WEBVTT

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<v ->SJC-12858</v>

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Commonwealth V. Charles Bohigian.

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<v ->Ms. Opperman,</v>

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you may proceed.

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<v ->Good morning justices, Mr.Chief Justice</v>

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and may it please the court,

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My name is Erin Opperman

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and I represent the appellant, Charles Bohigian.

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And though the appellant raises several claims,

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we are here primarily because the trial court erred

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when it denied Mr. Bohigian's motion

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to exclude blood alcohol level results

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taken from tests on his blood that was forcibly taken

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without his consent and against his will

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in violation of G.L. Chapter 90, Section 24(1)(e).

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<v ->Is there anything in that statute</v>

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that says you can't get a warrant

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if consent is not given.

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<v ->The statute is silent as to the word warrant</v>

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or obtaining a search warrant.

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What the statute 24(1)(f) is not silent to is

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that such a test,

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if the person refuses to submit to a test,

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shall not be made.

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And I think looking to 24(1)(f) and 24(1)(e) is

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all this court really needs to do to determine

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that the lower court erred

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when it denied Mr. Bohigian's motion.

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<v ->When you look at the intent of the legislature</v>

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which we probably should,

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and the words,

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I get your argument that you have

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to look at (f) and (e) together,

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which have prohibitions in both.

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But when usually when you deal with (1)(f),

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it's the blood draw alternative, right.

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So if someone comes in

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they're offered a breath test,

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the police have to say

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you could also go and get a blood draw

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and the person, typically they give them those rights

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and the person says well I want a blood draw

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and they say well here's a phone book,

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go find someone and it doesn't happen.

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But if we look at why it was set up,

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isn't the purpose of the legislature in (1)(f)

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was to give an alternative for a blood test,

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to test the liability of the breath test device?

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<v ->I don't believe that that was the intent</v>

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of the legislature.

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I believe that the intent of the legislature with respect

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to section (1)(f),

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was to ensure

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that it was known that an individual

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under arrest for operating under the influence

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had the right to refuse a chemical test,

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whether that chemical test be a breath test or a blood test.

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And the language in the very beginning of (1)(f) says,

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obviously discussing implied consent,

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that an individual shall be deemed to have consented

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to submit to a chemical test or analysis

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of his breath or blood.

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So, I don't believe that section (1)(f) is something

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that provides an alternative.

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It is--

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<v ->Wasn't it in a response to the opinion of the justices</v>

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because they were concerned

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about the fifth amendment problem

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with the fact that the non-consent

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would be deemed incriminatory?

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Wasn't that what's driving the way this is phrased?

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<v ->Section (1)(f) was enacted prior to the opinion</v>

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of the justices to the Senate.

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<v Justice Kafker>Okay, so prior.</v>

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<v ->And that opinion dealt</v>

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with a potential change

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that the general court was then considering

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to make admissible evidence that a defendant had refused

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to take a test.

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And I think that that particular desired change

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by the general court and seeking an opinion from this court

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on whether or not that would be constitutionally problematic

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animates the intent of the legislature repeatedly

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over the last 60 years

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to forbid forced blood draws

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of individuals suspected of operating under the influence

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at the hands of the government.

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<v ->And just so we're clear, this has nothing to do</v>

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with the Constitution, state or federal,

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and it only applies to OUI prosecutions.

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So if there was a motor vehicle homicide, manslaughter,

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a blood test, based on a search warrant

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would be permissible, right?

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<v ->I don't necessarily agree with that.</v>

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Obviously in this--
<v ->Why not?</v>

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Why not?

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<v ->In this case, Mr. Bohigian was charged</v>

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with both operating under the influence under section (a)

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and also under section 24(l),

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operating under the influence, serious bodily injury,

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So I will address those two particular charges.

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<v ->No, but tell me why you won't concede</v>

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that it wouldn't apply to a motor vehicle homicide

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or manslaughter?

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<v ->I think that the arguments relative</v>

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to motor vehicle homicide and manslaughter

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by operating under the influence

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are a little further removed

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than a prosecution under 24(l)

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but I do believe that in all of those--

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<v ->But doesn't the statute say in any prosecution</v>

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for violation or offense is set out in (a).

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<v ->It does say that.</v>

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<v ->So, isn't Justice Gaziano right, though,</v>

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it's just limited to those set out in (a), right?

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<v ->I do not believe that's right.</v>

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And the reason I do not believe that's right is

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because 24(1)(e) was enacted in 1967.

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That language was reconsidered,

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albeit the language regarding the requirement

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of actual consent prior to admissibility

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of any blood alcohol tests was kept in place

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every time the court,

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the general court reconsidered that statute.

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It was revisited in 1971, 1980--

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<v ->But I don't understand.</v>

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<v ->1992</v>

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<v ->But if the language itself is expressly limited</v>

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to offenses set out in (a),

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why would it matter what its timing is?

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<v ->Because my pointing out the year</v>

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that that statute was enacted is because particularly

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with section 24(l),

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that was enacted well after 1967.

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When the legislature promulgated that specific language

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"in any prosecution for a violation of paragraph (a),"

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those other statutes didn't exist.

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Granted, it would have been--

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<v ->Write a statute after that</v>

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and this statute only expressly applies to these others,

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why would you need to deal with the issue?

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<v ->I'm not sure I understand Your Honor's question.</v>

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<v ->This statute about this consent issue says it's limited</v>

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to section (a),

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You say section (l) was drafted afterwards

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but why would anyone care about this

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because it's not referenced,

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they're not cross referenced.

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<v ->The beginning part of section 24(1)(e) deals</v>

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with the admissibility of results of a chemical test.

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It puts forth

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that a chemical test's results are presumed

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to be reliable and presumed to be evidence

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of how intoxicated someone may or may not be.

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And what it in effect does is,

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in operating under the influence cases

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or in cases where all the elements

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of operating under the influence need to be proved,

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it allows the prosecution to present the results

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of a blood alcohol test without an expert.

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It allows the prosecution to enjoy a presumption

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that a blood alcohol level between 0.05 and 0.08,

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that there is a presumptive, rebuttable inference

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that someone is intoxicated.

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It allows the prosecutor to receive jury instructions

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at the end of the trial,

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that any blood alcohol level

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above 0.08 is evidence of a crime.

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If this court were to determine

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that section 1(e) did not apply to other crimes

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which required proof of each element of operating

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under the influence,

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not only would a defendant not enjoy the right of refusal

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and the right

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or I guess would not be able to require

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that he or she have consented prior to admissibility

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of that evidence,

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the evidence wouldn't be admissible at all.

