Clerk: SJC-13168, Commonwealth v. Eric Morrow.
-: Okay, Attorney Grant.
-: Good morning.
May it please the court and grant for Eric Morrow.
Your Honors, the question in this case is whether police
in investigating an OUI can obtain a search warrant
to test a defendant's blood for blood alcohol content,
BAC, without his consent
after it has been drawn by a hospital for medical purposes.
Your Honors, I would submit
this is a simple statutory construction case.
The OUI statute grants protection that exceeds those granted
by the Constitution or the Declaration of Rights,
because we know it's not unconstitutional
to get a warrant for blood test
or to do a blood test in exigent circumstances,
but the plain language of the statute requires
the defendant's consent before police direct a blood test
for analysis- -: Well, Counsel,
can I ask, oh, go ahead, Justice Gaziano.
-: You're probably going to ask the same question
but doesn't the statute say,
"At the direction of the police?"
-: It does. Yes.
-: Okay.
So the norm, what you've seen,
I'm sure in practice is there's a motor vehicle accident.
The police have nothing to do with it.
That's litigated.
Then they go and they get a search warrant
or they go and they get the records from the hospital.
You have that hearing you always have
about whether or not it was at their direction, the police.
And they say, no, it was for medical treatment.
The person had a head injury.
How is this different?
-: Well, in this scenario,
we're talking about the hospital drawing the blood,
but the police obtaining the blood
and then testing it, yes. -: Okay.
At the direction of the police,
how was this at the direction of the police?
-: For them to test the blood and the,
-: For them to draw the blood.
They didn't do it. -: Oh.
I'm not arguing that they directed the blood draw.
I'm not arguing that.
I'm arguing that they directed the blood,
the testing of the blood for BAC.
-: And that would have been
where I wanted to focus for a minute,
Counsel, is that it says test or analysis.
Is that correct?
-: Yes. -: Direct,
so the analysis,
the actual testing and the analysis of the,
when the police ordered the blood and received the blood,
they tested it in their own lab, right?
-: Yes, that's right.
They tested or analyzed the blood, either,
both of those words refer to the-
-: Is it accurate that the hospital,
the hospital didn't do a blood test.
I did not, they did a blood test,
but they did not analyze the blood for alcohol?
-: I can't,
I can't be of assistance as to what the hospital did.
What I can answer is that, in this case,
the hospital drew the blood and the police then obtained
that blood via search warrant
and then tested it themselves for BAC.
And what I'd submit to your Honor
that the statute explicitly says is that a test
or analysis will only be admissible
provided it was made with the consent of the defendant
when it was, you know, by or at the direction of police,
which it clearly was here
since the police tested or analyzed it
in the state police crime lab.
And that, for that reason,
it's explicitly controlled by the statute
in that they did this test or analysis themselves
and therefore failing
to get his consent means that -: Well, if I,
if I could ask you, just putting aside
that Bohigian's all about the blood draw.
When you look at the statute as a whole,
and you look at the defendant's right
to be able to have an independent medical exam originally,
and that this is also tied to the language
with the breathalyzer,
isn't it clear,
not to obtain an absurd result inconsistent
with the statute that we're talking about
when the police are doing a blood or a breathalyzer,
not whether or not a week and a half later,
when as Justice Gaziano said,
the blood from the hospital gets into a crime lab
that what did the police do?
Call and ask, are we,
can we test the blood?
And if not, revoke their license for 180 days,
the whole thrust of the statute is
for the defendant's consent
at the time they're going to take the breathalyzer
or the time that blood is going to be drawn.
Isn't it?
-: Your Honor, respectfully, I disagree.
I don't think there is a temporal requirement listed
in the statute.
In Bohigian, your Honor,
I believe that this court found
that the consent provision included a blood draw,
in saying that, you know,
because a blood draw is a necessary prerequisite
to a blood test,
and there are public policy reasons
why we don't want unconsented to blood draws
directed by police,
that the consent provision must also cover blood draws.
But what the consent provision explicitly says is,
"Tests or analysis by police."
And it doesn't say that if they do it a week later
in their crime lab, that that's somehow okay.
I would submit that,
in the scenario that you're talking about, if, you know,
say Mr. Morrow had been told by police, you know,
the hospital took your blood.
We would like to test it. We want your consent to test it.
And if he refused,
then if he had been subject to 24(1)(f)(1),
then he would have been subject to the license loss.
In this case, he was actually not under arrest.
So he was subject to 24(1)(e),
but that I don't think leads to an absurd result.
