Commonwealth v. Bohigian: No Warrant Exception to the Statutory Consent Requirement For Blood Draws

Without consent, citizens are protected from blood draws, even with a warrant

On November 13, 2020, the Massachusetts Supreme Judicial Court (SJC) came down with its decision in Commonwealth v. Bohigian, which addresses questions surrounding law enforcement blood testing in operating under the influence cases. In Bohigian, the question presented was whether evidence obtained from a blood test on an individual who “exhibited symptoms of a concussion” can be admitted in an OUI trial against that individual, despite the consent requirement in G.L. c. 90, § 24(1)(e) and (f) if a warrant to conduct the blood test was acquired by the police. The Commonwealth argued that while G.L. c. 90, § 24(1)(e) forbids the admission of breath test results in an OUI trial when those results were obtained at the direction of a police officer without the consent of the party subject to the tests, searches conducted pursuant to warrant do not require consent from the party to be searched because it is a search conducted pursuant to judicial authority, not police direction.

The SJC rejected this argument holding that “[i]t 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” and “the plain statutory language that creates a blanket prohibition against blood draws without consent in the context of OUI prosecutions”, even when the searches are conducted pursuant to a warrant. Relying on the Massachusetts Court of Appeals’ decision in Commonwealth v. Dennis, a case successfully argued by our firm, the SJC held 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.”

G.L. c. 90, § 24(1)(e) provides that chemical tests “made by or at the direction of a police officer” are inadmissible unless the test “was made with the consent of the defendant.” G.L. c. 90, § 24(1)(f)(1) provides that “whoever operates a motor vehicle upon any way or in any place to which the public has right to access. . . 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. . . .”

The tension between these subparts of chapter 90 was first explored in Commonwealth v. Davidson. In Davidson, the SJC held that there was no Constitutional right to refuse a blood test in an OUI case under Schmerber v. California. As the right to refuse the blood test was statutory and not Constitutional, the SJC applied “the traditional indicia of waiver.” Under the traditional indicia of waiver approach, the SJC held that a defendant could consent to a chemical test by a number of means, including inaction.

However, in 2019, the question of what constitutes consent under Chapter 90 was once again before the Court of Appeals in Commonwealth v. Dennis. In Dennis, the police had taken a sample of the defendant’s blood while he was unconscious. The Commonwealth argued, in reliance on Davidson, that the defendant had consented to the blood test as he failed to object to it being taken. The Court of Appeals rejected this argument holding that the traditional indicia of waiver did not apply in the context of chemical test refusal because there was a Constitutional right to refuse chemical tests when suspected of OUI. In this decision, the Court of Appeals relied on three cases interpreting Schmerber that limited that case’s holding to instances where there is an exigency beyond the mere natural metabolization of alcohol in the bloodstream. As there is generally a constitutional right to refuse a blood test, consent to the test must satisfy the Fourth Amendment rather than the traditional indicia of waiver. Under the Fourth Amendment, to consent, a chemical test must be voluntary, thereby requiring the “intentional relinquishment” of a “known right.”

The SJC accepted the Court of Appeals’ finding that consent is, beyond the merely implied consent provided in G.L. c. 90, § 24(1)(f)(1), is needed for a chemical test to be admissible against a defendant. The SJC noted that this requirement captures the legislative intent in passing G.L. c. 90, § 24 as the statute had been redrafted seven times post-Davidson and that the legislature had not changed the sections concerning consent in any of these later versions. As the SJC “presume[s] Legislature is aware of [their] prior decisions” and the legislature had not changed 90, sec. 24 after Davidson or Dennis, the SJC presumed that the legislature intended that blood tests should only be admitted when they were conducted with consent. The SJC held that this even applied to searches conducted pursuant to a warrant as G.L. c. 90, § 24 “require[s] consent for OUI blood draws, and neither makes an exception for, or even mentions, warrants.” The SJC also noted that the legislature had valid safety concerns in prohibiting chemical tests without consent. Blood draws present medical risks. Those risks are compounded when an individual is subjected to one against their will. Their conduct can put themselves, police, and medical workers tasked with drawing their blood at risk of injury and blood-borne disease. Finally, the SJC noted that Rhode Island, Alaska, and Georgia have statutes with language similar to that in G.L. c. 90, § 24(1)(e) and (f). Courts in these states have interpreted language similar to that language at issue in Bohigian to forbid the admission of breath or blood test results without consent even when a warrant has been issued.

The dissent disagreed with the majority's holding for three reasons. First, the dissent read the prohibition of consentless blood tests to only apply to warrantless searches as G.L. c. 90, § 24(1)(e) specifically prohibits chemical tests “made by or at the direction of a police officer.” In the dissent's view, warrants are issued subject to judicial authority and, as such, searches pursuant to warrants are not made by or at the discretion of a police officer. Next, the dissent held that “[t]he court's interpretation of subsections (e) and (f) (1) impermissibly frustrates the public safety purpose of the larger statutory scheme. . . .” as it improperly interferes with the ability 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.” In the view of the dissent, this decision interferes with the ability to protect the public because the defendant alone is to decide whether evidence necessary to the prosecution comes to light. Finally, the dissent notes that some states with language similar to G.L. c. 90, sec. 24 allow for consentless chemical tests so long as they are conducted pursuant to a warrant.

The majority in Bohigian affirmed precedent from the Massachusetts Court of Appeals and makes it clear that in Massachusetts, even where law enforcement obtains a valid warrant, results from blood tests obtained without consent are inadmissible as evidence in an OUI trial.

If you have been charged with operating under the influence and the police took your blood without your consent, it is imperative that you speak with an experienced attorney to challenge your case. Contact the Law Offices of Joseph D. Bernard today for a free consultation.