-: SJC-12858
Commonwealth V. Charles Bohigian.
-: Ms. Opperman,
you may proceed.
-: Good morning justices, Mr.Chief Justice
and may it please the court,
My name is Erin Opperman
and I represent the appellant, Charles Bohigian.
And though the appellant raises several claims,
we are here primarily because the trial court erred
when it denied Mr. Bohigian's motion
to exclude blood alcohol level results
taken from tests on his blood that was forcibly taken
without his consent and against his will
in violation of G.L. Chapter 90, Section 24(1)(e).
-: Is there anything in that statute
that says you can't get a warrant
if consent is not given.
-: The statute is silent as to the word warrant
or obtaining a search warrant.
What the statute 24(1)(f) is not silent to is
that such a test,
if the person refuses to submit to a test,
shall not be made.
And I think looking to 24(1)(f) and 24(1)(e) is
all this court really needs to do to determine
that the lower court erred
when it denied Mr. Bohigian's motion.
-: When you look at the intent of the legislature
which we probably should,
and the words,
I get your argument that you have
to look at (f) and (e) together,
which have prohibitions in both.
But when usually when you deal with (1)(f),
it's the blood draw alternative, right.
So if someone comes in
they're offered a breath test,
the police have to say
you could also go and get a blood draw
and the person, typically they give them those rights
and the person says well I want a blood draw
and they say well here's a phone book,
go find someone and it doesn't happen.
But if we look at why it was set up,
isn't the purpose of the legislature in (1)(f)
was to give an alternative for a blood test,
to test the liability of the breath test device?
-: I don't believe that that was the intent
of the legislature.
I believe that the intent of the legislature with respect
to section (1)(f),
was to ensure
that it was known that an individual
under arrest for operating under the influence
had the right to refuse a chemical test,
whether that chemical test be a breath test or a blood test.
And the language in the very beginning of (1)(f) says,
obviously discussing implied consent,
that an individual shall be deemed to have consented
to submit to a chemical test or analysis
of his breath or blood.
So, I don't believe that section (1)(f) is something
that provides an alternative.
It is--
-: Wasn't it in a response to the opinion of the justices
because they were concerned
about the fifth amendment problem
with the fact that the non-consent
would be deemed incriminatory?
Wasn't that what's driving the way this is phrased?
-: Section (1)(f) was enacted prior to the opinion
of the justices to the Senate.
Justice Kafker: Okay, so prior.
-: And that opinion dealt
with a potential change
that the general court was then considering
to make admissible evidence that a defendant had refused
to take a test.
And I think that that particular desired change
by the general court and seeking an opinion from this court
on whether or not that would be constitutionally problematic
animates the intent of the legislature repeatedly
over the last 60 years
to forbid forced blood draws
of individuals suspected of operating under the influence
at the hands of the government.
-: And just so we're clear, this has nothing to do
with the Constitution, state or federal,
and it only applies to OUI prosecutions.
So if there was a motor vehicle homicide, manslaughter,
a blood test, based on a search warrant
would be permissible, right?
-: I don't necessarily agree with that.
Obviously in this-- -: Why not?
Why not?
-: In this case, Mr. Bohigian was charged
with both operating under the influence under section (a)
and also under section 24(l),
operating under the influence, serious bodily injury,
So I will address those two particular charges.
-: No, but tell me why you won't concede
that it wouldn't apply to a motor vehicle homicide
or manslaughter?
-: I think that the arguments relative
to motor vehicle homicide and manslaughter
by operating under the influence
are a little further removed
than a prosecution under 24(l)
but I do believe that in all of those--
-: But doesn't the statute say in any prosecution
for violation or offense is set out in (a).
-: It does say that.
-: So, isn't Justice Gaziano right, though,
it's just limited to those set out in (a), right?
-: I do not believe that's right.
And the reason I do not believe that's right is
because 24(1)(e) was enacted in 1967.
That language was reconsidered,
albeit the language regarding the requirement
of actual consent prior to admissibility
of any blood alcohol tests was kept in place
every time the court,
the general court reconsidered that statute.
It was revisited in 1971, 1980--
-: But I don't understand.
