Commonwealth v. Bohigian

• Decision Date: 13 November 2020
• Docket Number: SJC-12858
• Parties: COMMONWEALTH v. Charles F. BOHIGIAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

486 Mass. 209

157 N.E.3d 59

COMMONWEALTH

v.Charles F. BOHIGIAN.

SJC-12858

Supreme Judicial Court of Massachusetts, Worcester..

Argued February 10, 2020

Decided November 13, 2020

Erin R. Opperman for the defendant.

Donna-Marie Haran, Assistant District Attorney, for the Commonwealth.

Jin-Ho King, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.¹

BUDD, J.

The defendant, Charles Bohigian, was convicted of operating a motor vehicle while under the influence of alcohol (OUI), pursuant to G. L. c. 90, § 24 (1) (a ) (1) ; operating a motor vehicle negligently so as to endanger, pursuant to G. L. c. 90, § 24 (2) (a ) ; and OUI causing serious bodily injury, pursuant to G. L. c. 90, § 24L (2), in connection with an automobile accident.² The defendant also was convicted of misleading an investigator pursuant to G. L. c. 268, § 13B, for statements he made at the scene. He appealed from his convictions, and we subsequently granted his application for direct appellate review. He argues that the evidence of his blood alcohol level was admitted improperly, as were the statements that formed the basis of the charge of misleading an investigator.

We agree and conclude that the errors require that the defendant's convictions be vacated and the matter remanded to the District Court for a retrial.³

Background. We summarize the relevant facts from the record. At around midnight on March 23, 2014, Katrina McCarty lost control of her sport utility vehicle (SUV) as she traveled on a highway on-ramp, crashing into the guardrail of the ramp such that her SUV came to rest perpendicular to the roadway, blocking approximately two-thirds of it. Soon thereafter, the defendant crashed into the stationary SUV, rotating it and causing it to hit McCarty, who had been standing on the side of the road next to her vehicle. McCarty sustained serious injuries after being thrown into the path of the defendant's vehicle, and then being dragged underneath the vehicle for over 200 feet as the defendant continued driving.

When State police troopers arrived at the scene, they noted that the defendant had an injury to his forehead and was unsteady on his feet. In addition, his eyes appeared glassy and bloodshot, his speech was slurred, and he had a heavy smell of alcohol on his breath. The defendant told the troopers that "another vehicle had come out of nowhere and run that lady over," and that the operator of that other vehicle told him to "keep his mouth shut."

At the hospital, the treating nurse observed that the defendant exhibited symptoms of a concussion. After the defendant refused to consent to a blood draw, one of the troopers who had responded to the scene applied for, and procured, a search warrant to obtain a blood sample from the defendant as part of the trooper's investigation into whether the defendant was driving while under the influence of alcohol.

Upon being presented with the signed warrant, the defendant repeated his objection to the blood draw. Subsequently, the defendant's arms and legs were restrained by troopers as the nurse drew two vials of his blood at the direction of one of the troopers. The blood was analyzed, and it was determined that the alcohol content was .135 percent at the time the blood was drawn. A chemist determined that the defendant's blood alcohol level would have been between .16 and .26 at the time of the accident.⁴

Discussion. 1. Blood alcohol content evidence. a. Statutory framework. It is constitutional to draw a person's blood without consent as long as the law enforcement officer has procured a warrant or exigent circumstances make a warrant impracticable. See Missouri v. McNeely, 569 U.S. 141, 148, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), citing Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ; Commonwealth v. Angivoni, 383 Mass. 30, 32, 417 N.E.2d 422 (1981). However, the Legislature has created a statutory scheme specifically to address the testing of blood alcohol content (BAC) in connection with prosecutions for OUI, including the drawing of blood.

General Laws c. 90, § 24 (1) (e ), works in tandem with G. L. c. 90, § 24 (1) (f ) (1). Section 24 (1) (e ) requires that where a test of a defendant's breath or blood to determine alcohol content is made by or at the direction of a police officer, it must be done with the defendant's consent in order for the results to be admissible in a prosecution for OUI under G. L. c. 90, § 24 (1) (a ).⁵ Section 24 (1) (f ) (1), known as the "implied consent" statute, provides that, by driving on public roads, all drivers give consent to submit to a BAC test if arrested for OUI. However, the paragraph goes on to state that "[i]f the person arrested refuses to submit to such test or analysis ... no such test or analysis shall be made."⁶ G. L. c. 90, § 24 (1) (f ) (1). That is, the implied consent that attaches when a driver uses public roadways may be withdrawn, and without actual consent no test is to be done. If the driver refuses the test, he or she is subject to losing his or her license for at least 180 days.⁷ Id. Together the two subsections provide that, if an arrestee consents to a BAC test, the results are presumptively admissible at trial for a charge of OUI under § 24 (1) (a ). If the arrestee does not consent, however, no test is performed, and the arrestee's license is suspended for at least six months.