The legislature had multiple purposes
in enacting the statute,
clearly an overriding concern was public safety,
but it also granted these specific rights to defendants
and the rights were ratcheted up
or sort of more strong depending on the serious,
pardon me, the inverse of what I'm trying to say,
the less serious the charge, the more strong the right.
So for example, in 24(1)(e),
where the person is not under arrest,
that category defendants can refuse the blood test
and not be subject to the license loss.
But if they're in 24(1)(f)(1), and they are under arrest,
they are subject to a license loss
according to the statute.
And that continues to ratchet up
depending on the seriousness of their,
the category that they fall into.
So, I'd submit that, under that statutory scheme,
it's clear that the legislature had multiple purposes
and that an additional purpose
that's obvious here is privacy concerns.
I'm sorry, Justice Wendlandt,
are you trying to interrupt me?
I don't want to speak over you.
-: I am. Thank you.
(David laughs) So, let's just say
that literally that is what the statute says,
that there needs to be consent to the test or analysis.
And let's just say that the statute does make a distinction
when it talks about blood draws
and consent to those specifically,
and that we agree with you for a moment
on the statutory literal words.
Putting that aside,
why is the remedy exclusion?
Given that, as you've conceded,
there's no constitutional right here at issue.
There's no violation of the Constitution.
There's the failure of the officer
who obtained a search warrant
to then also call the driver and say,
"Hey, do you consent to the test or analysis?"
Why do we have to suppress the information at this stage?
-: Thank you, your Honor.
The reason this court should suppress
the BAC test results is because the legislature
in enacting this consent provision
created an exclusionary rule.
It says that if the police failed to,
you know, fulfill the requirements of the statute,
the result is that the BAC test results are inadmissible
and the Commonwealth cites to no case that is like this,
where the legislature has created an exclusionary rule
and then the court just ignores
that it's an exclusionary rule
and decides to allow the evidence in anyway.
I would submit that, oh, -: I have a follow up
on that, so, you're right.
The statute creates an exclusion and it's that the evidence
that the defendant failed or refused to consent to such test
or analysis shall not be admissible against him, right?
So, the failure or refusal to consent, right?
Not that the test or analysis itself, it's for limited.
Or are you saying it's a failed test?
-: Your Honor, you're pointing to a second part, a second,
an additional exclusion.
The exclusion that I'm talking about is covered
by the first few sentences of 24(1)(e)
where it says, you know,
"In any prosecution for violation of paragraph (a),
evidence of defendant's BAC is shown by a test or analysis
of his blood shall be admissible, provided, however,
that if such a test or analysis was made by
or at the direction of police,
it was with the consent of the defendant,"
and that word, provided, creates a necessary condition
before the BAC test result is admissible.
Its admissibility is conditioned
on police getting his consent.
I think that language makes that exclusionary rule.
And then there's an additional exclusionary rule
that has to do with a test refusal.
And I would just add, your Honors, that there's
that additional language that says,
not only do they need to get his consent,
the results thereof were made available
to him upon his request
and the defendant was afforded a reasonable opportunity
to have another such test or analysis made
by a person or physician selected by him.
And the reason I draw your attention to that language is
because if this court were
to find a search warrant exception to defendant's consent,
it would effectively repeal that opportunity
for an independent test by the defendant
because police would do what they did in this case,
which is get a search warrant for the defendant's blood
after it's been drawn by a third party,
test that blood
and never give the defendant this opportunity.
-: Ms. Grant, if I could interrupt you for a minute
with the issue of the direction of the police.
In Bohigian, I understand the majority view.
I don't agree with it,
but I certainly understand the majority view
that the draw is at the direction of the police,
but now, days later, pursuant to a search warrant issued
by a judge, there's going to be an analysis
of what was drawn.
Isn't that just completely different than the situation
in Bohigian, so that we can say,
whatever one might think of the blood draw,
I understand the majority position in Bohigian,
that there's no way that this analysis now is being done
at the direction of the police.
If it were, there'd be a problem.
It's being done, or there might be a problem.
It's being done at the direction
of a neutral and detached magistrate
who granted a search warrant to do the analysis.
-: Your Honor, I would, I would rely on,
you know, Bohigian's interpretation
of what by or at the direction of police encompasses,
which is the, a state actor.
And I don't think that
that changes whether the police are doing it
later in the police crime lab.
It is a state actor.
It's the police crime lab that is testing
or analyzing the blood.