-: 1992
-: But if the language itself is expressly limited
to offenses set out in (a),
why would it matter what its timing is?
-: Because my pointing out the year
that that statute was enacted is because particularly
with section 24(l),
that was enacted well after 1967.
When the legislature promulgated that specific language
"in any prosecution for a violation of paragraph (a),"
those other statutes didn't exist.
Granted, it would have been--
-: Write a statute after that
and this statute only expressly applies to these others,
why would you need to deal with the issue?
-: I'm not sure I understand Your Honor's question.
-: This statute about this consent issue says it's limited
to section (a),
You say section (l) was drafted afterwards
but why would anyone care about this
because it's not referenced,
they're not cross referenced.
-: The beginning part of section 24(1)(e) deals
with the admissibility of results of a chemical test.
It puts forth
that a chemical test's results are presumed
to be reliable and presumed to be evidence
of how intoxicated someone may or may not be.
And what it in effect does is,
in operating under the influence cases
or in cases where all the elements
of operating under the influence need to be proved,
it allows the prosecution to present the results
of a blood alcohol test without an expert.
It allows the prosecution to enjoy a presumption
that a blood alcohol level between 0.05 and 0.08,
that there is a presumptive, rebuttable inference
that someone is intoxicated.
It allows the prosecutor to receive jury instructions
at the end of the trial,
that any blood alcohol level
above 0.08 is evidence of a crime.
If this court were to determine
that section 1(e) did not apply to other crimes
which required proof of each element of operating
under the influence,
not only would a defendant not enjoy the right of refusal
and the right
or I guess would not be able to require
that he or she have consented prior to admissibility
of that evidence,
the evidence wouldn't be admissible at all.
-: I get it if, that makes (l) complicated
because that cross references operating under the influence
but if this were just a vehicular manslaughter case,
that doesn't require proof of operating under the influence,
why would we be dealing with this statute at all?
-: And I would only submit to the court that
if the charge was motor vehicle homicide
by operating under the influence
and it was necessary to convict an individual of that crime
to prove each and every element
of operating under the influence,
that all of the presumptions
and requirements found in section 1(e) would also apply.
-: I guess I have a much more basic question.
Do we really have anything to do with the discussion
about consent when there's a neutral and detached magistrate
who's determined that there's probable cause to take blood?
-: And by we, you mean this court?
-: I just think that
when the legislature is drafting something
and dealing with consent in this area
that you have to contemplate that the ability,
if there's probable cause,
to go before a neutral and detached magistrate
and get a warrant,
such that the whole issue of consent
really doesn't come into play.
-: I would say that
to adopt such an argument would be
to completely ignore the statute entirely,
and that's certainly not something
that this court is inclined to do,
to read a statute, such that it has no purpose whatsoever.
-: Isn't the strange answer to that question is,
'cause you can get a search warrant for anything,
body cavity searches, right?
-: Apparently, yes.
-: And what we've said a lot of times is
the answer is a search warrant in all the CSLI cases
and the like.
Isn't the answer to Justice Lowy's question perhaps
yeah, you can get a search warrant
and you could take the blood
but it's never gonna be admissible by statute
-: I think that's correct.
I think that there are,
when you're addressing a search warrant
in this particular context,
in the end you're really just evaluating
or contemplating two different statutes.
You have 90, 24(1)(e) on the one hand
and you have the more general statute
that governs search warrants, 276 Section (1).
-: But that goes back to what Justice Kafker was asking you
because on one hand, you're arguing this is statutory,
strictly enforce the statute,
and then you're saying well, broadly construe the statute
to eliminate it for all types
of drunk driving types of offenses, no matter what they are.
-: I am suggesting that this court
should construe section (1)(e) to apply to section 24(l)
and that's really the only other statute that's at issue
in this particular case and--
-: No, that's fair, that's what's before us
but as you well recognize,
what we say in this case will have ramifications.
-: I do understand and--
-: That's why we're asking these questions.
-: Before you leave 24(l) because that seems hard to me
because I understand 24(l) talks
about operating under the influence
but it's not a 24(a) offense, right?
And this whole statute begins
by saying it applies only
to 24(a) offenses, doesn't it?
