Com. v. Davidson, 87-246

• Decision Date: 03 January 1990
• Docket Number: No. 87-246,87-246
• Citation: 545 N.E.2d 55,27 Mass.App.Ct. 846
• Parties: COMMONWEALTH v. Kenneth DAVIDSON.
• Court: Appeals Court of Massachusetts

Page 55

545 N.E.2d 55

27 Mass.App.Ct. 846

COMMONWEALTH v. Kenneth DAVIDSON.

No. 87-246.

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 11, 1989.

Decided Oct. 24, 1989.

Further Appellate Review Denied Jan. 3, 1990.

Patricia A. O'Neill, Committee for Public Counsel Services, for defendant.

Emily J. Gould, Asst. Dist. Atty., for Com.

Before ARMSTRONG, CUTTER and FINE, JJ.

ARMSTRONG, Justice.

Following the deaths of two persons whose car was struck from the rear by the defendant's car, the defendant was convicted of two counts of manslaughter and two counts of vehicular homicide. There was abundant evidence that the defendant was intoxicated--that he had been drinking in the hours before the accident, that his car was travelling erratically and at high speed, that his breath smelled strongly of alcohol, that his voice was "thick-tongued," his eyes glassy, and his gait wobbly, that he failed a field sobriety test, and that his breathalyzer readings (.25 and .21) and blood test reading (.22) were substantially in excess of the statutory standard (.10) for a presumption that he was under the influence of intoxicating liquor. G.L. c. 90, § 24(1)(e ), as amended through St.1980, c. 383, § 1. ¹

Before trial, in response to a motion to suppress various statements the defendant made to police officers at the accident scene and during booking, the judge excluded all such statements based on "overwhelming evidence of [the] defendant's high degree of intoxication," from which the judge concluded that the "statements were not voluntary and the product of a rational intellect and a free will and that the defendant was too intoxicated to have voluntarily, knowingly and intelligently waived his Miranda rights."

At trial the defendant objected to the admission in evidence of the breathalyzer and blood test results on the ground that the defendant had not been informed prior to electing to take the tests that the accident victims had died. ² It was conceded, however, that the police officers did tell the defendant that he was being charged with operating under the influence of intoxicating liquor, and it is inferable that the defendant must have known from the crushed condition of the victims' car that they at least suffered serious bodily injury. ³ The judge overruled the objection, and this ruling is the principal claim of error.

The defendant casts his contention on appeal somewhat differently from his objection below: there, he focused on the officers' failure to inform him of the full seriousness of the charges; on appeal, he focuses on an alleged contradiction between the pretrial finding that he was too intoxicated to waive his Miranda rights and the judge's implied finding during the trial that he had given his consent to the breathalyzer and blood tests, as required by G.L. c. 90, § 24(1)(e ) and (f ). While arguably different (as to which see Commonwealth v. Owens, 402 Mass. 639, 641, 524 N.E.2d 387 [1988] ), we think the defendant's objection at trial and his argument here are merely different facets of the same underlying contention: namely, the defendant cannot be deemed to have consented to the breathalyzer and blood tests because the Commonwealth cannot show that any choice he made that evening was knowing, voluntary, and intelligent.

Where there is probable cause to believe that a defendant has been operating a vehicle while under the influence of intoxicating liquor, the defendant has no constitutional right to refuse a blood test or a breathalyzer test. Schmerber v. California, 384 U.S. 757, 770-772, 86 S.Ct. 1826, 1835-1837, 16 L.Ed.2d 908 (1966). Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 109 S.Ct. 1402, 1417-1418, 103 L.Ed.2d 639 (1989). Burnett v. Anchorage, 806 F.2d 1447, 1449-1450 (9th Cir.1986). Commonwealth v. Angivoni, 383 Mass. 30, 32, 417 N.E.2d 422 (1981). The right of refusal he does have stems from the statute, which requires that a test not be conducted without his consent. Typically, where a right is conferred by statute and "is not a fundamental constitutional right, we apply traditional indicia of waiver of rights." Commonwealth v. Carr, 3 Mass.App.Ct. 654, 656, 338 N.E.2d 844 (1975), citing Commonwealth v. Davis, 367 Mass. 422, 423-424, 326 N.E.2d 17 (1975). To the same effect, see Barry v. Commonwealth, 390 Mass. 285, 296, 455 N.E.2d 437 (1983), Commonwealth v. Farris, 390 Mass. 300, 305, 455 N.E.2d 433 (1983), and Commonwealth v. Deeran, 397 Mass. 136, 140-142, 490 N.E.2d 412 (1986). See also the discussion in Spence v. Reeder, 382 Mass. 398, 410-412, 416 N.E.2d 914 (1981). Traditional indicia include waiver by inaction, Commonwealth v. Davis, supra 367 Mass. at 423, 326 N.E.2d 17; by express agreement, Barry v. Commonwealth, supra 390 Mass. at 298, 455 N.E.2d 437; by untimely motion, Commonwealth v. Deeran, supra 397 Mass. at 140-141, 490 N.E.2d 412; and by failure to object, Commonwealth v. Carr, supra 3 Mass.App.Ct. 654, at 656-657, 338 N.E.2d 844. Thus, "[t]he 'knowing' and 'intelligent' standard ... applies only to a defendant's 'consent' to the actual relinquishment of [a] constitutional right." Commonwealth v. Deeran, supra 397 Mass. at 141, 490 N.E.2d 412.

It is apparent from context that G.L. c. 90, § 24(1)(e ) and (f ), do not contemplate voluntary consent in the constitutional sense. A drunk driving suspect who refuses a test after being advised of the automatic 120-day suspension of his driver's license for refusing is subjected to coercive pressure not normally regarded as consistent with voluntary waiver of constitutional rights. The statute, moreover, contemplates the admission in evidence of breathalyzer test results that establish presumptively the inebriated condition of the suspect or, at least, the impairment of his faculties. The purpose of the provisions regarding actual consent (as opposed to the implied consent established by the first sentence of § 24[f ] ) seems to have been to avoid forced testing--i.e., testing by means of physical compulsion--that was thought after Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), to be of dubious constitutional validity. See the discussion in State v. Newton, 291 Or. 788, 791-798, 636 P.2d 393 (1981). See also Lerblance, Implied Consent to Intoxication Tests: A Flawed Concept, 53 St. John's L.Rev. 39, 47 n. 22 (1978).

"Implied consent" statutes typically forbid testing where the suspect refuses or withholds his consent at the scene. ⁴ So far as we have found, no State court has interpreted its statute to require consent or waiver in accordance with the "voluntary, knowing, and intelligent" standard applicable to waiver of important constitutional rights. Decisions suggesting the contrary are numerous. See Bush v. Bright, 264 Cal.App.2d 788, 793, 71 Cal.Rptr. 123 (1968); People v. Doherty, 144 Ill.App.3d 400, 403-404, 98 Ill.Dec. 811, 494 N.E.2d 933 (1986); Corum v. McNeill, 716 S.W.2d 915, 917 (Mo.App.1986); Jensen v. Jensen, 222 Neb. 23, 26-27, 382 N.W.2d 9 (1986); Hoban v. Rice, 25 Ohio St.2d 111, 118-119, 267 N.E.2d 311 (1971); Department of Motor Vehicles v. McElwain, 80 Wash.2d 624, 628-629, 496 P.2d 963 (1972). See generally 3 Erwin, Defense of Drunk Driving Cases § 33.06 (3d ed. 1988) and cases cited therein. See also State v. Taylor, 12 Conn.App. 427, 433-434, 531...