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<v ->I get it if, that makes (l) complicated</v>

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because that cross references operating under the influence

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but if this were just a vehicular manslaughter case,

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that doesn't require proof of operating under the influence,

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why would we be dealing with this statute at all?

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<v ->And I would only submit to the court that</v>

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if the charge was motor vehicle homicide

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by operating under the influence

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and it was necessary to convict an individual of that crime

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to prove each and every element

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of operating under the influence,

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that all of the presumptions

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and requirements found in section 1(e) would also apply.

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<v ->I guess I have a much more basic question.</v>

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Do we really have anything to do with the discussion

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about consent when there's a neutral and detached magistrate

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who's determined that there's probable cause to take blood?

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<v ->And by we, you mean this court?</v>

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<v ->I just think that</v>

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when the legislature is drafting something

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and dealing with consent in this area

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that you have to contemplate that the ability,

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if there's probable cause,

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to go before a neutral and detached magistrate

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and get a warrant,

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such that the whole issue of consent

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really doesn't come into play.

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<v ->I would say that</v>

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to adopt such an argument would be

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to completely ignore the statute entirely,

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and that's certainly not something

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that this court is inclined to do,

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to read a statute, such that it has no purpose whatsoever.

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<v ->Isn't the strange answer to that question is,</v>

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'cause you can get a search warrant for anything,

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body cavity searches, right?

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<v ->Apparently, yes.</v>

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<v ->And what we've said a lot of times is</v>

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the answer is a search warrant in all the CSLI cases

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and the like.

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Isn't the answer to Justice Lowy's question perhaps

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yeah, you can get a search warrant

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and you could take the blood

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but it's never gonna be admissible by statute

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<v ->I think that's correct.</v>

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I think that there are,

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when you're addressing a search warrant

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in this particular context,

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in the end you're really just evaluating

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or contemplating two different statutes.

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You have 90, 24(1)(e) on the one hand

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and you have the more general statute

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that governs search warrants, 276 Section (1).

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<v ->But that goes back to what Justice Kafker was asking you</v>

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because on one hand, you're arguing this is statutory,

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strictly enforce the statute,

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and then you're saying well, broadly construe the statute

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to eliminate it for all types

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of drunk driving types of offenses, no matter what they are.

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<v ->I am suggesting that this court</v>

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should construe section (1)(e) to apply to section 24(l)

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and that's really the only other statute that's at issue

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in this particular case and--

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<v ->No, that's fair, that's what's before us</v>

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but as you well recognize,

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what we say in this case will have ramifications.

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<v ->I do understand and--</v>

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<v ->That's why we're asking these questions.</v>

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<v ->Before you leave 24(l) because that seems hard to me</v>

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because I understand 24(l) talks

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about operating under the influence

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but it's not a 24(a) offense, right?

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And this whole statute begins

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by saying it applies only

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to 24(a) offenses, doesn't it?

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<v ->And again, I think that in reality,</v>

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though it's imperfect,

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the explanation is very likely

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that section 1(e) was enacted well before section 24(l).

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If the legislature had intended

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for the presumptions regarding intoxication

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based on a blood alcohol level test,

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the admissibility of a blood alcohol level test

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00:12:58.350 --> 00:13:02.330
without an expert presuming that it's admissible

263
00:13:02.330 --> 00:13:03.550
and relevant,

264
00:13:03.550 --> 00:13:07.110
that is really what the statute is initially about.

265
00:13:07.110 --> 00:13:09.480
That this test can be admitted

266
00:13:09.480 --> 00:13:11.000
and there's a presumption

267
00:13:11.000 --> 00:13:13.060
that the jury will be instructed on,

268
00:13:13.060 --> 00:13:15.640
that it is relevant to intoxication,

269
00:13:15.640 --> 00:13:17.360
the level of intoxication

270
00:13:17.360 --> 00:13:19.030
and in the end, it's a chemical test.

271
00:13:19.030 --> 00:13:22.713
There is usually in a situation like this,

272
00:13:23.850 --> 00:13:26.840
a prosecutor would have to admit an expert

273
00:13:26.840 --> 00:13:31.840
to explain what this test is, what it determines,

274
00:13:31.990 --> 00:13:34.500
why it's relevant to an element of the charge

275
00:13:34.500 --> 00:13:37.280
but the statute itself allows the court

276
00:13:37.280 --> 00:13:39.890
to instruct the jury that they must presume

277
00:13:39.890 --> 00:13:42.440
that it's relevant to this particular thing

278
00:13:42.440 --> 00:13:44.530
and that from this information,

279
00:13:44.530 --> 00:13:46.330
they can determine that one of the elements

280
00:13:46.330 --> 00:13:47.990
of the crime is met.

281
00:13:47.990 --> 00:13:52.130
If that wasn't applicable to these other charges

282
00:13:52.130 --> 00:13:55.750
but I will speak specifically to section 24(l),

283
00:13:55.750 --> 00:13:57.800
it would upend those prosecutions

284
00:13:57.800 --> 00:14:02.800
and it makes sense that the presumptions, the inferences

285
00:14:05.190 --> 00:14:10.190
and the rights that accompany those presumptions

286
00:14:10.670 --> 00:14:13.840
and inferences would apply in any case

287
00:14:13.840 --> 00:14:16.110
where each element of operating under the influence

288
00:14:16.110 --> 00:14:17.750
must be proved.

289
00:14:17.750 --> 00:14:20.080
Because in the end both parties benefit

290
00:14:20.080 --> 00:14:24.950
from the application of 1(e) to section 24(l)

291
00:14:24.950 --> 00:14:28.900
<v ->I wonder though, I'm still worried about the timing</v>

292
00:14:28.900 --> 00:14:31.760
because the opinion of the justices deals

293
00:14:31.760 --> 00:14:33.280
with this fifth amendment problem

294
00:14:33.280 --> 00:14:35.880
and I understand there's gonna be a fifth amendment problem

295
00:14:35.880 --> 00:14:40.550
whenever you deal with the failure to consent

296
00:14:42.080 --> 00:14:44.257
but I'm not sure that applies in 24(l).

297
00:14:45.290 --> 00:14:48.360
I'm not sure the same fifth amendment issues

298
00:14:48.360 --> 00:14:49.770
are raised there

299
00:14:51.050 --> 00:14:53.750
'cause I haven't thought it through

300
00:14:53.750 --> 00:14:56.123
but neither sides brief this either.