-: And again, I think that in reality,
though it's imperfect,
the explanation is very likely
that section 1(e) was enacted well before section 24(l).
If the legislature had intended
for the presumptions regarding intoxication
based on a blood alcohol level test,
the admissibility of a blood alcohol level test
without an expert presuming that it's admissible
and relevant,
that is really what the statute is initially about.
That this test can be admitted
and there's a presumption
that the jury will be instructed on,
that it is relevant to intoxication,
the level of intoxication
and in the end, it's a chemical test.
There is usually in a situation like this,
a prosecutor would have to admit an expert
to explain what this test is, what it determines,
why it's relevant to an element of the charge
but the statute itself allows the court
to instruct the jury that they must presume
that it's relevant to this particular thing
and that from this information,
they can determine that one of the elements
of the crime is met.
If that wasn't applicable to these other charges
but I will speak specifically to section 24(l),
it would upend those prosecutions
and it makes sense that the presumptions, the inferences
and the rights that accompany those presumptions
and inferences would apply in any case
where each element of operating under the influence
must be proved.
Because in the end both parties benefit
from the application of 1(e) to section 24(l)
-: I wonder though, I'm still worried about the timing
because the opinion of the justices deals
with this fifth amendment problem
and I understand there's gonna be a fifth amendment problem
whenever you deal with the failure to consent
but I'm not sure that applies in 24(l).
I'm not sure the same fifth amendment issues
are raised there
'cause I haven't thought it through
but neither sides brief this either.
-: I guess I don't see how they wouldn't apply.
I think in the opinion of the justices to the Senate,
this court,
I don't know that it found
that there would be a fifth amendment issue.
I believe that what the problem was was under article 12
and that was that a defendant in Massachusetts
certainly enjoys a broader protection.
-: You're right.
It's an article 12 not a fifth amendment issue.
-: So I think refusal to conduct a test of this nature
which provides some insight into the thought process
of the suspect, eventually the defendant,
would always be an article 12 issue,
and it would apply in section 24(l)
in a much broader class of crimes
where a defendant is asked to make a decision
of whether they want to do something
which they may believe would incriminate them.
It's the same reason why a refusal
to conduct field sobriety tests would not be admissible
in any charge in a crime that contains the elements
of operating under the influence.
I think that if the legislature did not want section (1)(e)
to equally apply to 24(l),
which is primarily an operating under the influence crime,
it really only contains an additional element of injury
to another party,
something unrelated to the considerations
in the operating under the influence statute,
that the legislature would have said so.
And I do believe that this court could not say
that it would allow a prosecutor in a prosecution
for section 24(l) to enjoy the presumptions
and the assumed relevance of the blood alcohol level test
if it did not also conclude that consent was required
prior to admitting a test in a prosecution
under that statute.
-: Okay, thank you.
-: Thank you.
-: Miss Haran.
-: Good morning, may it please the court,
Donna-Marie Haran, Assistant District Attorney,
on behalf of the Commonwealth.
The trial judge here properly denied the defendant's motion
in limine to exclude the defendant's blood test results
where the Commonwealth obtained the defendant's blood
through a search warrant and not through consent.
So therefore (1)(e) and after do not apply to this case.
-: If I can walk you through 24(1)(f)(1),
do you agree that or is it your view
that a search warrant can be used to obtain a breathalyzer?
-: Yes, I think a search warrant could be used
to obtain,
Yes, to force a defendant to take a breathalyzer test,
I don't--
-: Where it says, "If a person arrested refuses to submit
"to such test or analysis having been informed
"that his license or permit to operate motor vehicles
"shall be suspended for a period of at least 180 days,
"no such test or analysis shall be made."
How do you understand that language?
-: I understand that if you're going under consent,
then the applied consent that applies
when you drive in Massachusetts, you're implied to consent
to all breathalyzers or blood tests.
I take that as if a person refuses to consent
that no test shall be made.
I don't see it as exclusive, mutually exclusive,
saying you can still get a search warrant
and I would suggest if you look through the cases
throughout this court,
Commonwealth versus Angivoni, Commonwealth V. Dennis,
which (murmurs) of The Appeals Court,
they all recognize that you can obtain a blood test
through a search warrant
or you can obtain it through consent.
