Commonwealth v. Moreau, Supreme Judicial Court 2022

This case determined the admissibility of blood drawn from a defendant arrested for Operating Under the Influence of Alcohol.  The key takeaway from this case was that the police cannot obtain blood results without the defendant’s consent.  That is, even though the defendant consented to have his blood drawn by the hospital staff, that did not give the police permission to obtain the blood results subsequently through a court order. 

Here, the defendant was arrested for OUI.  He was involved in a motor vehicle accident, where he collided with a tree.  He admitted to driving when the police found him alone in the driver’s seat. He was unsteady on his feet, had glassy and blood eyes, slurred speech, and smelled of a strong odor of an alcoholic beverage. He was transported to a nearby hospital, where the state police handed hospital staff a “preservation of evidence” letter, directing them to save any blood drawn.  The State Police obtained the BAC results from his blood draw at the hospital by executing a search warrant for the defendant’s blood.  The blood was then analyzed by the state police lab. Police never requested consent from the defendant to test his blood. 

As a result, counsel for the defendant filed a motion to suppress the BAC results that the state lab provided to the District Attorney in preparation for trial.  The judge denied the motion, and the defendant’s attorney filed an emergency appeal.  The sitting justice in the emergency session allowed the motion and referred it to the full panel of the SJC for review.  The sole issue before the SJC was whether, pursuant to G.L. c. 90, s. 24(1)( e ), a BAC test done by, or at the direction of, police without the consent of the defendant was admissible if the blood was first drawn by a third party (here, the hospital).

Section 24(1)(e) details the conditions where "evidence of the percentage, by weight, of alcohol in the defendant's blood at the time of the alleged offense, as shown by chemical test or analysis of his blood ... shall be admissible" in prosecutions for operating a motor vehicle while under the influence of alcohol pursuant § 24(1)(a). The statute sets forth three distinct prerequisites to the admissibility of BAC evidence in a prosecution for OUI under § 24(1)(a), the first of which is that a defendant must consent to a "chemical test or analysis" of his blood when "such test or analysis is made by or at the direction of a police officer.

The Court relied on a prior decision, Commonwealth v. Bohigian, which stated that the defendant must consent to any blood or breath testing done by or at the direction of a police officer if the Commonwealth intends to admit that evidence at trial. This included blood draws.  The defendant correctly highlighted Bohigian in their argument to the court. The Commonwealth unsuccessfully argued that consent is not required when the testing is done by the hospital first, and the police later obtain a warrant for it.  The Court rejected this argument, stating that it is in contrast to the plain language of the statute.  The Court reminded the Commonwealth that it was not their place to read into the statute something that the Legislature “did not see fit to put there.”

The Court further went on to point out that the statute discussed “blood analysis” rather than consent to a blood draw.  The Court interpreted this to mean that the Legislature regarded a “chemical test or analysis” as different from a blood draw.  In a nutshell the holding of this case reads “Where a "chemical test or analysis" of the defendant's blood is "made by or at the direction of a police officer," including where the blood is first withdrawn independently by a third party, the defendant's consent is required for the resulting BAC evidence to be admissible in a prosecution under § 24(1)(a).”

The Commonwealth finally argued that, even if the conditions are not met to admit the BAC results, the remedy is not suppression of the evidence because the exclusionary rule is not triggered. The exclusionary rule prohibits any use of illegally obtained evidence at a criminal trial (here, blood alcohol content evidence at an OUI trial). The Court ruled that suppression is in fact the appropriate remedy because of the noncompliance with the statute, even though technically the noncompliance here was not “illegal.” The Court noted that although this makes it more difficult to prosecute OUI cases where BAC evidence may be the best evidence, that is for the legislature to examine and change if they deem necessary. The Court noted that the refusal of a test results in an automatic license suspension, so the legislature clearly contemplated this potential scenario.