301
00:14:57.670 --> 00:14:59.970
<v ->I guess I don't see how they wouldn't apply.</v>

302
00:15:00.843 --> 00:15:04.120
I think in the opinion of the justices to the Senate,

303
00:15:04.120 --> 00:15:05.610
this court,

304
00:15:05.610 --> 00:15:06.990
I don't know that it found

305
00:15:06.990 --> 00:15:08.770
that there would be a fifth amendment issue.

306
00:15:08.770 --> 00:15:12.900
I believe that what the problem was was under article 12

307
00:15:12.900 --> 00:15:17.710
and that was that a defendant in Massachusetts

308
00:15:17.710 --> 00:15:20.700
certainly enjoys a broader protection.

309
00:15:20.700 --> 00:15:21.533
<v ->You're right.</v>

310
00:15:21.533 --> 00:15:23.530
It's an article 12 not a fifth amendment issue.

311
00:15:23.530 --> 00:15:28.530
<v ->So I think refusal to conduct a test of this nature</v>

312
00:15:29.610 --> 00:15:33.490
which provides some insight into the thought process

313
00:15:33.490 --> 00:15:36.593
of the suspect, eventually the defendant,

314
00:15:36.593 --> 00:15:38.950
would always be an article 12 issue,

315
00:15:38.950 --> 00:15:43.557
and it would apply in section 24(l)

316
00:15:43.557 --> 00:15:46.840
in a much broader class of crimes

317
00:15:46.840 --> 00:15:50.990
where a defendant is asked to make a decision

318
00:15:50.990 --> 00:15:52.330
of whether they want to do something

319
00:15:52.330 --> 00:15:56.200
which they may believe would incriminate them.

320
00:15:56.200 --> 00:15:58.640
It's the same reason why a refusal

321
00:15:58.640 --> 00:16:01.600
to conduct field sobriety tests would not be admissible

322
00:16:01.600 --> 00:16:06.600
in any charge in a crime that contains the elements

323
00:16:06.810 --> 00:16:09.350
of operating under the influence.

324
00:16:09.350 --> 00:16:14.350
I think that if the legislature did not want section (1)(e)

325
00:16:15.350 --> 00:16:18.730
to equally apply to 24(l),

326
00:16:18.730 --> 00:16:22.560
which is primarily an operating under the influence crime,

327
00:16:22.560 --> 00:16:26.170
it really only contains an additional element of injury

328
00:16:26.170 --> 00:16:27.393
to another party,

329
00:16:28.360 --> 00:16:31.910
something unrelated to the considerations

330
00:16:31.910 --> 00:16:34.490
in the operating under the influence statute,

331
00:16:34.490 --> 00:16:36.740
that the legislature would have said so.

332
00:16:36.740 --> 00:16:40.160
And I do believe that this court could not say

333
00:16:40.160 --> 00:16:45.160
that it would allow a prosecutor in a prosecution

334
00:16:45.170 --> 00:16:48.220
for section 24(l) to enjoy the presumptions

335
00:16:49.080 --> 00:16:53.780
and the assumed relevance of the blood alcohol level test

336
00:16:53.780 --> 00:16:57.180
if it did not also conclude that consent was required

337
00:16:57.180 --> 00:17:00.200
prior to admitting a test in a prosecution

338
00:17:00.200 --> 00:17:01.810
under that statute.

339
00:17:01.810 --> 00:17:02.643
<v ->Okay, thank you.</v>

340
00:17:02.643 --> 00:17:03.476
<v ->Thank you.</v>

341
00:17:04.580 --> 00:17:05.413
<v ->Miss Haran.</v>

342
00:17:08.820 --> 00:17:10.130
<v ->Good morning, may it please the court,</v>

343
00:17:10.130 --> 00:17:11.930
Donna-Marie Haran, Assistant District Attorney,

344
00:17:11.930 --> 00:17:13.680
on behalf of the Commonwealth.

345
00:17:13.680 --> 00:17:15.920
The trial judge here properly denied the defendant's motion

346
00:17:15.920 --> 00:17:18.330
in limine to exclude the defendant's blood test results

347
00:17:18.330 --> 00:17:20.230
where the Commonwealth obtained the defendant's blood

348
00:17:20.230 --> 00:17:22.230
through a search warrant and not through consent.

349
00:17:22.230 --> 00:17:25.231
So therefore (1)(e) and after do not apply to this case.

350
00:17:25.231 --> 00:17:28.687
<v ->If I can walk you through 24(1)(f)(1),</v>

351
00:17:33.507 --> 00:17:36.320
do you agree that or is it your view

352
00:17:36.320 --> 00:17:40.870
that a search warrant can be used to obtain a breathalyzer?

353
00:17:40.870 --> 00:17:44.030
<v ->Yes, I think a search warrant could be used</v>

354
00:17:44.030 --> 00:17:44.863
to obtain,

355
00:17:46.100 --> 00:17:48.370
Yes, to force a defendant to take a breathalyzer test,

356
00:17:48.370 --> 00:17:49.203
I don't--

357
00:17:49.203 --> 00:17:52.297
<v ->Where it says, "If a person arrested refuses to submit</v>

358
00:17:52.297 --> 00:17:55.647
"to such test or analysis having been informed

359
00:17:55.647 --> 00:17:59.877
"that his license or permit to operate motor vehicles

360
00:17:59.877 --> 00:18:02.997
"shall be suspended for a period of at least 180 days,

361
00:18:02.997 --> 00:18:05.617
"no such test or analysis shall be made."

362
00:18:06.760 --> 00:18:11.500
How do you understand that language?

363
00:18:11.500 --> 00:18:13.753
<v ->I understand that if you're going under consent,</v>

364
00:18:13.753 --> 00:18:16.020
then the applied consent that applies

365
00:18:16.020 --> 00:18:18.350
when you drive in Massachusetts, you're implied to consent

366
00:18:18.350 --> 00:18:20.530
to all breathalyzers or blood tests.

367
00:18:20.530 --> 00:18:23.203
I take that as if a person refuses to consent

368
00:18:23.203 --> 00:18:24.700
that no test shall be made.

369
00:18:24.700 --> 00:18:27.520
I don't see it as exclusive, mutually exclusive,

370
00:18:27.520 --> 00:18:30.500
saying you can still get a search warrant

371
00:18:30.500 --> 00:18:32.280
and I would suggest if you look through the cases

372
00:18:32.280 --> 00:18:33.220
throughout this court,

373
00:18:33.220 --> 00:18:36.260
Commonwealth versus Angivoni, Commonwealth V. Dennis,

374
00:18:36.260 --> 00:18:37.890
which (murmurs) of The Appeals Court,

375
00:18:37.890 --> 00:18:41.390
they all recognize that you can obtain a blood test

376
00:18:41.390 --> 00:18:42.330
through a search warrant

377
00:18:42.330 --> 00:18:44.240
or you can obtain it through consent.