There's two different avenues
from which you can obtain a blood alcohol level.
And it's been repeatedly held that you can obtain it
through a search warrant.
And I ask that you look at Commonwealth V. Blais,
I just think there's two separate avenues you can go through
and if you go through the applied consent
which is outlined in the statute
and if the defendant refuses
and you don't get a search warrant,
then it's not admissible.
It's just two different avenues you can use to obtain--
-: Okay, well let's discuss that avenue.
So, if it were to be, if the individual had consented,
let's look to the top.
Is it true that, note where it says provided further
that if there is to be consent
or if there's to be deemed consent,
it has to be done at a medical facility, correct?
-: Yes.
-: And provided further that "no person who is afflicted
"with hemophilia, diabetes
"or any other condition requiring the use of anticoagulants
"shall be deemed to have consented to withdrawal of blood."
So, do you agree that if there is to be consent,
there first has to be a determination
that the person does not have hemophilia, diabetes
or another condition requiring the use of anticoagulants.
-: If you're going to consent, yes.
-: Okay.
We don't permit somebody to consent
to a blood test unless we know
that the person does not have those conditions, correct?
-: Under consent, yes.
-: So, the search warrant affidavit makes no reference
to whether this particular individual is afflicted
with hemophilia, diabetes,
or any other condition requiring the use of anticoagulants.
Does it?
-: I don't believe the search warrant did. No, Your Honor.
-: So how can, if the law does not permit an individual
to consent
without such a determination,
how can the law permit it to be done pursuant
to a search warrant.
-: A little bit confusing question
but it says, "shall be deemed to have consented unless,"
it's talking about consent, implied consent.
-: But the law is saying is that even,
we're not going to allow you even
to consent to it unless we know
that if we take your blood,
we're not going to be in a situation in which we're going
to be causing you the risk of serious medical harm, correct?
That's why they basically say
we're not even gonna allow you to consent unless we know
that we're not gonna be in a situation
in which you're gonna have a problem
with having your blood coagulate.
-: Well, I understand that, Your Honor,
but if you have a search warrant and go to a hospital
and the medical personnel which has to withdraw the blood,
takes the blood,
if there is an issue with that,
I would believe that the hospital
would then tell the officer
you're gonna put the person's health at risk
if you take the blood.
-: Well, how is the hospital supposed to know that.
-: They're medical professionals, Your Honor.
I would assume they would know
if the defendant has a medical condition
which would make it dangerous
for them to withdraw the blood.
-: How are they to know that?
Unless the person tells them.
The medical records,
the person may have had no previous medical history
at that hospital.
-: There's, sorry excuse me,
how is an officer supposed
to know that, Your Honor, if the defendant doesn't consent
and they don't tell the officer
that they have this medical condition?
-: The law basically says we don't even allow you to consent
unless the officer says do you have hemophilia, diabetes
or any other condition requiring the use of anticoagulants.
If the answer is yes, I have those conditions,
we don't even allow you to consent.
-: I frankly have never seen a case of that
in the consent form, Your Honor, but...
-: I'm just reading the statute.
-: I understand that, Your Honor.
-: So, I guess my point is -: I was just
-: My point is if the law does not allow you to consent
without being certain of these conditions,
how can the law permit a magistrate
to order it pursuant to a search warrant
without having that same assurance.
-: I think the law allows it, Your Honor,
'cause the case law has consistently held
that there's two avenues you can go with,
consent or a search warrant.
And with the search warrant,
then you have a detached, neutral magistrate determining
whether there's probable cause to obtain the blood
and allows you to do that,
whether this section,
I would assume that a hospital personnel...
-: But you can't, I mean, you've been to a hospital.
You know that the hospital records are not,
unless you've been to that hospital
or unless you're part of that hospital network,
they're not necessarily gonna have a record of who you are
or what your medical conditions are.
-: The answer's gonna stay the same, Your Honor.
-: I understand. (Haran drowned out by Justice)
But you see there's a problem.
-: I understand, I can see that as a problem
but I think that my answer's still the same,
that you can go under both avenues
either a search warrant or consent.
