while under the influence of intoxicating liquor,
we have, employing only the restrictions imposed by our implied
consent law, applied the "traditional indicia" standard to
determine the validity of consent to a blood test. Utilizing
that standard, we have held that "valid consent only requires
'verbal agreement to undergo, lack of objection to, or
cooperation in the performance of, the blood testing.'"
Commonwealth v. Thompson, 87 Mass. App. Ct. 572, 575 (2015),
quoting Commonwealth v. Carson, 72 Mass. App. Ct. 368, 370
(2008).
Recent United States Supreme Court decisions, however, make
clear that the holding in Davidson on the scope of the exigent
circumstances exception is no longer good law. Six years ago,
in Missouri v. McNeely, 569 U.S. 141 (2013), the Supreme Court
clarified that the scope of the exigent circumstances exception
to the warrant requirement articulated in Schmerber is not as
broad as we concluded it was in Davidson. Specifically, in
McNeely, the Court held that the exigent circumstances that
justify dispensing with a warrant are not invariably present
when there is probable cause in drunk driving cases, even though 12
blood alcohol will predictably dissipate. In McNeely, the Court
held that unless, upon an examination of the "totality of the
circumstances," the government has demonstrated that "the
officer might reasonably have believed that he was confronted
with an emergency, in which the delay necessary to obtain a
warrant, under the circumstances, threatened the destruction of
evidence" a warrant is required before blood may be drawn from
an individual with respect to whom there is probable cause to
believe he or she has been operating while under the influence
of intoxicating liquor (quotation and citation omitted).
McNeely, supra at 150. The Court reaffirmed Schmerber, in which
a defendant had been driving a car that had collided with a
tree. See Schmerber, 384 U.S. at 758 n.2. The Court, however,
rejected the contention that "whenever an officer has probable
cause to believe an individual has been driving under the
influence of alcohol, exigent circumstances will necessarily
exist because [blood alcohol content] evidence is inherently
evanescent." McNeely, supra at 151. The Court held that, "[i]n
those drunk-driving investigations where police officers can
reasonably obtain a warrant before a blood sample can be drawn
without significantly undermining the efficacy of the search,
the Fourth Amendment mandates that they do so." Id. at 152.
The Court held that this was so notwithstanding the fact that a
police officer must typically transport a drunk-driving suspect 13
to a medical facility and obtain the assistance of someone with
appropriate medical training before conducting a blood test, see
Schmerber, supra at 771-772, such that "some delay between the
time of the arrest or accident and the time of the test is
inevitable regardless of whether police officers are required to
obtain a warrant." McNeely, supra at 153. The Court
specifically stated, "Consider, for example, a situation in
which the warrant process will not significantly increase the
delay before the blood test is conducted because an officer can
take steps to secure a warrant while the suspect is being
transported to a medical facility by another officer. In such a
circumstance, there would be no plausible justification for an
exception to the warrant requirement." Id. at 153-154. The
Court also noted that many jurisdictions now permit police
officers to obtain warrants telephonically, or electronically,
reducing the amount of time necessary to obtain a warrant. See
id. at 154-155.
To be sure, after McNeely was decided, in 2015 we handed
down Thompson, 87 Mass. App. Ct. 572, in which, in reliance on
Davidson, we applied the statutory traditional-indicia test for
consent to a blood draw by someone with respect to whom there
was probable cause without discussing the presence or absence or
exigent circumstances. But this court in Thompson did not cite
McNeely; nor was it cited in the parties' briefs, which did not 14
indicate that there had been any change in the law since
Davidson. In any event, if there was any question after McNeely
whether, in the absence of exigent circumstances, we could still
apply only the weaker traditional-indicia test for consent in
cases in which there was probable cause that the individual had
been driving drunk, it was resolved by the Supreme Court's post-
Thompson decision in Birchfield v. North Dakota, 136 S. Ct.
2160, 2186 (2016), in which the Court stated that, in such
cases, in the absence of a warrant or exigent circumstances, the
defendant's actual consent to a blood test must be "voluntary"
under the Federal Fourth Amendment standard. The Court remanded
for determination whether the consent given to the blood tests
was "voluntary" under the constitutional standard. Id. See
Commonwealth v. Myers, 640 Pa. 653, 681 (2017) ("The Birchfield
Court's application of its holding further supports the
conclusion that, despite the existence of an implied consent
provision, an individual must give actual, voluntary consent at
the time that testing is requested"). See also State v. Vargas,
2017-NMSC-029, ¶ 22, 404 P.3d 416, 422 (holding that, after
Birchfield, "[i]mplied consent laws can no longer provide that a
driver impliedly consents to a blood draw"); State v. Romano,
369 N.C. 678, 691 (2017) (interpreting Birchfield, and holding
that "[t]reating [a statute according to which unconscious
drivers are deemed to have consented to a blood draw] as an 15
irrevocable rule of implied consent does not comport with the
consent exception to the warrant requirement because such
treatment does not require an analysis of the voluntariness of
consent based on the totality of the circumstances").
Finally, the Commonwealth argues that, even if the
constitutional standard applies, it is satisfied by the "implied
consent" described in the implied consent statute, such that
even in the absence of a warrant or exigent circumstances, only
the statutory requirement of consent measured by "traditional
indicia" stands in the way of a compelled blood test of any
person driving on any of the roadways defined in the statute.