378
00:18:44.240 --> 00:18:45.320
There's two different avenues

379
00:18:45.320 --> 00:18:48.190
from which you can obtain a blood alcohol level.

380
00:18:48.190 --> 00:18:50.520
And it's been repeatedly held that you can obtain it

381
00:18:50.520 --> 00:18:51.830
through a search warrant.

382
00:18:51.830 --> 00:18:54.120
And I ask that you look at Commonwealth V. Blais,

383
00:18:54.120 --> 00:18:56.720
I just think there's two separate avenues you can go through

384
00:18:56.720 --> 00:18:58.390
and if you go through the applied consent

385
00:18:58.390 --> 00:19:01.110
which is outlined in the statute

386
00:19:01.110 --> 00:19:02.560
and if the defendant refuses

387
00:19:02.560 --> 00:19:03.600
and you don't get a search warrant,

388
00:19:03.600 --> 00:19:04.590
then it's not admissible.

389
00:19:04.590 --> 00:19:07.130
It's just two different avenues you can use to obtain--

390
00:19:07.130 --> 00:19:08.590
<v ->Okay, well let's discuss that avenue.</v>

391
00:19:08.590 --> 00:19:13.530
So, if it were to be, if the individual had consented,

392
00:19:13.530 --> 00:19:14.763
let's look to the top.

393
00:19:15.670 --> 00:19:19.690
Is it true that, note where it says provided further

394
00:19:19.690 --> 00:19:21.480
that if there is to be consent

395
00:19:21.480 --> 00:19:24.120
or if there's to be deemed consent,

396
00:19:24.120 --> 00:19:26.630
it has to be done at a medical facility, correct?

397
00:19:26.630 --> 00:19:27.463
<v ->Yes.</v>

398
00:19:27.463 --> 00:19:30.447
<v ->And provided further that "no person who is afflicted</v>

399
00:19:30.447 --> 00:19:32.167
"with hemophilia, diabetes

400
00:19:32.167 --> 00:19:36.057
"or any other condition requiring the use of anticoagulants

401
00:19:36.057 --> 00:19:39.427
"shall be deemed to have consented to withdrawal of blood."

402
00:19:40.310 --> 00:19:44.340
So, do you agree that if there is to be consent,

403
00:19:44.340 --> 00:19:47.870
there first has to be a determination

404
00:19:47.870 --> 00:19:51.550
that the person does not have hemophilia, diabetes

405
00:19:51.550 --> 00:19:54.663
or another condition requiring the use of anticoagulants.

406
00:19:57.440 --> 00:19:59.530
<v ->If you're going to consent, yes.</v>

407
00:19:59.530 --> 00:20:00.363
<v ->Okay.</v>

408
00:20:02.490 --> 00:20:05.690
We don't permit somebody to consent

409
00:20:05.690 --> 00:20:09.640
to a blood test unless we know

410
00:20:09.640 --> 00:20:12.833
that the person does not have those conditions, correct?

411
00:20:15.340 --> 00:20:16.800
<v ->Under consent, yes.</v>

412
00:20:16.800 --> 00:20:20.840
<v ->So, the search warrant affidavit makes no reference</v>

413
00:20:20.840 --> 00:20:23.190
to whether this particular individual is afflicted

414
00:20:23.190 --> 00:20:24.770
with hemophilia, diabetes,

415
00:20:24.770 --> 00:20:27.560
or any other condition requiring the use of anticoagulants.

416
00:20:27.560 --> 00:20:28.393
Does it?

417
00:20:28.393 --> 00:20:30.373
<v ->I don't believe the search warrant did. No, Your Honor.</v>

418
00:20:30.373 --> 00:20:34.480
<v ->So how can, if the law does not permit an individual</v>

419
00:20:34.480 --> 00:20:35.670
to consent

420
00:20:36.760 --> 00:20:39.870
without such a determination,

421
00:20:39.870 --> 00:20:42.640
how can the law permit it to be done pursuant

422
00:20:42.640 --> 00:20:43.640
to a search warrant.

423
00:20:46.940 --> 00:20:47.870
<v ->A little bit confusing question</v>

424
00:20:47.870 --> 00:20:51.080
but it says, "shall be deemed to have consented unless,"

425
00:20:51.080 --> 00:20:54.643
it's talking about consent, implied consent.

426
00:20:54.643 --> 00:20:55.476
<v ->But the law is saying is that even,</v>

427
00:20:55.476 --> 00:20:57.810
we're not going to allow you even

428
00:20:57.810 --> 00:21:00.890
to consent to it unless we know

429
00:21:00.890 --> 00:21:02.510
that if we take your blood,

430
00:21:02.510 --> 00:21:05.510
we're not going to be in a situation in which we're going

431
00:21:05.510 --> 00:21:10.510
to be causing you the risk of serious medical harm, correct?

432
00:21:12.210 --> 00:21:14.550
That's why they basically say

433
00:21:14.550 --> 00:21:19.550
we're not even gonna allow you to consent unless we know

434
00:21:20.010 --> 00:21:22.610
that we're not gonna be in a situation

435
00:21:22.610 --> 00:21:24.470
in which you're gonna have a problem

436
00:21:24.470 --> 00:21:27.127
with having your blood coagulate.

437
00:21:31.210 --> 00:21:32.763
<v ->Well, I understand that, Your Honor,</v>

438
00:21:32.763 --> 00:21:35.100
but if you have a search warrant and go to a hospital

439
00:21:35.100 --> 00:21:37.980
and the medical personnel which has to withdraw the blood,

440
00:21:37.980 --> 00:21:38.930
takes the blood,

441
00:21:38.930 --> 00:21:41.050
if there is an issue with that,

442
00:21:41.050 --> 00:21:42.111
I would believe that the hospital

443
00:21:42.111 --> 00:21:44.810
would then tell the officer

444
00:21:46.186 --> 00:21:48.070
you're gonna put the person's health at risk

445
00:21:48.070 --> 00:21:48.903
if you take the blood.

446
00:21:48.903 --> 00:21:51.731
<v ->Well, how is the hospital supposed to know that.</v>

447
00:21:51.731 --> 00:21:53.510
<v ->They're medical professionals, Your Honor.</v>

448
00:21:53.510 --> 00:21:54.670
I would assume they would know

449
00:21:54.670 --> 00:21:56.760
if the defendant has a medical condition

450
00:21:56.760 --> 00:21:58.360
which would make it dangerous

451
00:21:58.360 --> 00:21:59.760
for them to withdraw the blood.

