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SJC 13384, Commonwealth v Bradley T. Zucchino.
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[Chief Justice Budd] All right, Attorney (indistinct).
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Good morning, Chief Judge Budd.
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[Chief Justice Budd] Good morning.
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Justices, may it please the court.
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As always, it's an honor to appear before you.
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This case presents the question,
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in what OUI prosecutions is consent to state testing
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and analysis of blood required
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under Chapter 90, Section 24(1)(e)?
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And the answer to this question, Your Honors,
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is also going to determine when (clearing throat)
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in what cases did the legislature determine
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that refusal evidence is inadmissible?
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In what cases did the legislature determine
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that BAC evidence should be automatically admissible,
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that the prosecution should be spared the obligation
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of presenting a live witness to establish the BAC,
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and instead use a certificate of analysis,
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in what cases did the legislature intend
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presumptions of impairment or non-impairment to apply?
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What cases should the police officer's arrest decision
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be protected and comparative testing available?
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Okay, so that sounds like a lot of things to think about,
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but can you tell me why we shouldn't just
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look at the plain language of, I think it's...
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Is it C?
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Let's just look at the plain language of the simple OUI.
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Sure, sure, yes.
Right?
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That's what you want us to be looking at, right?
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Well, yes, I want the court to look at the, first,
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as we should always look at the plain language of 24(1)(e),
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which is the implied consent,
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which is the statute which imposes a consent requirement,
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and to do so within the overall statutory scheme, so-
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Because if you don't do the overall statutory scheme,
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then you don't have an argument, right?
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Well, I don't know, I don't know,
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because it's actually my belief
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that if you really look at 24(1)(e)
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through the common phrases
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that are used within that statute,
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the reading which I propose is proper,
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is I would say natural and perhaps even plain
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from the statute-
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For a violation of paragraph A, right?
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That's the-
Yes, yes, that's right,
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in a prosecution for violation of paragraph A.
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And it doesn't say elements,
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like some of the other statutes.
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Right, right, yes.
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Although I don't think that it's uncommon in,
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you know, legislative acts to refer
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to other provisions by reference.
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You know, for instance, I mean,
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if you look at the jurisdictional grant for district court,
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I mean, everything is listed by,
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you know, statute as opposed to
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by particular names of charges.
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So what we're talking about here
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is a prosecution for a violation of paragraph A.
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So when we look at what is a prosecution for, paragraph A,
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what we're talking about really is a prosecution for OUI.
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And what I would first point out
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is there's really two statutes at issue here.
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There's 24(l) which is the serious bodily injury statute,
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and 265, 13-1/2.
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In fact, begin with 13-1/2, that statute itself uses
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the same exact incorporation language as does 24(1)(e).
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It defines OUI by reference to paragraph A 90-
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But what do we make of the language in Bohigian?
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So I think that the language in Bohigian
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was sort of the side issue,
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because Bohigian was decided,
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fully pursuant to 24(1)(f),
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wholly apart from 24(1)(e), and so-
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Wasn't one of the charges in Bohigian 24(l)?
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Yes, it was, yes, it was,
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Justice Wendlandt.
It wasn't dicta.
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It was clearly part of the holding.
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Or can you explain-
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Sure.
How you're
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differentiating that.
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The way I understand what becomes precedential
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and what doesn't,
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depends on what is essential to the holding,
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and the holding was that
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the defendant's consent was required.
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And that holding was arrived at
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pursuant to 24(1)(f) wholly apart from 24(1)(e).
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And so whether 24(1)(e) applied or not
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was really not necessary
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to the court's resolution of Bohigian.
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And, you know,
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I certainly understand the sort of like arms-length appeal
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of looking at 24(1)(e) that way,
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although I do note that the court's comments
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regarding 24(1)(e), before ultimately moving on to 24(1)(f)
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were not supported by any citation to authority, at all.
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And thus, essentially overruled sub silentio
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all of the case law from 1989 until Bohigian,
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all of which presumed that 24(1)(e)
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applied to all OUI offenses, not just simple OUI.
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And I think that there's a preference
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for not overruling cases sub-
I'm sorry, can you
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list the cases that you're talking about?
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Yes, that would be...
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These cases are listed within my brief
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at page 18 through 19 and 47 to 48.
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And they are Commonwealth versus Ames,
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Commonwealth versus Woods, Commonwealth versus Avides.
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Commonwealth versus McCravey, Commonwealth versus Davidson,
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Grivet, Smith, Arruda, Carson.
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All of those cases.
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Yes, yes, yes.
You say all of those cases,
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counsel, but I'm not gonna go seriatim through all of them,
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but they really weren't the issue here.
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I mean, I could just tell you Arruda was the nurses
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that just kept asking,
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and whether it was state action versus non-state action.
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So it wasn't really the issues that we have here.
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Sure, so in that, you know,
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perhaps in that regard, it's similar to,
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you know, it was sort of adjacent to the ultimate question.
