The Massachusetts Appeals Court decision in Commonwealth v. Brian Dennis, 96 Mass. App. Ct. 528 (2019) will likely impact the anticipated decision of the Supreme Judicial Court (SJC) in Commonwealth v. Bohigian, SJC-12858 (Argued Feb. 10, 2020) addressing whether the police must obtain consent prior to effectuating a warrant for a blood test in OUI matters. Attorney Bruno represented the defendant in Dennis on appeal, and successfully suppressed a blood test result that was drawn without the defendant’s valid consent. Attorney Bruno convinced the Court that the defendant was improperly denied constitutional protections against invasions of privacy under the Fourth Amendment that have been repeatedly affirmed by the Supreme Court of the United States. Schmerber v. California, 384 U.S. 757 (1966); Missouri v. McNeely, 569 U.S. 161 (2013); Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016). Short of a warrant, this type of invasive search and seizure -- “the piercing of one’s skin with a needle to draw blood, and the testing of that blood” -- requires either exigency or affirmative consent, neither of which existed in Dennis.
In the landmark ruling in Dennis, the Court set out specific standards that must be met in order for evidence of a blood test to be admissible at trial in an OUI case that may impact the SJC’s ruling in Bohigian. First, the Dennis Court held that a “blood draw requires a warrant or exigent circumstances excusing the failure to obtain a warrant,” and “[w]hen 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.” The Court held that 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. However, “[w]hen there are exigent circumstances so that the Fourth Amendment poses no bar to a compelled blood test, a right to refuse is provided by [the implied consent] statute, and blood may be drawn only with the individual's consent as measured under the ‘traditional indicia’ [of consent]...”
The Dennis Court held that this right of refusal under the implied consent statute provides more protections for Massachusetts defendants than the federal constitution. Like all states, Massachusetts has an implied consent statute that imposes license suspensions for those who are arrested for OUI and refuse to submit to a “chemical test” to determine their blood alcohol concentration (BAC). Under the statute, any person who drives on Massachusetts roadways has implicitly given their consent to submit to a chemical test to determine their blood alcohol concentration if they are arrested for OUI. However, the statute does not permit law enforcement to administer any blood or breath test if it is refused. The Fourth Amendment of the federal constitution permits law enforcement to obtain a warrant to collect a blood sample, which would not require consent of the defendant. However, the Court’s analysis in Dennis implies that even though law enforcement may be able to obtain a warrant, the Massachusetts implied consent law still requires actual consent from the defendant. Thus, the police cannot force a defendant to submit to a blood draw.
The Committee for Public Counsel Services (CPCS) and the Massachusetts Association of Criminal Defense Lawyers (MACDL) have pressed this very argument to the SJC in its amicus brief submitted in support of the defendant in Bohigian. Their argument builds on the Dennis case and asserts that there is no room in the statutory scheme for a warrant to override lack of consent. Moreover, they argue that the Massachusetts implied consent statute is different from most states, as it provides for a right of refusal where others explicitly allow for methods to compel a blood test. Bohigian has far-reaching implications not only for OUI litigation, but for privacy rights for all citizens, as we have recently written about here.
Attorney Bruno’s excellent work not only won our client his appeal, it changed the way courts approach the issue of blood testing in our Massachusetts. The Bohigian decision will be an interesting development in the law in light of the Dennis decision. Attorney Bruno’s compelling argument not only influenced the Court’s decision on appeal, but is shifting the legal landscape in the Commonwealth.