452
00:21:59.760 --> 00:22:01.890
<v ->How are they to know that?</v>

453
00:22:01.890 --> 00:22:03.730
Unless the person tells them.

454
00:22:03.730 --> 00:22:04.720
The medical records,

455
00:22:04.720 --> 00:22:07.330
the person may have had no previous medical history

456
00:22:07.330 --> 00:22:08.203
at that hospital.

457
00:22:09.580 --> 00:22:11.950
<v ->There's, sorry excuse me,</v>

458
00:22:11.950 --> 00:22:13.550
how is an officer supposed

459
00:22:13.550 --> 00:22:15.880
to know that, Your Honor, if the defendant doesn't consent

460
00:22:15.880 --> 00:22:17.370
and they don't tell the officer

461
00:22:17.370 --> 00:22:19.082
that they have this medical condition?

462
00:22:19.082 --> 00:22:21.420
<v ->The law basically says we don't even allow you to consent</v>

463
00:22:21.420 --> 00:22:25.510
unless the officer says do you have hemophilia, diabetes

464
00:22:25.510 --> 00:22:27.430
or any other condition requiring the use of anticoagulants.

465
00:22:27.430 --> 00:22:29.230
If the answer is yes, I have those conditions,

466
00:22:29.230 --> 00:22:31.460
we don't even allow you to consent.

467
00:22:31.460 --> 00:22:33.227
<v ->I frankly have never seen a case of that</v>

468
00:22:33.227 --> 00:22:35.590
in the consent form, Your Honor, but...

469
00:22:37.290 --> 00:22:38.453
<v ->I'm just reading the statute.</v>

470
00:22:38.453 --> 00:22:39.286
<v ->I understand that, Your Honor.</v>

471
00:22:39.286 --> 00:22:40.119
<v ->So, I guess my point is</v>
<v ->I was just</v>

472
00:22:40.119 --> 00:22:43.660
<v ->My point is if the law does not allow you to consent</v>

473
00:22:43.660 --> 00:22:47.120
without being certain of these conditions,

474
00:22:47.120 --> 00:22:50.090
how can the law permit a magistrate

475
00:22:50.090 --> 00:22:52.870
to order it pursuant to a search warrant

476
00:22:52.870 --> 00:22:55.963
without having that same assurance.

477
00:22:56.870 --> 00:22:58.720
<v ->I think the law allows it, Your Honor,</v>

478
00:22:58.720 --> 00:23:01.340
'cause the case law has consistently held

479
00:23:01.340 --> 00:23:02.680
that there's two avenues you can go with,

480
00:23:02.680 --> 00:23:04.910
consent or a search warrant.

481
00:23:04.910 --> 00:23:06.450
And with the search warrant,

482
00:23:06.450 --> 00:23:09.700
then you have a detached, neutral magistrate determining

483
00:23:09.700 --> 00:23:13.310
whether there's probable cause to obtain the blood

484
00:23:13.310 --> 00:23:14.530
and allows you to do that,

485
00:23:14.530 --> 00:23:16.723
whether this section,

486
00:23:17.860 --> 00:23:20.836
I would assume that a hospital personnel...

487
00:23:20.836 --> 00:23:22.440
<v ->But you can't, I mean, you've been to a hospital.</v>

488
00:23:22.440 --> 00:23:25.290
You know that the hospital records are not,

489
00:23:25.290 --> 00:23:26.810
unless you've been to that hospital

490
00:23:26.810 --> 00:23:29.160
or unless you're part of that hospital network,

491
00:23:29.160 --> 00:23:31.650
they're not necessarily gonna have a record of who you are

492
00:23:31.650 --> 00:23:33.450
or what your medical conditions are.

493
00:23:34.900 --> 00:23:36.250
<v ->The answer's gonna stay the same, Your Honor.</v>

494
00:23:36.250 --> 00:23:37.907
<v ->I understand.
(Haran drowned out by Justice)</v>

495
00:23:37.907 --> 00:23:39.101
But you see there's a problem.

496
00:23:39.101 --> 00:23:40.180
<v ->I understand, I can see that as a problem</v>

497
00:23:40.180 --> 00:23:43.650
but I think that my answer's still the same,

498
00:23:43.650 --> 00:23:44.870
that you can go under both avenues

499
00:23:44.870 --> 00:23:46.940
either a search warrant or consent.

500
00:23:46.940 --> 00:23:48.030
<v ->How would that play out</v>

501
00:23:48.030 --> 00:23:52.470
if there were a grand jury request or a Levine Hearing?

502
00:23:52.470 --> 00:23:57.470
Would the medical condition of the suspect become a factor

503
00:23:57.860 --> 00:23:58.960
in the hearing?

504
00:23:58.960 --> 00:24:00.648
<v ->After the taking of the blood, Your Honor,</v>

505
00:24:00.648 --> 00:24:01.481
I would assume.

506
00:24:01.481 --> 00:24:02.314
<v ->Or before.</v>

507
00:24:02.314 --> 00:24:04.890
<v ->Well, I don't think it's possible to have a hearing</v>

508
00:24:06.120 --> 00:24:09.750
prior to taking a person's blood due to the exigency

509
00:24:10.941 --> 00:24:14.040
of the alcohol level in the blood.

510
00:24:14.040 --> 00:24:17.690
<v ->Right, although didn't the US Supreme Court say</v>

511
00:24:17.690 --> 00:24:20.940
it was not accepting exigency

512
00:24:20.940 --> 00:24:22.580
with regard to blood alcohol dissipation.

513
00:24:22.580 --> 00:24:24.005
<v ->For a warrantless search.</v>

514
00:24:24.005 --> 00:24:24.838
<v ->Warrantless search.</v>

515
00:24:24.838 --> 00:24:26.520
<v ->They said they would not accept exigency in itself</v>

516
00:24:26.520 --> 00:24:27.770
but then in Levine,

517
00:24:27.770 --> 00:24:29.380
in the matter of Levine itself, it says,

518
00:24:29.380 --> 00:24:31.200
for the purpose of testing (murmurs)

519
00:24:31.200 --> 00:24:33.100
I can't say the word right, characteristics,

520
00:24:33.100 --> 00:24:35.340
meaning not exigent characteristics in this court

521
00:24:35.340 --> 00:24:38.520
and Miles further elaborated on Levine saying

522
00:24:38.520 --> 00:24:41.990
that that is for when time is of the essence

523
00:24:41.990 --> 00:24:43.260
and it's a temporary condition,

524
00:24:43.260 --> 00:24:44.600
they allow for a search warrant

525
00:24:44.600 --> 00:24:48.610
without an evidentiary hearing due to the exigency nature.

