Commonwealth v. Dennis
| Decision Date | 19 November 2019 |
| Docket Number | No. 17-P-1279,17-P-1279 |
| Citation | 135 N.E.3d 1070,96 Mass.App.Ct. 528 |
| Court | Appeals Court of Massachusetts |
| Parties | COMMONWEALTH v. Brian G. DENNIS. |
Erica M. Bruno, for the defendant.
Benjamin Shorey, Assistant District Attorney, for the Commonwealth.
Present: Rubin, Henry, & Wendlandt, JJ.
In this case, we are required to examine the consequences with respect to police practices in the Commonwealth of three relatively recent United States Supreme Court decisions relating to the scope of governmental authority to draw and test the blood of an individual arrested for operating while under the influence of intoxicating liquor. The defendant argues that, because of these decisions, the motion judge erred in denying his motion to suppress. We agree and therefore reverse.
Background. In reviewing the denial of a motion to suppress, we "accept the judge's subsidiary findings absent clear error but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). In his decision on the motion to suppress, the judge credited the testimony of Officer Melissa Dion of the Ludlow Police Department, who testified at the motion to suppress hearing. The judge made findings of fact and adopted Officer Dion's version of events as true. His findings, supplemented by the testimony that he credited, Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008), include the following:
At approximately 12:11 A.M. Officer Dion and another officer, Andrew Roxo, responded to a report of a car crash, and found the defendant unconscious in his vehicle, which had apparently crashed into a utility pole. Witnesses from the sheriff's department were present, and they extracted the defendant from his car. The defendant regained limited ability to respond to questions in a yes/no fashion and admitted that he had had something to drink. Officer Dion observed a number of empty alcohol containers in the defendant's car and the odor of alcohol on the defendant. When asked, the defendant responded that he did not have any preexisting medical conditions.
Officers Dion and Roxo called for an ambulance, which arrived and took the defendant to Baystate Medical Center in Springfield, where it arrived at approximately 1:00 A.M. Officer Dion went with the defendant in the ambulance and stayed with him at the hospital. The defendant was placed under arrest for operating while under the influence of alcohol, and Miranda warnings were administered to him by Officer Dion in the ambulance. In the emergency room, Miranda warnings were readministered by Officer Dion and the defendant said that he had been drinking and was guilty.
Officer Dion's initial attempt to obtain the defendant's consent to a blood draw was delayed when a nurse indicated that the defendant was not medically cleared to consent. At approximately 3:30 A.M. , when the defendant apparently had been medically cleared for a conversation about obtaining a blood draw, and his demeanor had materially changed from his initial one-word answers, Officer Dion read to the defendant at the hospital a "statutory rights and consent form." That form states, as relevant here:
The form contains an additional "notice to persons holding a commercial driver's license" that referred to a "required test of blood, breath, or urine," but there is no evidence that this notice was applicable to the defendant. The part of the form that was applicable to the defendant does not specify that the "chemical test" will be on blood, as opposed to breath, urine, or anything else, nor does it state that blood will be drawn. The judge found that the defendant stated that he understood the form, that he signed the form, and that "[b]lood was taken from the defendant after the form was signed." In denying the motion to suppress, the judge concluded that "[a]t no time did the defendant object to the drawing of blood or otherwise attempt to frustrate the procedure."
The defendant filed a motion for reconsideration, which was denied, and from which he also appeals. He subsequently entered a conditional plea, admitting to facts sufficient for a finding of guilty to operating while under the influence of alcohol, G. L. c. 90, § 24 (1) (a ) (1), but the parties and the motion judge agreed that the defendant's right to appeal from the denial of his motion to suppress and his motion for reconsideration would be preserved. In Commonwealth v. Gomez, 480 Mass. 240, 252, 104 N.E.3d 636 (2018), the Supreme Judicial Court approved this procedure, and consequently we turn to the merits of the appeal.1
Discussion. The defendant argues that he did not consent to the blood draw. The Commonwealth argues that he did. They disagree about the standard that we should use to evaluate the question. Some background about the law is in order.
A. Blood draws and consent. It is well settled that one has a reasonable expectation of privacy in one's blood such that the piercing of one's skin with a needle to draw blood, and the testing of that blood, constitute a full-blown seizure and search for purposes of the Fourth Amendment to the United States Constitution. Commonwealth v. Angivoni, 383 Mass. 30, 32, 417 N.E.2d 422 (1981). As a matter of constitutional law, neither can be undertaken by government officials without probable cause and a warrant, absent some exception to the warrant requirement. See Missouri v. McNeely, 569 U.S. 141, 148, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), quoting Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (). In the absence of probable cause and a warrant (or exigent circumstances excusing the failure to obtain that warrant), police thus may not draw blood without consent.2 An agreement to have one's blood drawn and tested amounts to a waiver of one's constitutional right. Consequently, the constitutional standard for consent applies. Such consent must be "voluntary" under the Federal Fourth Amendment standard. This is not the "intentional relinquishment of a ‘known’ right" standard. See Schneckloth v. Bustamonte, 412 U.S. 218, 238, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Rather "[t]he Commonwealth must show consent unfettered by coercion, express or implied, and also something more than mere acquiescence to a claim of lawful authority" (quotations and citation omitted). Commonwealth v. Ortiz, 478 Mass. 820, 823, 90 N.E.3d 735 (2018).
By contrast, where there is an exigency, the drawing and testing of blood requires probable cause, but the requirement of a warrant is excused. If there is probable cause to believe an individual has been driving while under the influence of intoxicating liquor, and there are exigent circumstances excusing the warrant requirement, the Federal Constitution imposes no requirement of consent before blood may be drawn from an individual, even if the police have no warrant.
Nonetheless, we have held 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. As we held in Commonwealth v. Davidson, 27 Mass. App. Ct. 846, 848-849, 545 N.E.2d 55 (1989), where a blood draw by police is for these reasons permitted under the Fourth Amendment, "[t]he right of refusal [a defendant] does have stems from the statute, which requires that a test not be conducted without his consent." In this regard, and perhaps surprisingly, as we described in Davidson, a State law right to refuse is provided by what is colloquially called our "implied consent" law. Like other States, the Commonwealth has such a law, and its text states:
"Whoever operates a motor vehicle upon any way or in any place to which the public has right to access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of [ G. L. c. 111, § 51 ] ...."
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