Commonwealth v. Bohigian: Is There a Warrant Exception to the Statutory Consent Requirement for Blood Draws?

On February 10, 2020, the Supreme Judicial Court (SJC) will hear oral argument on whether or not there is a search warrant exception to the statutory requirement that there be consent prior to a blood draw in cases of operating under the influence. Under Massachusetts law, G.L. c. 90, § 24(1)(e) and (f), consent is required for a blood draw at the request of law enforcement in order for the evidence to be admissible in court and an individual who is under arrest or suspected of operating under the influence has a statutory right to refuse a blood or breath test. However, does obtaining a search warrant for a forcible blood draw render the statute inapplicable?

This issue is presented in Commonwealth v. Bohigian, a case stemming from a series of accidents that occurred on March 23, 2014. The first accident involved a female driver, the victim, who lost control of her SUV crashing into the guardrail of an onramp. Her vehicle stopped perpendicular to the road and blocked most of the road. She subsequently exited her vehicle and stood near the driver’s side rear window, on the far side from oncoming traffic. The defendant, Bohigian, entered the onramp and struck the SUV, which then hit the victim and threw her in front of Bohigian’s vehicle. Bohigian then struck the victim, resulting in life-threatening injuries. During the accident, Bohigian also sustained injuries when he struck his head on the windshield.

Both Bohigian and the victim were transported to the hospital for treatment. Bohigian was observed to have a closed-head injury. He refused to allow the hospital to obtain a blood sample for medical treatment. On suspicion that Bohigian was under the influence, law enforcement obtained a warrant for a forcible blood draw and presented it to hospital staff. Bohigian subsequently was handcuffed to the bed, held down, and his blood was forcibly drawn without his consent. Testing by law enforcement indicated the presence of alcohol in Bohigian’s blood and estimated that at the time of the accident his BAC was between .16 and .29.

Bohigian filed a motion to suppress the blood draw and its results on the basis that the warrant was issued without him being afforded an adversarial hearing. In denying the motion, the judge held that such a hearing was not required because there was both probable cause and an exigent circumstance. Bohigian also filed a motion in limine to suppress the blood test result because the blood draw occurred without his consent and at the direction of law enforcement, and thus it was inadmissible at trial under the statute. If the motion was allowed, the evidence of the Bohigian’s BAC could not have been used against him at trial. The court, however, did not agree with the defendant’s position and instead denied the motion on the grounds that the search warrant was based on probable cause, and thus the statutory consent requirement was not implicated. The court found that the search warrant was not executed “at the direction of the police” because it was issued by the court, and therefore it was admissible. Bohigian was found guilty on all charges. He now brings this issue, along with two related issues, before the SJC.

The SJC has never considered whether there is a warrant exception to the consent requirement in the statute. Bohigian argues that the legislative intent behind the statute is to prevent this exact type of forced blood draw at the hands of law enforcement. Additionally, Bohigian advances the claim that granting the warrant for the blood draw in the first place represents judicial overreach into legislative powers. To counter these arguments, the government asserts that there is no constitutional right to refuse a blood test, and the government is permitted to compel production of a blood sample.

The impact of a decision in this case could be far reaching, not just for OUI litigation but for the citizen’s right to privacy in bodily integrity.