526
00:24:48.610 --> 00:24:51.330
So here given the blood alcohol level is

527
00:24:51.330 --> 00:24:53.450
a exigent circumstance with a warrant

528
00:24:54.370 --> 00:24:56.750
'cause you have a detached, neutral magistrate determining

529
00:24:56.750 --> 00:24:58.520
whether there's probable cause, it's not warrantless.

530
00:24:58.520 --> 00:25:02.543
They determine that a hearing would not be practical.

531
00:25:04.620 --> 00:25:05.590
<v ->Justice Cypher, are you done?</v>

532
00:25:05.590 --> 00:25:06.850
<v ->Yes sir.</v>

533
00:25:06.850 --> 00:25:11.800
<v ->So in every ordinary OUI case</v>

534
00:25:11.800 --> 00:25:14.610
this whole statute could be avoided

535
00:25:14.610 --> 00:25:16.300
by just getting a warrant

536
00:25:16.300 --> 00:25:18.050
in every single case, right?

537
00:25:18.050 --> 00:25:19.640
<v ->You could, yes.</v>

538
00:25:19.640 --> 00:25:22.410
<v ->So this whole jurisprudence we've developed is</v>

539
00:25:23.810 --> 00:25:25.030
everything can be avoided,

540
00:25:25.030 --> 00:25:27.160
and maybe that's just 'cause of the opinion

541
00:25:27.160 --> 00:25:29.110
the justice decisions were worried about,

542
00:25:29.110 --> 00:25:32.273
the effect of refusal of consent,

543
00:25:33.180 --> 00:25:36.720
so just, from now on after this case,

544
00:25:36.720 --> 00:25:40.110
'cause there's always gonna be probable cause most likely,

545
00:25:40.110 --> 00:25:43.353
so basically you've gutted the statute.

546
00:25:44.210 --> 00:25:45.770
<v ->I don't believe we've gutted the statute, Your Honor,</v>

547
00:25:45.770 --> 00:25:47.410
and I believe, as in this case,

548
00:25:47.410 --> 00:25:48.840
the state police clearly believed

549
00:25:48.840 --> 00:25:51.110
that they could obtain a search warrant

550
00:25:51.110 --> 00:25:53.420
and therefore, thus in the past years they could have

551
00:25:53.420 --> 00:25:55.700
in every OUI case obtain a search warrant.

552
00:25:55.700 --> 00:25:57.160
Whether they would do that or not,

553
00:25:57.160 --> 00:25:59.900
I would deem as not practical in every case.

554
00:25:59.900 --> 00:26:02.010
Given the serious nature of the victim's injuries

555
00:26:02.010 --> 00:26:02.960
in this case,

556
00:26:02.960 --> 00:26:06.590
they determined that a search warrant was necessary.

557
00:26:06.590 --> 00:26:08.590
And I would say you look to the purpose of the statute

558
00:26:08.590 --> 00:26:11.750
and Commonwealth V. Richards out of this court recently,

559
00:26:11.750 --> 00:26:13.650
in looking at the statute as a whole,

560
00:26:13.650 --> 00:26:17.220
now there, they were looking at the license revocation

561
00:26:17.220 --> 00:26:19.660
for refusal to take the BT,

562
00:26:19.660 --> 00:26:21.540
but they were looking at the statute a whole

563
00:26:21.540 --> 00:26:22.677
and said that, "The statute is

564
00:26:22.677 --> 00:26:24.237
"to effectuate the Commonwealth's interests

565
00:26:24.237 --> 00:26:26.087
"and obtain reliable, relevant evidence

566
00:26:26.087 --> 00:26:28.727
"by inducing a drunk driver to take a breath test

567
00:26:28.727 --> 00:26:31.740
"and promotes the safety of the highways to remove--"

568
00:26:31.740 --> 00:26:33.920
<v ->But it's an elaborate working</v>

569
00:26:33.920 --> 00:26:36.393
around the article 12 problem,

570
00:26:38.500 --> 00:26:42.790
but you've solved it now by get a search warrant,

571
00:26:42.790 --> 00:26:44.840
you don't have to worry about article 12.

572
00:26:46.122 --> 00:26:47.810
Maybe, you're right, maybe.

573
00:26:47.810 --> 00:26:50.670
But it just seems pretty dramatic.

574
00:26:50.670 --> 00:26:53.160
The statute can basically be eliminated.

575
00:26:53.160 --> 00:26:56.500
Just go to the magistrate every time you got an OUI case

576
00:26:56.500 --> 00:26:58.113
and you'll get blood taken.

577
00:26:59.197 --> 00:27:02.470
<v ->I believe through a search, we get numerous things,</v>

578
00:27:02.470 --> 00:27:04.260
we issue search warrants numerous times

579
00:27:04.260 --> 00:27:05.330
because we don't have consent, that's another--

580
00:27:05.330 --> 00:27:09.060
<v ->I guess the issue was what the statute says</v>

581
00:27:09.060 --> 00:27:10.783
because of course you need a search warrant

582
00:27:10.783 --> 00:27:12.680
unless there's a prohibition.

583
00:27:12.680 --> 00:27:14.763
So what I understand,

584
00:27:15.650 --> 00:27:16.640
the discussion we were having

585
00:27:16.640 --> 00:27:21.640
with counsel before was you could limit 24(1)(e)

586
00:27:22.420 --> 00:27:25.370
by saying this isn't a prosecution in paragraph (a)

587
00:27:25.370 --> 00:27:28.250
but the problem you've got is if you go to 24(1)(f),

588
00:27:28.250 --> 00:27:30.193
what the chief raised,

589
00:27:31.220 --> 00:27:33.500
he discussed that that language about anticoagulants

590
00:27:33.500 --> 00:27:36.500
but when we go further down it says

591
00:27:36.500 --> 00:27:40.620
if the person arrested refuses blah blah blah

592
00:27:40.620 --> 00:27:43.967
and then it says, "No such tests or analysis shall be made."

593
00:27:45.340 --> 00:27:46.173
Right?

594
00:27:46.173 --> 00:27:47.367
<v ->Yes and I interpret that if you go</v>

595
00:27:47.367 --> 00:27:49.830
under the implied consent.

596
00:27:49.830 --> 00:27:51.693
That's the portion of the statute which is

597
00:27:51.693 --> 00:27:53.440
this is what that's referring to,

598
00:27:53.440 --> 00:27:55.050
that when you drive on the highways of Massachusetts,

599
00:27:55.050 --> 00:27:56.410
you're implied to have consent.