And that is what renders this inadmissible,
absent the defendant's consent.
-: Counsel, there's no question,
is there any question that the defendant
in this case had noticed that they were drawing,
that they were not drawing,
but getting a search warrant for the blood
and doing their own analysis?
And did the defendant have an opportunity
to do his or her own testing?
-: I don't believe that the transcript covers that.
I think, you know, by implication, I don't think,
I don't think he was aware that the testimony below is
simply that the police officer did not ask for his consent
and got a search warrant
and obtained the blood independently.
So, I think the fact
that the police officer never even asked
for consent indicates that the defendant had no idea
this was happening behind the scenes.
So, your Honors, if there are no other questions,
I would rest on my briefs for the rest of my arguments.
And I would simply ask that this court find
there is no search warrant exception,
that because police did not obtain Mr. Morrow's consent,
the BAC results that they obtained
through their efforts would be inadmissible.
-: Can I just ask before you sign off,
were you saying earlier that it would prevent the defendant
from being able to do an independent test?
If, how so?
Because yeah, how so?
-: Well, if the defendant,
so, we know that blood alcohol content diminishes over time,
so the only useful test,
the only meaningful test is going to be one that's done
within a certain period of time.
I, this is not in the record, but I'm not sure,
I'm not sure how one preserves the blood in such a way
that it could be used independently.
There's no evidence from the Commonwealth that, you know,
somehow the police could have preserved vials of blood
that they had for the defendant to do an independent test.
I'm not sure about that,
but if the defendant is never given an opportunity
by even being asked for his consent,
I think that it can be assumed that that opportunity is lost
because it is an ephemeral, you know, test information.
-: Well, but that presupposes
how much blood is actually drawn
by the hospital at the time that it's drawn, right?
I, 'cause I obviously know you can't,
you're not going to get accurate results days later,
you know?
-: Right.
-: If he used the blood that has been drawn
at the time of the draw, then
the defendant- -: Right.
-: Okay.
-: I think we just simply don't have enough information
about whether that's possible and that in this context,
if he wasn't given an opportunity at the time it was being,
was going to be done,
that independent testing opportunity is lost.
Kimberly: All right, thank you.
-: Thank you.
Kimberly: Attorney Haran.
-: Good morning. May it please the court.
My name is Donna-Marie Haran,
Assistant District Attorney representing the Commonwealth.
The motion judge here properly denied the defendant's motion
to suppress these blood tests
where the defendant's blood was drawn by hospital personnel
due to medical reason with no intervention
or direction by the police
and thus involved no state action
and did not violate any
of the state law provisions. -: Okay, Counsel,
how do you get around the analysis piece of the statute?
The word, analysis.
-: I suggest, your Honor,
and I'm using the Arruda case to support that,
once a third party state action, no state action,
a third party intervenes and takes the blood,
the statue is no longer operable.
And in Arruda, the issue there was refusal evidence,
in there, the defendant refused to have his blood drawn
to a medical personnel
and the medical personnel was allowed to testify
and this appeals court found
that they've never interpreted section 23(1)(e)
to apply to a third party private action.
I would suggest- -: But in that case, Counsel,
were they drawing the blood with,
did the hospital or the third-party test for alcohol?
-: No, that case was a refusal case,
but I suggest the law that says, I'm sorry,
your Honor, the law that says, -: No, no, so that was
a refuse, so they didn't test it.
-: No, I would also ask this court
to look at Commonwealth v. McLaughlin,
which I cite in my brief,
there, the hospital did draw and test the blood,
but the Commonwealth called a person from the lab to testify
about the analysis of the blood and the conversion.
Although the hospital gave the raw data
to the state crime lab person,
she testified to the conversion
to blood alcohol level content.
And that court, and again,
it's an appeals court case, found there was no state action
from the draw and therefore it was proper for,
the testimony was properly admitted into evidence
and the blood alcohol evidence was
properly admitted into evidence.
And I would suggest that's the closest thing I could find.
But the Commonwealth's position is, once the blood is drawn
by a third party with no direction,
or at the direction of the police as in all the cases
as I cite the Storella case, the McLaughlin case,
the St Hilaire, the Russo case,
the hospital can do whatever it wants with the blood,
the hospital could have given the blood to the Commonwealth
if they had so chosen.
We did not need to get a search warrant, but at that point,
once a third party has stepped in,
that there's no more constitutional rights
in that 24(e) and (f), which again,
as the judge found, there was also evidence,
no evidence that the defendant refused.
