by Matt Clarke

The Supreme Judicial Court of Massachusetts held that consent to testing and analysis is required for the results of a blood alcohol test to be admissible in an operating a motor vehicle under the influence of alcohol (“OUI”) prosecution even when there was a court order for the blood draw.

The vehicle Charles Bohigian was driving collided with an SUV that had spun out and was crossways to the road. The collision spun the SUV, which struck its driver, who was standing beside the road, and threw her into the path of Bohigian’s vehicle. He dragged her 200 feet, seriously injuring her.

Responding state troopers noticed that Bohigian had a bleeding head injury and was unsteady on his feet with glassy, bloodshot eyes, slurred speech, and breath that strongly smelled of alcohol. He told them “another vehicle had come out of nowhere and run that lady over.” He was taken to a hospital.

A nurse noted that Bohigian exhibited signs of a concussion. After he refused to consent to a blood draw, troopers procured a search warrant to obtain a blood sample.

Even after being shown the warrant, Bohigian objected to the blood draw. Therefore, troopers restrained his arms and legs while the nurse drew two vials of blood at a trooper’s behest. An analysis of the blood showed an alcohol content of 0.135%. A chemist determined that the blood alcohol content would have been between 0.16 and 0.26 at the time of the accident.

Bohigian was convicted of OUI, operating a vehicle negligently so as to endanger, and OUI causing serious bodily injury in violation of General Laws chapter (G. L. c.) 90, §§ 24 (1)(a)(1), 24(2)(a), and 24L(2), as well as misleading an investigator under G. L. c. 268, § 13B, for statements he made at the scene. Aided by attorney Erin R. Opperman, he filed a successful application for direct appellate review with the Supreme Judicial Court. 

The Court noted that drawing a person’s blood without consent is not unconstitutional if there’s a warrant or exigent circumstances. Missouri v. McNeely, 569 U.S. 141 (2013). However, Massachusetts and 17 other states had enacted statutes requiring consent for OUI-related blood draws. Such a requirement helps avoid violent confrontations and prevent unsafe conditions for the driver, medical personnel, and police.

The Court explained that the consent requirement hinges on G. L. c. 90, §§ 24(1)(e) and 24(1)(f)(1) working in tandem. The former states that a police-directed blood or breath test to determine blood alcohol content must be done with the defendant’s consent for the results to be admissible in a prosecution for OUI under § 24(1)(a). The latter provides that by driving on public roads all drivers give consent to a blood alcohol test if arrested for OUI. Nonetheless, it states that, should a driver refuse to submit to such a test or analysis, “no such test analysis shall be made,” but the driver’s license shall be suspended for at least 180 days and up to a lifetime loss.

The Court noted that the blood draw had been performed without Bohigian’s actual consent; in fact, he physically resisted the blood draw. Thus, the Court ruled that the results from testing the blood were inadmissible under the governing statutes. Furthermore, the error of admitting the results was not harmless as it was the best evidence that Bohigian was intoxicated at the time of the collision and used exclusively to prove the requisite intoxication for the OUI and negligent operation charges, according to the Court.

The Court rejected the prosecution’s argument that the blood draw was made at the behest of a court, not a police officer, noting that the trooper had requested the search warrant and told the nurse to draw the blood.

The Court also noted that the Legislature had amended the OUI statutes seven times since 1994 without changing the consent provision. This was long after Opinion of the Justices, 412 Mass. 1201 (Mass. 1992), in which the Supreme Judicial Court adopted the Appeals Court’s view that consent is required even after police obtained a search warrant. The Court stated this was a strong indication of legislative approval for that interpretation.

The Court also agreed with Bohigian that, because he sustained a head injury in the collision, the trial court should have conducted an inquiry into the voluntariness of his statements to the trooper. Under Commonwealth v. Brown, 872 N.E.2d 711 (Mass. 2007), the trial judge has an obligation to inquire into the voluntariness of statements sua sponta if there is substantial evidence of involuntariness even if the issue is not raised by the defense. Trial counsel referred to the head injuries and a nurse testified about their severity and that Bohigian showed signs of having suffered a concussive head trauma, such as being lethargic and “repeating himself quite often.” That evidence should have triggered an independent inquiry into the voluntariness of the statements by the trial judge.

Accordingly, the Court vacated the convictions and remanded the case to the trial court for proceedings consistent with its opinion. See: Commonwealth v. Bohigian, 157 N.E.3d 59 (Mass. 2020).

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