600
00:27:56.410 --> 00:27:58.390
If you don't consent then no test shall be made

601
00:27:58.390 --> 00:27:59.700
under the implied consent.

602
00:27:59.700 --> 00:28:02.070
<v ->I understand your argument</v>

603
00:28:02.070 --> 00:28:06.970
that this is just completely different than consent,

604
00:28:06.970 --> 00:28:10.620
just like if you're receiving medical treatment

605
00:28:10.620 --> 00:28:12.690
and within the course of the medical treatment,

606
00:28:12.690 --> 00:28:14.670
there's blood taken,

607
00:28:14.670 --> 00:28:16.260
that it has nothing to do with consent

608
00:28:16.260 --> 00:28:18.500
but it does the raise the question

609
00:28:18.500 --> 00:28:20.393
that Justice Kafker was getting at.

610
00:28:22.010 --> 00:28:26.930
We have habitual drunk drivers who

611
00:28:26.930 --> 00:28:28.160
if they know anything,

612
00:28:28.160 --> 00:28:30.230
they know not to take the breathalyzer test.

613
00:28:30.230 --> 00:28:32.560
<v ->Yes Your Honor.</v>

614
00:28:32.560 --> 00:28:36.540
<v ->And there's a lot of public safety concerns</v>

615
00:28:36.540 --> 00:28:39.240
about habitual drunk drivers

616
00:28:39.240 --> 00:28:43.090
who know not to provide the strongest evidence.

617
00:28:43.090 --> 00:28:47.950
Why is it that all these years that we've had this problem,

618
00:28:47.950 --> 00:28:52.260
sometimes you'll see somebody with 10, 15 priors

619
00:28:55.090 --> 00:28:58.313
that no one ever went and got a search warrant before.

620
00:28:59.750 --> 00:29:02.310
<v ->I just think it shows the police's discretion</v>

621
00:29:02.310 --> 00:29:03.260
in this matter,

622
00:29:03.260 --> 00:29:07.610
in that, this was a particularly harrowing accident

623
00:29:07.610 --> 00:29:08.443
which led to,

624
00:29:09.934 --> 00:29:10.767
<v ->But that's my point.</v>

625
00:29:10.767 --> 00:29:15.447
My point is there are really dangerous situations,

626
00:29:15.447 --> 00:29:18.077
I mean I had a case right in front of me, an OUI 10th

627
00:29:18.077 --> 00:29:20.700
and the person went right through the light,

628
00:29:20.700 --> 00:29:24.620
hit an ambulance and people were really hurt.

629
00:29:24.620 --> 00:29:25.773
No one went and,

630
00:29:26.950 --> 00:29:28.440
<v ->I believe they could have, Your Honor.</v>

631
00:29:28.440 --> 00:29:30.610
Unfortunately, they did not but I believe under--

632
00:29:30.610 --> 00:29:32.270
<v ->I don't know how you're gonna answer the question.</v>

633
00:29:32.270 --> 00:29:33.470
It's not a fair question

634
00:29:34.947 --> 00:29:37.230
but it's in Justice Kafker's question.

635
00:29:37.230 --> 00:29:38.900
Why didn't this ever happen before?

636
00:29:38.900 --> 00:29:42.090
We've got this whole elaborate statute

637
00:29:42.090 --> 00:29:46.460
that allows not only refusal of the breathalyzer

638
00:29:46.460 --> 00:29:48.740
but its inadmissibility,

639
00:29:48.740 --> 00:29:53.543
and here we are with a judicial response system,

640
00:29:54.460 --> 00:29:56.583
a warrant may be moments away.

641
00:29:58.570 --> 00:29:59.743
<v ->In my case research,</v>

642
00:30:01.010 --> 00:30:02.930
I've never seen one under the search warrant

643
00:30:02.930 --> 00:30:04.130
but as I've noted,

644
00:30:04.130 --> 00:30:06.360
they all mentioned you can get blood one of two ways,

645
00:30:06.360 --> 00:30:07.193
through a search warrant

646
00:30:07.193 --> 00:30:09.890
and then the cases always talked about, consent.

647
00:30:09.890 --> 00:30:11.110
For whatever reason, I don't know

648
00:30:11.110 --> 00:30:13.300
why this issue has never popped up until now

649
00:30:13.300 --> 00:30:15.920
but it has and I would suggest based on the cases

650
00:30:15.920 --> 00:30:17.070
that I've cited in my brief,

651
00:30:17.070 --> 00:30:19.590
that it's clear that you can get a search warrant

652
00:30:19.590 --> 00:30:21.590
for blood and you can get an involuntary

653
00:30:22.500 --> 00:30:25.400
<v ->Well, the cases aren't OUI cases</v>

654
00:30:25.400 --> 00:30:26.830
that you're relying on, right?

655
00:30:26.830 --> 00:30:27.760
<v ->No, they are.</v>

656
00:30:27.760 --> 00:30:29.620
Dennis was an OUI case.

657
00:30:29.620 --> 00:30:32.313
<v ->Dennis, gimme the facts of Dennis.</v>

658
00:30:33.670 --> 00:30:34.503
<v ->Give me one second.</v>

659
00:30:34.503 --> 00:30:37.200
Angivoni, the 1981 was an OUI case

660
00:30:37.200 --> 00:30:38.940
but they all talk about consent.

661
00:30:38.940 --> 00:30:40.140
They go on to--

662
00:30:40.140 --> 00:30:42.670
<v ->Right, no, we haven't dealt with this issue.</v>

663
00:30:42.670 --> 00:30:45.810
<v ->No, I've never seen a search warrant.</v>

664
00:30:45.810 --> 00:30:48.090
They all say you can either get a search warrant

665
00:30:48.090 --> 00:30:48.923
or go consent,

666
00:30:48.923 --> 00:30:51.920
and then the remainder of the decision talks about consent.

667
00:30:51.920 --> 00:30:55.313
<v ->Are you at all, say you don't win outright,</v>

668
00:30:56.840 --> 00:30:57.970
and I'm not saying you won't.

669
00:30:57.970 --> 00:30:59.620
I just don't understand this yet.

670
00:31:01.852 --> 00:31:04.252
What about the idea that this statute is limited

671
00:31:05.952 --> 00:31:09.720
to OUI offenses and 24(l)

672
00:31:09.720 --> 00:31:13.130
or a vehicular homicide case would be outside of that.