There's no refusal evidence entered into,
at the hearing, and I would suggest Bohigian-
-: Counsel, can I just interrupt you on that though?
Donna-Marie: Yes.
-: One of my other colleagues
asked the question of Attorney Grant the same thing.
So, this really isn't apples to apples with McLaughlin
because there's nothing in the record that suggests what,
that tells us what the hospital did with the blood draw.
Is there?
I mean, did they do a- -: No.
No, your Honor. -: So,
okay, so if we had evidence
that they did some kind of tox screen
and the hospital came back with an EtOH reading
that the Commonwealth could then call someone to interpret,
then we're talking McLaughlin.
We're not talking that.
We don't know what they did with it.
So, we don't even know if there's evidence
that the state could come in and have somebody interpret.
This is the state police taking what they took
and analyzing it.
So again, I go back to Justice Cypher's question,
how do you get around the statute when the statute says
that it has to either be the taking or the analysis?
How do you get around the statute?
-: I get around it by saying that it is referring
to police action.
And once the hospital draws the blood
with no police direction or interaction,
then the statute's no longer operable.
As in all the cases cited in my brief
for when evidence is taken from a third party,
the Commonwealth is allowed to do whatever it wants
to that evidence,
and there's no constitutional issues required.
And I would suggest under the Arruda case and other cases
that I would also extend to the statutory language,
which I think it's clear that- -: So, if,
again, if I could just, -: Sorry, your Honor.
-: Interrupt you on that.
So, at least as part of your statutory interpretation,
the state action is only applicable to the taking,
not the analysis? -: Yes, to the drawing,
No, your Honor, to the drawing of the blood
or the force of a, I would suggest also
for a breathalyzer test,
forcing a defendant to breathe into a breathalyzer machine.
It would apply to them.
But when the state has no direction
of requiring the blood draw,
I think at that point, there's no state action.
And the hospital could have given the blood
to the Commonwealth without a search warrant
if they had so choose, chose,
but they require for their own,
I'm assuming, civil liability require a search warrant.
And that's when the Commonwealth went and got that.
I would also just like to point out that this court
in Bohigian ruled that it was under section (1)(f)
because the defendant refused to get his blood draw.
That's what this court found was,
could not be cured by search warrant
and therefore, for safety reasons,
in under (1)(f) found
that the blood was involuntarily taken
and was not admissible.
Even though we got the,
the Commonwealth obtained a search warrant.
They specifically found that (e) did not apply in that case.
So, I would, oh, and I also suggest there's nothing
in the record to support my sister's argument,
that the defendant does not have an opportunity
to subsequently test the blood
with his own physician or expert.
There's nothing to support her argument
that they did not have an opportunity to.
I can tell the court,
I've done an evidentiary hearing where I know that they can,
but it's not,
I don't have anything in the record to support that.
So, I don't think one way or another,
it could be argued
that the defendant does not have an opportunity
to subsequently test the blood
when vials are taken by the, -: I'm not sure that's,
that's the issue that's being raised though,
I think the issue that's being raised is the lack
of ability to have that independent medical analysis
at the time, -: And I would suggest,
David: At the time it matters.
-: Well, I would suggest, your Honor,
that there's a lot of times where the Commonwealth,
when they get stuck, test it at a lab,
invites the defense to have an expert there.
I would also suggest there's nothing on the record
to suggest that once the blood is drawn,
the way it's kept diminishes the blood alcohol level
in the tube that it's kept in.
There's no evidence of that.
If I am testifying to something outside of the record,
I could tell you the cap they use does that,
but there's no record support.
So, I cannot say that.
I can- -: Those are all,
those are all excellent points.
I understand.
I'm just not sure that's what the questions are getting at.
The statute, one of the things that is available
to the defendant is say
that they just don't trust the breathalyzer
because of many, many reasons that they might not,
that they have a right to an independent medical test,
a blood test,
and that captures what the blood is at the time,
independent, what you're saying is accurate,
but it's the same source.
-: I guess I'm a little confused on, I'm sorry about this.
I don't see a breathalyzer machine ever coming
into play here because I can't imagine a situation
where a medical personnel would have the defendant submit
to a breathalyzer particularly.
-: No, no. -: Well, it might not,
but it is in the statute
and it, -: Yeah, so,
-: Rides along with the blood test.
So when, even when you get to section (f)(1),
they're still talking about both,
the breathalyzer and the blood test.
And they're talking about analysis also.
So, even though Bohigian only may have applied section (e),
I don't understand why it wouldn't also apply
in section (f).