This bold argument, however, founders on an even more recent
Supreme Court decision, Mitchell v. Wisconsin, 139 S. Ct. 2525
(2019), in which a majority of the Supreme Court made clear that
implied consent statutes, despite their monicker, have never
been held to give constitutionally adequate consent to a search.
See id. at 2533 (plurality opinion of Alito, J., joined by
Roberts, C.J., and Breyer and Kavanaugh, JJ.) ("[O]ur decisions
have not rested on the idea that these laws do what their
popular name might seem to suggest -- that is, create actual
consent to all the searches they authorize"); id. at 2545
(Sotomayor, J., joined by Ginsburg and Kagan, JJ., dissenting)
("The plurality does not rely on the consent exception here. 16
See [id.] at 2532. With that sliver of the plurality's
reasoning I agree").
To summarize, the consequences of McNeely, Birchfield, and
Mitchell for our assessment of the standards for evaluating
consent to a blood draw by a defendant with respect to whom
there is probable cause to believe he or she was operating a
motor vehicle while under the influence of intoxicating liquor
are as follows:
1. A blood draw requires a warrant or exigent
circumstances excusing the failure to obtain a warrant. There
are not necessarily exigent circumstances when there is probable
cause to believe someone has been operating while under the
influence, despite the predictable dissipation of blood alcohol.
When there is neither a warrant nor exigent circumstances, blood
may be drawn only with consent that meets the Federal
constitutional standard of actual, voluntary consent under the
Fourth Amendment, not the lower standard of consent required
under our statute.
2. When there are exigent circumstances so that the Fourth
Amendment poses no bar to a compelled blood test, a right to
refuse is provided by statute, and blood may be drawn only with
the individual's consent as measured under the "traditional
indicia" articulated in Davidson. 17
C. Application of the law to the facts. In this case, the
Commonwealth had probable cause to believe the defendant was
operating while under the influence of intoxicating liquor, but
lacked a warrant. The Commonwealth has not argued that there
were exigent circumstances, and at oral argument it explicitly
disclaimed any reliance on the exigent circumstances exception.
It has therefore waived any such claim, and we will proceed on
the basis that there were no exigent circumstances.
Commonwealth v. Louraine, 390 Mass. 28, 38 n.13 (1983).3 Under
the Federal Constitution, then, the defendant's blood could be
drawn only with his consent, and the question before us is
whether the Commonwealth has met its burden of demonstrating
that the defendant gave actual, voluntary consent under the
Federal constitutional standard. See Birchfield, 136 S. Ct. at
2186. The defendant argues that because the statutory rights
and consent form language about a "chemical test" is ambiguous,
his agreement to what was requested by the form is insufficient
to meet the Commonwealth's burden of proving voluntary consent
under this standard.
The motion judge did not analyze the case in this way
because he concluded, incorrectly, that the defendant had no
3 Consequently we need not and do not reach the question whether the Commonwealth could have established an exigency on the facts of this case. 18
constitutional right to refuse a blood test, and therefore
examined only the less stringent "traditional indicia" of
consent set forth in Davidson, under which the defendant's
failure to object has greater significance than it does under
the constitutional test. The judge did not address the
defendant's argument that the statutory consent form was too
ambiguous for his signature to manifest consent. Instead, the
judge found and emphasized the fact that "[a]t no time did the
defendant object to the drawing of his blood, exhibit any
reluctance to submit to the draw, or otherwise indicate his lack
of consent."
However, under the constitutional test, "[t]he isolated
fact that a person does not object to an entry does not
establish consent." Commonwealth v. Brown, 32 Mass. App. Ct.
649, 652 (1992). Contrast Thompson, 87 Mass. App. Ct. at 574
(reversing the allowance of a motion to suppress because the
judge incorrectly applied the constitutional standard instead of
the "traditional indicia" standard).
The consent form did not specify that the defendant was
consenting to a blood test. It stated a "chemical test." The
closest it came was stating, "It is not your option which type
of chemical test to take." But without some enumeration of the
types that may be given, that is inadequate to inform the
defendant that he is being asked to allow a blood test, a 19
"physical intrusion beneath [his] skin and into his veins to
obtain a sample of his blood for use as evidence in a criminal
investigation. Such an invasion of bodily integrity implicates
an individual's 'most personal and deep-rooted expectations of
privacy.'" McNeely, 569 U.S. at 148, quoting Winston, 470 U.S.
at 760. Indeed, at one point the form provides, "If you decide
to take the test and complete it, you will have a comparison
blood test within a reasonable period of time at your own
expense," which might be understood to be contrasting a "blood
test" with the kind of "chemical test" for which the form was
seeking consent.
Because it is ambiguous what the defendant was agreeing to
by signing the form, the evidence cannot suffice to sustain the
Commonwealth's burden of demonstrating actual consent to a blood
test. Cf. Commonwealth v. Rogers, 444 Mass. 234, 239 (2005)
("[T]he ambiguity of both the officers' and [the occupant's]
words and actions makes it difficult to discern whether there
was actual consent in this case"). To the extent the
defendant's conduct in not objecting at the time of the blood
draw is relevant, the temporal proximity between the signature
and the blood draw is not clear from the evidence, nor is there
any evidence the nurse who took the blood indicated in any way
that it was for the police, rather than for medical purposes. 20
On this record, it cannot make up for the weakness in the
Commonwealth's evidence of consent to the blood test.
The order denying the motion to suppress is reversed.
So ordered.