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Sure, but if we're looking at,
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and you're looking at Bohigian-
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Yes.
Particularly,
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and you're saying it was a side issue,
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I don't know that I would agree with you,
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because the court really went to great pains to say,
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we're not construing
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this other serious bodily injury component.
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And that was a big deal.
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So just now, if we go and just look
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at the statutory interpretation
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and the stuff that we've used for years and years and years,
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why doesn't it make sense
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that we wouldn't read the consent provision
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in the serious bodily injury?
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Because it's a far more serious charge.
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And even though the basic stem, elemental stem,
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is the same as simple OUI, why doesn't it make sense?
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And I'll add one other question for,
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one other part of that for you.
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Clearly if you read and you claim that,
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or we say that the legislature
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is aware of what we say and what we do,
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they certainly could have since Bohigian
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and they could have since Moreau said,
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"Hey, we need to make this explicit
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"in the event that rather than going sub silentio
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"and using all of these wonderful Latin phrases,
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"we could just make it explicit."
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Sure, so I think that the principles
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of statutory construction that we look to is,
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has its most force when the legislature
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has actually looked at the statute and revised it,
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but the revision didn't go to
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the issue here before the court.
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Just because
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I would submit that the focus of Bohigian
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was on 24(1)(f) that, you know,
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one would have to sort of like mine the decision
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to really get to the 24(1)(e) language.
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And I don't know that the legislature had that
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as sort of as pressing a concern
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as it would've had if 24(1)(e)
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were the entire basis for the opinion,
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or if there was a case that held specifically on its merits
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that 24(1)(e) didn't apply.
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So, but here we are doing it now.
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So I
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(indistinct) Bohigian.
Yes.
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So I know that that was not the direct issue.
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Yes.
But here we are now.
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Yes, for sure, for sure.
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With the benefit of briefing.
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Right, and so I still wanna get to
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how we get past the plain language.
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Okay.
That says it's only
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focused on.
I'm gonna help you with
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that, I'm gonna help you-
Yes.
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With that.
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So 24(1)(e) was enacted in 1961,
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and the version of the statute at that time
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had been in effect since 1931, or yeah, '31.
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And in 1931, that was the first time that the statute
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kind of like parted the Red Sea.
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At the time, prior to '31,
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the statute was omnibus in maybe even a worse way
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than it is today in the sense that
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it listed a bunch of offenses.
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It listed OUI, false licenses,
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leaving the scene of an accident, et cetera, et cetera.
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And then in '31 they said, let's pump the brakes here,
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and let's separate this out,
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and we have 24(a) offenses, which are OUI offenses;
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and 24(b) offenses, which are non-OUI offenses.
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And so that's where that dichotomy first arose.
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And so what's most notable,
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and this is where I think
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the greatest weakness of the government's argument
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that this is the, you know,
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a plain language interpretation supports,
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you know, the Bohigian view,
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is that at the time that 24(1)(e) was enacted,
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there were no other OUI offenses.
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So the whole entire universe of OUI offenses
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was properly described and completely described
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by simply referencing 24(1)(a).
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And so when we look at why they chose that language
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of referring to paragraph A,
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I think the only reasonable inference is
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to separate it from non-OUI offenses,
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which were in paragraph B.
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Now, since that occurred,
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every single case has at least adjacently assumed
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that 24(1)(e) applies.
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From Davidson in 1989 forward there were 27 amendments
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to the OUI statute following Davidson,
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and none of them changed 24(1)(e)
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to narrow its application to simple OUI offenses.
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And that included in the 70s
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after the first aggravated form of OUI was passed
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with respect to 24(g).
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So, you know,
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I think we read too much into saying 24(1)(a)
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was meant to distinguish aggravated OEI offenses.
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There were no aggravated OUI offenses at the time.
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And-
But when they passed,
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they didn't go back
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and change that language.
Exactly, Judge Lowy,
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but they didn't need to,
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because we assume that they're
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reading Your Honors' decisions,
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and then looked at those decisions and saw
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all of them said 24(1)(e) applies universally.
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So, to me, that is a strong evidence
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that the legislature approved of this court's
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and the appeals court's interpretation.
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So, here's the-
You lost me on that.
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Can you say that again?
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I'm not sure I follow.
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So after they parted the Red Sea
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and put it back together again,
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they don't make a change in that statute
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leaving this limiting language in place.
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So why is that consistent with legislative intent?
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Sure, so I mean, you described it as limiting language.
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The language is that for any prosecution for an OUI offense,
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and we know that any aggravated OUI prosecution
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is also a prosecution for an OUI offense,
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because it's a lesser included offense,
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such that when we get a verdict on a lesser included trial,
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the verdict is guilty of 24(1)(a).
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What I mean by that is that the legislature,
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when they're looking at 24(1)(e)
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could never have anticipated Bohigian,
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because they're saying it's all good.