And I think I'm making Justice Gaziano bounce around
in his seat.
(group laughs)
-: Again, the Commonwealth's position is,
once the hospital draws the blood for medical purposes,
there's no more state action involved.
And therefore, section (e) and (f) no longer apply,
since there's no more state action involved
and indeed the hospital, if they so choose,
could simply hand over the blood to the Commonwealth
to do what it wants, as in other cases,
as the bullet case with Storella
or other cases in which the physical evidence is handed over
to the Commonwealth and the Commonwealth is allowed
because there's no state action to do whatever testing
or subsequent analysis it feels
to do, -: So, if the Commonwealth
wanted to conduct a genetic test of this individual
to see if he was, you know, I don't know, something,
your position is the Commonwealth would be able to do that
so long as the hospital handed it over,
regardless of their HIPAA violation.
That's what you're- -: Yes, but that would be,
yes, your Honor,
'cause that'd be a civil action
I guess the defendant would have against the hospital
if he so chose, but for criminal,
the law is clear that once a third party,
which has no direction or order by the state,
there's no state action involved, and therefore,
the Commonwealth can do whatever it wants to evidence
that's handed over,
such as the firearm in a- -: Well, let's just say
that we disagreed with you,
that the Commonwealth wouldn't suddenly start keeping
a genetic bank of individuals
that had been arrested for OUIs.
Do we really need to adopt that extreme position
in order to find your way here?
-: I don't think you have to. No, your Honor.
-: So, can I ask you then instead
about the exclusionary rule?
I'm sorry, Justice Gaziano, did you want to-
-: No, it's fine.
-: I would suggest the exclusionary rule would not apply here
because it, I think it's clear,
and I would disagree with my sister
that privacy is the clear emphasis of the statue.
I think it's quite clear, the emphasis of the statue,
as first Justice Lowy said
in his dissent was to allow the Commonwealth
to enhance the safety of our roads
by deterring substance abuse driving,
and to quote him, "The collection and use
of the blood alcohol evidence
in the statute is the principle engine of the statue."
I would also suggest that safety concerns
that this court noted in Bohigian is the main concern
with the forced blood draw or forcing people to do so.
And I would suggest that neither of that occurred here
and therefore, the exclusionary rule should not apply
because there was no safety concerns,
which I think is the big impetus of the statute
of which has court found.
And also because as Justice Lowy stated in his dissent,
the purpose of the statute was actually
to allow the Commonwealth and give the Commonwealth tools
to prosecute people for driving under the influence.
And indeed, the implied consent would just,
I would suggest go against my sister's argument
that it's privacy concerns
where the purpose of that statute is,
by driving on the roads of the Commonwealth,
you're implied to have consented to the breathalyzer test,
unless you do not, unless you refuse.
And if you refuse,
then you have the 180 day loss of license,
which I would suggest,
if this court adopts my sister's argument,
then the Commonwealth could go back
and suspend the defendant's license for 180 days then.
I do want to draw the court's attention
that there is legislative pending
in the Thomas Clardy Law that will,
does address search warrants.
And it specifically puts in that the police can do a,
get a blood draw through a search warrant.
And that is currently pending in front of the legislative,
the governor recently put that bill,
presented that bill to be decided upon.
It includes- -: Counsel,
how does that help your argument?
It seems to suggest a need for lead,
for further legislation to clear this up.
-: Well, honestly, I think it address
what this court held in Bohigian to overturn it,
to say that you can get a search warrant
to make an involuntary draw. -: Right.
Right.
So, if that's the case,
why does that not continue to apply?
I mean, if they needed the statute to fix it,
then don't they need it to fix this also?
-: I just don't think- -: It would, it's the,
-: I'm sorry, did I interrupt somebody?
-: No, I'm interrupting.
It's the blood draw, right?
-: Yes.
It's the blood draw.
And I also don't see the legislative purpose
or this court specifically addressing
that they thought that they prohibit the Commonwealth
from legally obtaining blood that is drawn by a third party
that is subsequently tested at a crime lab,
that that is what the statute was intended for.
I don't believe that's a primary goal of the statute.
And I don't believe that the legislative intent
of the statute and the defendant makes no effort to explain
when submits to a test,
refers to blood drawn by hospital personnel,
that's subsequently tested at a crime lab.
If there's no further questions,
the Commonwealth will rest on its brief
and ask this court to affirm the motion
to suppress the order denying the motion
to suppress the defendant's blood test.