On November 18, 2019, the Massachusetts Appeals Court released its decision in our case, Commonwealth v. Dennis, announcing that the court agreed with the defense that the blood test obtained by the government should have been excluded from evidence! In this landmark decision, the Court agreed with Attorney Erica Bruno that Massachusetts case law did not align with the recent rulings from the Supreme Court of the United States. As a result, the Court adopted Attorney Bruno’s reasoning and held that because “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 the purposes of the Fourth Amendment” consent to a blood test requested by the police must be analyzed under the Fourth Amendment Standard of “actual, voluntary consent” under the “totality of the circumstances.” This holding created a shift in the law, as Massachusetts had previously held that a motorist did not have any “constitutional right to refuse a blood test…” Massachusetts has previously used a lesser standard of analysis for consent to a blood test which was mere acquiescence, “verbal agreement to undergo, lack of objection to, or cooperation in the performance of, the blood testing.”
The Massachusetts Appeals Court agreed with Attorney Bruno that the Supreme Court of the United States has made clear in Birchfield v. North Dakota and Missouri v. McNeely that a motorist does in fact have a constitutional right to refuse a blood test, thereby triggering the need to analyze any such consent under the higher constitutional standard. The Massachusetts Appeals Court further agreed with Attorney Bruno that despite the fact that our client agreed to consent to a “chemical test,” the police’s failure to explain that the “chemical test” was in fact a blood test precluded our client’s ability to provide true consent to a blood test. The police officer in this matter read our client a standard Statutory Rights and Consent form for requesting our client to submit to a “chemical test” while he was being treated in a hospital after an accident. This form is read to every motorist arrested for OUI in Massachusetts. The form ambiguously requests a motorist to submit to a “chemical test” to determine their blood alcohol concentration. It does not specify whether the “chemical test” is a breath test, blood test, or any other kind of test. At no point in this case did the officer clarify that she was requesting a blood test. Nor did the nurse who drew his blood indicate that the blood draw was not for medical purposes, but rather criminal prosecution. Due to the ambiguity surrounding the officer’s request and our client’s response, the Appeals Court agreed with Attorney Bruno that our client could not have given lawful consent to a blood test in the totality of these circumstances.
Congratulations Attorney Bruno!