Defending Against a Blood Test Result

If you are arrested for OUI/DUI in Massachusetts, and are taken to the hospital due to an accident or medical issue, the police will likely ask you to submit to a blood test. The police may make this request pursuant to the implied consent law. The Massachusetts implied consent law, G.L. c. 90, § 24(1)(f)(1), requires any person who operates a motor vehicle to submit to a “chemical test” to determine their blood alcohol content (BAC) if they are arrested for operating under the influence. In Massachusetts, the police can ask you to submit to either a breath test or a blood test to determine your BAC.

In some cases involving an accident, the police do not make an arrest and instead issue a citation for the charge of operating under the influence. If you are not under arrest, the police do not have a right under the implied consent law to request a sample of your blood for testing. However, the hospital may take a blood sample for medical treatment and test for an ethanol level.

In many instances involving an accident, the police will petition the Registry of Motor Vehicles (RMV) to impose an immediate threat license suspension. This often happens due to the length of time it takes to perform an analysis on a blood sample compared to the immediate results produced from a breath test. An immediate threat license suspension is an indefinite suspension until you are able to show that you are not a threat to the public safety of drivers on the road.

There are many potential issues with blood testing that should be investigated which may lead to the exclusion of the blood test result all together. There are constitutional protections implicated for any person who is asked by the police to undergo a blood test. Moreover, depending on the type of blood analysis performed, the scientific methodology may not be forensically reliable.

Blood Test Requested by Law Enforcement

Fourth Amendment Expectation of Privacy in Your Blood

The Supreme Court of the United States has repeatedly held that a motorist has a reasonable expectation of privacy in their blood, and therefore they have a fundamental constitutional right to refuse to consent to a government requested blood test. The Fourth Amendment of the United States Constitution guarantees the right to be free from unreasonable searches and seizures. The piercing of the skin to obtain a blood sample is considered a search and seizure, and there is an established constitutional right to privacy in the blood. 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).

Exceptions to the Warrant Requirement

Because you have a Fourth Amendment constitutional protection in your blood, in order to obtain a blood sample, the police must either obtain a warrant or meet one of the exceptions to the warrant requirement. There are multiple different exceptions to the warrant requirement, including providing your consent to a blood test and instances when there are exigent or emergency circumstances.

Should you choose to consent to a blood test at the request of law enforcement, that consent must be freely and voluntarily given. The burden is on the government to show that consent was voluntary. Voluntariness will be determined by looking at all of the circumstances involved in your case. Commonwealth v. Dennis, 96 Mass. App.Ct. 528 (2019).

The the Bernard Defense Team represented the defendant in the Dennis case, with Attorney Bruno providing oral argument to a panel of three justices at the Massachusetts Appeals Court. Not only did she successfully convince the panel that Massachusetts had been evaluating a defendant’s consent under the wrong standard of law, the panel agreed with her that in order for consent to be valid, the police must explicitly inform the motorist that the type of test they are requesting is a blood test. A police officer’s request to submit to a “chemical test” as written in a commonly used Statutory Rights and Consent Form is no longer enough for consent to be valid. As a result of this case, Attorney Bruno’s work changed the law to provide more protections to defendants in Massachusetts.

Exigency, the other common exception to the warrant requirement for blood testing, exists when, based upon the totality of the circumstances, an officer might reasonably have believed that they were confronted with an emergency, and that during the time it would take to obtain a warrant, important evidence might be destroyed. The Supreme Court of the United States has ruled that the natural dissipation of alcohol in the blood does not justify a blanket exception to the warrant requirement. Missouri v. McNeely, 569 U.S. 161 (2013). The Court in Dennis held that although exigency is an exception to the Fourth Amendment warrant requirement, Massachusetts law still requires valid consent in order to take a blood sample. However, in this context, the standard to find valid consent is different because the right of refusal is no longer a constitutional right, but a right that comes from a statute. Therefore, a Court is to evaluate the traditional indica of consent, including whether there was verbal agreement to undergo, lack of objection to, or cooperation in the performance of the blood test. Commonwealth v. Dennis, 96 Mass. App.Ct. 528 (2019).


In some instances, the police will apply for a warrant to obtain a sample of your blood, or to obtain a blood sample that was taken by the hospital for medical treatment. Before the police apply for a warrant, they may request that the hospital preserve some of the blood samples for their own testing purposes and use the results against you for OUI. This may present a fourth amendment violation of your right to be free from unreasonable searches and seizures if the hospital took more blood than medically necessary at the direction of law enforcement. It is imperative that a defense attorney examine this issue as it may lead to the exclusion of a blood test result from evidence.

Requirements for Admissibility as Evidence

If you submit to a blood test at the request of law enforcement, a police officer must follow the procedures set forth by G.L. c. 90, § 24(1)(e). The law requires that a blood test be made by or at the direction of a police officer, it was made with the consent of the defendant, the results of the test are made available upon the defendant’s request, and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have an independent blood test or analysis made by a person or physician of their own choosing. If you choose to submit to a blood test, a blood sample can only be drawn by a physician, registered nurse or certified medical technician.

The outcome was what I was hoping for and could not be more pleased.