-: How would that play out
if there were a grand jury request or a Levine Hearing?
Would the medical condition of the suspect become a factor
in the hearing?
-: After the taking of the blood, Your Honor,
I would assume.
-: Or before.
-: Well, I don't think it's possible to have a hearing
prior to taking a person's blood due to the exigency
of the alcohol level in the blood.
-: Right, although didn't the US Supreme Court say
it was not accepting exigency
with regard to blood alcohol dissipation.
-: For a warrantless search.
-: Warrantless search.
-: They said they would not accept exigency in itself
but then in Levine,
in the matter of Levine itself, it says,
for the purpose of testing (murmurs)
I can't say the word right, characteristics,
meaning not exigent characteristics in this court
and Miles further elaborated on Levine saying
that that is for when time is of the essence
and it's a temporary condition,
they allow for a search warrant
without an evidentiary hearing due to the exigency nature.
So here given the blood alcohol level is
a exigent circumstance with a warrant
'cause you have a detached, neutral magistrate determining
whether there's probable cause, it's not warrantless.
They determine that a hearing would not be practical.
-: Justice Cypher, are you done?
-: Yes sir.
-: So in every ordinary OUI case
this whole statute could be avoided
by just getting a warrant
in every single case, right?
-: You could, yes.
-: So this whole jurisprudence we've developed is
everything can be avoided,
and maybe that's just 'cause of the opinion
the justice decisions were worried about,
the effect of refusal of consent,
so just, from now on after this case,
'cause there's always gonna be probable cause most likely,
so basically you've gutted the statute.
-: I don't believe we've gutted the statute, Your Honor,
and I believe, as in this case,
the state police clearly believed
that they could obtain a search warrant
and therefore, thus in the past years they could have
in every OUI case obtain a search warrant.
Whether they would do that or not,
I would deem as not practical in every case.
Given the serious nature of the victim's injuries
in this case,
they determined that a search warrant was necessary.
And I would say you look to the purpose of the statute
and Commonwealth V. Richards out of this court recently,
in looking at the statute as a whole,
now there, they were looking at the license revocation
for refusal to take the BT,
but they were looking at the statute a whole
and said that, "The statute is
"to effectuate the Commonwealth's interests
"and obtain reliable, relevant evidence
"by inducing a drunk driver to take a breath test
"and promotes the safety of the highways to remove--"
-: But it's an elaborate working
around the article 12 problem,
but you've solved it now by get a search warrant,
you don't have to worry about article 12.
Maybe, you're right, maybe.
But it just seems pretty dramatic.
The statute can basically be eliminated.
Just go to the magistrate every time you got an OUI case
and you'll get blood taken.
-: I believe through a search, we get numerous things,
we issue search warrants numerous times
because we don't have consent, that's another--
-: I guess the issue was what the statute says
because of course you need a search warrant
unless there's a prohibition.
So what I understand,
the discussion we were having
with counsel before was you could limit 24(1)(e)
by saying this isn't a prosecution in paragraph (a)
but the problem you've got is if you go to 24(1)(f),
what the chief raised,
he discussed that that language about anticoagulants
but when we go further down it says
if the person arrested refuses blah blah blah
and then it says, "No such tests or analysis shall be made."
Right?
-: Yes and I interpret that if you go
under the implied consent.
That's the portion of the statute which is
this is what that's referring to,
that when you drive on the highways of Massachusetts,
you're implied to have consent.
If you don't consent then no test shall be made
under the implied consent.
-: I understand your argument
that this is just completely different than consent,
just like if you're receiving medical treatment
and within the course of the medical treatment,
there's blood taken,
that it has nothing to do with consent
but it does the raise the question
that Justice Kafker was getting at.
We have habitual drunk drivers who
if they know anything,
they know not to take the breathalyzer test.
-: Yes Your Honor.
-: And there's a lot of public safety concerns
about habitual drunk drivers
who know not to provide the strongest evidence.
Why is it that all these years that we've had this problem,
sometimes you'll see somebody with 10, 15 priors
that no one ever went and got a search warrant before.
-: I just think it shows the police's discretion
in this matter,
in that, this was a particularly harrowing accident
which led to,
-: But that's my point.