673
00:31:13.130 --> 00:31:14.790
Do you find that persuasive

674
00:31:14.790 --> 00:31:17.513
or is it an all or nothing issue for you?

675
00:31:18.450 --> 00:31:20.610
<v ->Well I find persuasive when you're asking my sister is</v>

676
00:31:20.610 --> 00:31:23.680
that she said 24(a) was done years ago

677
00:31:23.680 --> 00:31:24.760
and then they made 24(l),

678
00:31:24.760 --> 00:31:26.220
the fact that the legislature didn't,

679
00:31:26.220 --> 00:31:30.880
having 24(a) they didn't say refer to 24(a), (e), (f)

680
00:31:30.880 --> 00:31:32.520
in its statute, I think speaks volumes

681
00:31:32.520 --> 00:31:35.040
that that was not their intent.

682
00:31:35.040 --> 00:31:37.720
So I would suggest that their intent was clear

683
00:31:37.720 --> 00:31:41.747
if it was crafted after the 24(a), (e) and (f),

684
00:31:42.770 --> 00:31:46.320
that it doesn't specifically direct you to go back to that.

685
00:31:46.320 --> 00:31:48.970
I think it's clear what legislation intent was there.

686
00:31:49.910 --> 00:31:53.000
<v ->So, in the world you want us to create,</v>

687
00:31:53.000 --> 00:31:54.560
or what you say the law permits,

688
00:31:54.560 --> 00:31:57.330
is that whenever there is somebody accused

689
00:31:57.330 --> 00:32:00.420
of being a drunk driver who refuses to take a breathalyzer

690
00:32:00.420 --> 00:32:01.970
or a drug test,

691
00:32:01.970 --> 00:32:04.200
you can go (murmurs) seek a warrant

692
00:32:04.200 --> 00:32:07.010
and get a breathalyzer or a drug test.

693
00:32:07.010 --> 00:32:08.863
<v ->Yes, your honor, through a search warrant.</v>

694
00:32:11.530 --> 00:32:14.000
<v ->And do you agree that that would be a fundamental change</v>

695
00:32:14.000 --> 00:32:16.930
in terms of how, at least presently,

696
00:32:16.930 --> 00:32:19.072
the world seems to work?

697
00:32:19.072 --> 00:32:20.770
<v ->I don't think that's a fundamental change, your honor,</v>

698
00:32:20.770 --> 00:32:21.603
I believe

699
00:32:21.603 --> 00:32:22.491
<v ->Are you saying that police routinely are seeking</v>

700
00:32:22.491 --> 00:32:24.957
search warrants for either

701
00:32:24.957 --> 00:32:26.132
blood warrants,
<v ->No, they don't routinely</v>

702
00:32:26.132 --> 00:32:27.948
<v ->or breathalyzers?</v>
<v ->But I think in serious cases</v>

703
00:32:27.948 --> 00:32:30.033
as in this one they do and they did.

704
00:32:31.800 --> 00:32:33.750
<v ->This is the first time we've seen it.</v>

705
00:32:34.740 --> 00:32:37.130
And in Angivoni, was that a search warrant case,

706
00:32:37.130 --> 00:32:38.240
that's an older case.

707
00:32:38.240 --> 00:32:40.270
<v ->Yeah, no I have not found a search warrant case</v>

708
00:32:40.270 --> 00:32:41.103
but they all--

709
00:32:41.103 --> 00:32:42.380
<v ->So this is the first time we have a search warrant</v>

710
00:32:42.380 --> 00:32:43.546
for either blood or

711
00:32:43.546 --> 00:32:44.610
<v ->Yes, that I could find in Massachusetts.</v>

712
00:32:44.610 --> 00:32:46.080
<v ->And with regard to a breathalyzer,</v>

713
00:32:46.080 --> 00:32:48.250
can you understand the challenges

714
00:32:48.250 --> 00:32:51.580
of having a non-consensual breathalyzer.

715
00:32:51.580 --> 00:32:54.580
<v ->I can appreciate that would be very difficult, Your Honor.</v>

716
00:32:56.060 --> 00:32:58.720
<v ->But doesn't the law seem to treat breathalyzers</v>

717
00:32:58.720 --> 00:33:01.030
and blood tests the same in that both are deemed

718
00:33:01.030 --> 00:33:02.090
to be consented to,

719
00:33:02.090 --> 00:33:05.550
although for a blood test, it's deemed consented to only

720
00:33:05.550 --> 00:33:08.560
if you have been brought to a medical facility

721
00:33:08.560 --> 00:33:13.483
and you are determined to not have a risk of coagulation.

722
00:33:15.280 --> 00:33:17.280
Both are treated the same under the law.

723
00:33:18.183 --> 00:33:20.200
Both are deemed to be consented to.

724
00:33:20.200 --> 00:33:21.600
<v ->Yes, Your Honor.</v>

725
00:33:21.600 --> 00:33:24.800
<v ->So we should treat breathalyzers and blood tests</v>

726
00:33:24.800 --> 00:33:25.663
to be the same.

727
00:33:26.700 --> 00:33:28.650
<v ->Yes, under the law there, Your Honor.</v>

728
00:33:29.928 --> 00:33:31.660
I can appreciate the difficultness of forcing someone

729
00:33:31.660 --> 00:33:33.360
to take breathalyzer test.

730
00:33:33.360 --> 00:33:34.967
<v ->And so you view the language where it says,</v>

731
00:33:34.967 --> 00:33:37.150
"No such test or analysis shall be made"

732
00:33:37.150 --> 00:33:38.203
to simply be,

733
00:33:40.020 --> 00:33:41.630
I'm trying to figure out what you understand

734
00:33:41.630 --> 00:33:42.600
that language to mean.

735
00:33:42.600 --> 00:33:43.990
<v ->Under implied consent, Your Honor,</v>

736
00:33:43.990 --> 00:33:46.080
that if you don't consent,

737
00:33:46.080 --> 00:33:50.220
you cannot under the implied consent force someone

738
00:33:50.220 --> 00:33:51.350
to take a blood test

739
00:33:51.350 --> 00:33:54.010
but I don't think that at all excludes being able

740
00:33:54.010 --> 00:33:54.980
to obtain a search warrant.

741
00:33:54.980 --> 00:33:57.080
<v ->You say we shouldn't pluck that language out</v>

742
00:33:57.080 --> 00:33:58.280
as a general prohibition,

743
00:33:58.280 --> 00:34:00.300
the language is only there because,

744
00:34:00.300 --> 00:34:02.360
talking in general about implied consent.

745
00:34:02.360 --> 00:34:03.850
<v ->Yes, Your Honor, thank you.</v>