A blood analysis performed by the state police crime laboratory is admissible in an OUI case pursuant to G.L. c. 90, § 24(1)(e). Generally, at the state police crime laboratory, blood is analyzed by a gas chromatograph. A gas chromatograph measures whole blood rather than serum or plasma. A certificate, signed and sworn to by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by the chemist of the percentage of alcohol in the blood sample shall be prima facie evidence of the percentage of alcohol in the blood. The burden is on the government, however, to show that the analysis was performed in compliance with regulations set forth in 501 CMR 2.00.

Blood alcohol testing must be in compliance with regulations promulgated by the Office of Alcohol Testing (OAT) as well as the policies and protocols of the state crime laboratory where the testing takes place. Testing must be completed by a blood test analyst (BTA), and BTAs must be certified pursuant to 501 CMR 2.18. Adherence to these regulations, policies and procedures is required for blood test evidence to be admissible against you.

Blood Test for Medical Treatment

If you were involved in a motor vehicle accident and brought to the hospital, you may have had your blood drawn by hospital staff for medical treatment. Hospitals often take blood samples and conduct toxicology screens for alcohol or drugs, as this information plays an important role in what course of treatment you are provided, all of which is documented in your medical records. Because the hospital is generally not acting at the direction of law enforcement, this type of blood testing does not trigger the same Fourth Amendment protections as if a police officer had requested a blood sample. The government is legally able to request your medical records so long as it meets the standard set forth in Commonwealth v. Dwyer, 448 Mass. 122 (2006). A prosecutor may attempt to use the results of the hospital blood test against you. There are, however, important issues regarding hospital blood testing that could impact your case.

Enzymatic Testing

In the hospital setting, enzymatic testing is generally utilized to detect the presence of ethanol or alcohol in the blood. Enzymatic testing is a screening tool used to make medical treatment determinations quickly. The results of this test may be obtained by a prosecutor to determine your blood alcohol percentage in order to pursue a per se violation of G.L. c. 90, § 24.

Although the enzymatic testing of a blood sample takes place in a hospital setting and is used for medical purposes, its intended use by a prosecutor shifts from medical treatment to forensic evidence in criminal prosecution. Because of the serious nature of criminal prosecution, it is imperative that the evidence used to prosecute you meet the standards of and be generally accepted within the forensic scientific community.

Though useful as a preliminary screening tool, enzymatic testing is not intended to quantify how much alcohol is in the blood. Experts agree that the enzymatic testing overstates the amount of alcohol in an individual’s blood. As a qualitative test, it is intended instead to assist medical staff in making immediate decisions regarding medical treatment. Enzymatic testing was never intended to produce an accurate or reliable blood alcohol level. Nor do hospitals perform a forensically necessary confirmatory test to ensure that the results are accurate and precise.

The test measures serum or plasma, which is a material that is extracted from whole blood with chemical additives through a chemical reaction. In other words, an enzymatic test is not a direct measurement of blood alcohol. Moreover, the law imposes penalties for operating under the influence of a 0.08% BAC or greater, which is based upon a unit measurement of whole blood, not a unit measurement of serum or plasma. Thus, in order to admit evidence of the hospital blood test result against you, the prosecutor would be required to obtain an attested to serum or plasma conversion from a Blood Test Analyst at the Office of Alcohol Testing. However, there is no accurate, agreed upon formula to convert serum or plasma into whole blood in the forensic scientific community. Thus, any conversion is unreliable.

The reliability of enzymatic testing is also dependent on the calibration of the machine used to conduct the test. It is necessary to gather records from the hospital regarding the protocols for calibration and maintenance, and verification of compliance with those protocols. It is also important to obtain machine specific information regarding the types of interferrents that are commonly encountered and the ranges of those substances.

Other factors to consider when determining the validity of hospital blood testing include whether the blood draw site was sterilized with alcohol swabs, whether the test tubes contain preservatives or anticoagulants, whether there is evidence of the chain of custody, and who runs and controls the laboratory. The answers to these questions may impact the reliability of the blood test result.

Medical Records as Evidence

There are also problems with the admissibility of medical records as evidence of BAC. Medical records kept by hospitals may be admitted as evidence under G. L. c. 233, § 79 so far as such records relate to the treatment and medical history. The statute allows the admission of the substantive content of hospital records because of the presumption of reliability which attaches to statements relating to treatment and medical history in these records. However, the presumption of reliability is not always present in every set of medical records, particularly when it comes to preliminary screening tests. The Massachusetts Supreme Judicial Court has held that a screening test result that is not confirmed by an independent chemical analysis does not meet this presumption of reliability, and is therefore not admissible under the statute. Commonwealth v. Wall, 469 Mass. 652, 668 (2014)

Setting the Standard
The Massachusetts DUI lawyers at The Law Offices of Joseph D. Bernard P.C. have changed the law to enhance protections for DUI defendants in Massachusetts.

Lawyers Setting the Standards for Blood Testing in Massachusetts

The Massachusetts DUI lawyers at the Bernard Defense Team have changed the law to enhance protections for DUI defendants in Massachusetts. When it comes to a DUI/OUI charge, a clear understanding of blood testing, its flaws, and your constitutional rights is vital to a strong defense. The lawyers at the Bernard Defense Team understand the complexities of blood testing and will continue to hold the government to its burden.