My point is there are really dangerous situations,
I mean I had a case right in front of me, an OUI 10th
and the person went right through the light,
hit an ambulance and people were really hurt.
No one went and,
-: I believe they could have, Your Honor.
Unfortunately, they did not but I believe under--
-: I don't know how you're gonna answer the question.
It's not a fair question
but it's in Justice Kafker's question.
Why didn't this ever happen before?
We've got this whole elaborate statute
that allows not only refusal of the breathalyzer
but its inadmissibility,
and here we are with a judicial response system,
a warrant may be moments away.
-: In my case research,
I've never seen one under the search warrant
but as I've noted,
they all mentioned you can get blood one of two ways,
through a search warrant
and then the cases always talked about, consent.
For whatever reason, I don't know
why this issue has never popped up until now
but it has and I would suggest based on the cases
that I've cited in my brief,
that it's clear that you can get a search warrant
for blood and you can get an involuntary
-: Well, the cases aren't OUI cases
that you're relying on, right?
-: No, they are.
Dennis was an OUI case.
-: Dennis, gimme the facts of Dennis.
-: Give me one second.
Angivoni, the 1981 was an OUI case
but they all talk about consent.
They go on to--
-: Right, no, we haven't dealt with this issue.
-: No, I've never seen a search warrant.
They all say you can either get a search warrant
or go consent,
and then the remainder of the decision talks about consent.
-: Are you at all, say you don't win outright,
and I'm not saying you won't.
I just don't understand this yet.
What about the idea that this statute is limited
to OUI offenses and 24(l)
or a vehicular homicide case would be outside of that.
Do you find that persuasive
or is it an all or nothing issue for you?
-: Well I find persuasive when you're asking my sister is
that she said 24(a) was done years ago
and then they made 24(l),
the fact that the legislature didn't,
having 24(a) they didn't say refer to 24(a), (e), (f)
in its statute, I think speaks volumes
that that was not their intent.
So I would suggest that their intent was clear
if it was crafted after the 24(a), (e) and (f),
that it doesn't specifically direct you to go back to that.
I think it's clear what legislation intent was there.
-: So, in the world you want us to create,
or what you say the law permits,
is that whenever there is somebody accused
of being a drunk driver who refuses to take a breathalyzer
or a drug test,
you can go (murmurs) seek a warrant
and get a breathalyzer or a drug test.
-: Yes, your honor, through a search warrant.
-: And do you agree that that would be a fundamental change
in terms of how, at least presently,
the world seems to work?
-: I don't think that's a fundamental change, your honor,
I believe
-: Are you saying that police routinely are seeking
search warrants for either
blood warrants, -: No, they don't routinely
-: or breathalyzers? -: But I think in serious cases
as in this one they do and they did.
-: This is the first time we've seen it.
And in Angivoni, was that a search warrant case,
that's an older case.
-: Yeah, no I have not found a search warrant case
but they all--
-: So this is the first time we have a search warrant
for either blood or
-: Yes, that I could find in Massachusetts.
-: And with regard to a breathalyzer,
can you understand the challenges
of having a non-consensual breathalyzer.
-: I can appreciate that would be very difficult, Your Honor.
-: But doesn't the law seem to treat breathalyzers
and blood tests the same in that both are deemed
to be consented to,
although for a blood test, it's deemed consented to only
if you have been brought to a medical facility
and you are determined to not have a risk of coagulation.
Both are treated the same under the law.
Both are deemed to be consented to.
-: Yes, Your Honor.
-: So we should treat breathalyzers and blood tests
to be the same.
-: Yes, under the law there, Your Honor.
I can appreciate the difficultness of forcing someone
to take breathalyzer test.
-: And so you view the language where it says,
"No such test or analysis shall be made"
to simply be,
I'm trying to figure out what you understand
that language to mean.
-: Under implied consent, Your Honor,
that if you don't consent,
you cannot under the implied consent force someone
to take a blood test
but I don't think that at all excludes being able
to obtain a search warrant.
-: You say we shouldn't pluck that language out
as a general prohibition,
the language is only there because,
talking in general about implied consent.
-: Yes, Your Honor, thank you.