The defendant claims that because he was not afforded these statutory protections, the blood draw was unlawful and the BAC test results were inadmissible at trial. The Commonwealth argues that the blood test results properly were admitted because obtaining a warrant for the blood is an alternative to obtaining consent and, thus, neither § 24 (1) (e ) nor § 24 (1) (f ) (1) applies. We agree with the defendant.

The Commonwealth's suggested interpretation, endorsed by the dissent, ignores the plain statutory language that creates a blanket prohibition against blood draws without consent in the context of OUI prosecutions. See Commonwealth v. Dalton, 467 Mass. 555, 557, 5 N.E.3d 1206 (2014), quoting Commonwealth v. Boe, 456 Mass. 337, 347, 924 N.E.2d 239 (2010) ("[t]he meaning of a statute must, in the first instance, be sought in language in which the act is framed, and if that is plain, ... the sole function of the courts is to enforce it according to its terms"). Both subsections require consent for OUI blood draws, and neither makes an exception for, or even mentions, warrants.

Pointing to two particular phrases in the provisions, the dissent asserts that we have misread the statutory language.⁸ First, § 24 (1) (e ) allows for the admission of BAC evidence in an OUI prosecution unless the test was performed without the consent of the defendant "at the direction of a police officer." The dissent concludes, as did the motion judge, that the BAC evidence was admissible because the defendant's blood was drawn pursuant to a warrant issued by a judge rather than "at the direction of a police officer." Contrary to the view of the dissent, we believe that the limited protection provided by § 24 (1) (e ) was available to the defendant; however, in his case, it made no difference. Section 24 (1) (e ) applies only to prosecutions under § 24 (1) (a ), which prohibits simple OUI. Had the defendant only been charged under § 24 (1) (a ), he would have been able to argue that the BAC evidence was inadmissible because his blood was taken without his consent "at the direction of a police officer."⁹

G. L. c. 90, § 24 (1) (e ).

However, as the defendant additionally was charged with a violation of § 24L (OUI causing serious bodily injury), § 24 (1) (e ) had no bearing at all on the admissibility of the BAC evidence with regard to this more serious charge.¹⁰

It is instead § 24 (1) (f ) (1) that is operative here.¹¹ Quite apart from § 24 (1) (e ), § 24 (1) (f ) (1) flatly and unambiguously prohibits blood draws without consent for the purposes of analyzing BAC, regardless of who directs it.¹² See G. L. c. 90, § 24 (1) (f ) (1).

The Appeals Court has analyzed the consent requirements of these subsections on multiple occasions and, as recently as last year, reiterated that "in this Commonwealth, a requirement of consent is imposed by statute even when, because there is probable cause and exigent circumstances, one is not imposed by the Federal Constitution." Commonwealth v. Dennis, 96 Mass. App. Ct. 528, 532, 135 N.E.3d 1070 (2019). Decades prior to Dennis's publication, the Appeals Court concluded, correctly in our view, that although an individual in the defendant's position has no constitutional right to refuse a BAC or breathalyzer test, "[t]he right of refusal he does have stems from [ § 24 (1) (f ) (1) ], which requires that a test not be conducted without his consent" (emphasis added).¹³

Commonwealth v. Davidson, 27 Mass. App. Ct. 846, 848, 545 N.E.2d 55 (1989). Thus, the Appeals Court has made clear 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. This court similarly has adopted this view. See Opinion of the Justices, 412 Mass. 1201, 1208 n.6, 591 N.E.2d 1073 (1992), citing Davidson, supra at 849, 545 N.E.2d 55 (actual consent requirement in § 24 [1] [e ] and [1] [f ] [1] "reflects a legislative intent to avoid forced testing").¹⁴

Following the Appeals Court's holding in Davidson, the Legislature amended § 24 (1) (e ) and (1) (f ) (1) on seven separate occasions, in 1994, 1995, 1996, 2002, 2003, 2005, and 2012. Each time, the language requiring consent -- i.e., "provided ... that if such test was made by or at the direction of a police officer, it was made with the consent of the defendant" in § 24 (1) (e ), and "[i]f the...