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The SJC is doing it the way we want them to do it,
261
00:12:18.390 --> 00:12:21.090
which is to treat 24(1)(e) as inclusive.
262
00:12:21.090 --> 00:12:22.931
I hope that that answered Your Honor's question.
263
00:12:22.931 --> 00:12:25.470
I think I think more simply you're saying
264
00:12:25.470 --> 00:12:26.670
they didn't have to worry about it,
265
00:12:26.670 --> 00:12:28.560
because the SJC case law
266
00:12:28.560 --> 00:12:30.840
incorporated the more serious offense.
267
00:12:30.840 --> 00:12:32.580
That's exactly what I wanted to say,
268
00:12:32.580 --> 00:12:33.413
in a much smarter way.
269
00:12:33.413 --> 00:12:34.860
Thank you so much, Judge Lowy.
270
00:12:36.120 --> 00:12:39.540
But we gotta look past-
But, then after Bohigian
271
00:12:39.540 --> 00:12:40.680
there's-
Right.
272
00:12:40.680 --> 00:12:43.650
And so I get it up to then,
273
00:12:43.650 --> 00:12:45.360
but once we do Bohigian, and again,
274
00:12:45.360 --> 00:12:46.830
I was a dissenter in Bohigian,
275
00:12:46.830 --> 00:12:48.900
but after we do that,
276
00:12:48.900 --> 00:12:51.300
don't they have to make the corrective language?
277
00:12:51.300 --> 00:12:54.060
Or we assume they think we're right, in your view,
278
00:12:54.060 --> 00:12:56.670
that they're reading all of our stuff so closely?
279
00:12:56.670 --> 00:13:00.300
Sure, I think that what we're doing
280
00:13:00.300 --> 00:13:04.500
is conflating awareness with alacrity.
281
00:13:04.500 --> 00:13:09.343
And I think that the problem there is that
282
00:13:09.343 --> 00:13:11.850
I don't think that the precedent of this court
283
00:13:11.850 --> 00:13:15.003
or generally statutory interpretation states that we would,
284
00:13:16.110 --> 00:13:18.300
we expect that as soon as a decision
285
00:13:18.300 --> 00:13:20.550
is reported by this court,
286
00:13:20.550 --> 00:13:22.830
that that becomes priority number one for the legislature.
287
00:13:22.830 --> 00:13:24.930
Although OUIs-
It was with Upskirdin.
288
00:13:24.930 --> 00:13:26.430
That was the only time ever.
289
00:13:26.430 --> 00:13:27.263
I'm sorry (indistinct).
290
00:13:27.263 --> 00:13:28.860
The Upskirdin decision.
291
00:13:28.860 --> 00:13:30.810
Oh, yeah, yeah, right, right, right, yes, yes,
292
00:13:30.810 --> 00:13:32.010
that was a big one.
Then they moved
293
00:13:32.010 --> 00:13:33.510
with alacrity.
Oh yeah, for sure.
294
00:13:33.510 --> 00:13:34.620
For sure.
That's it.
295
00:13:34.620 --> 00:13:35.453
Yeah.
296
00:13:35.453 --> 00:13:37.067
An OUI is something they care about.
297
00:13:37.067 --> 00:13:39.715
I mean, they're all over-
For sure.
298
00:13:39.715 --> 00:13:41.760
That, right?
For sure.
299
00:13:41.760 --> 00:13:45.660
But I wanna point out just a little bit of caution here.
300
00:13:45.660 --> 00:13:47.340
I don't think that the precedent of this court
301
00:13:47.340 --> 00:13:50.670
or any court discussing statutory interpretation
302
00:13:50.670 --> 00:13:53.740
views as informative the legislature's
303
00:13:55.590 --> 00:13:56.760
failure to act in a vacuum.
304
00:13:56.760 --> 00:13:57.900
It has to be failure to act
305
00:13:57.900 --> 00:14:00.210
when they're looking at the legislation
306
00:14:00.210 --> 00:14:03.398
and passing laws on that legislation,
307
00:14:03.398 --> 00:14:04.560
specifically.
We don't get
308
00:14:04.560 --> 00:14:07.600
to the statutory interpretation tools
309
00:14:08.610 --> 00:14:11.190
until we get past plain language, correct?
310
00:14:11.190 --> 00:14:12.060
That's exactly right.
311
00:14:12.060 --> 00:14:13.610
That's exactly right, although,
312
00:14:14.730 --> 00:14:16.350
I think that the case law is clear
313
00:14:16.350 --> 00:14:19.623
that we even clear language is not read in isolation.
314
00:14:20.580 --> 00:14:22.530
So we always have to look at making
315
00:14:22.530 --> 00:14:24.720
an effective piece of legislation what the overall goals
316
00:14:24.720 --> 00:14:28.410
of the legislature are, even in a plain language context.
317
00:14:28.410 --> 00:14:31.774
But here's the problem here, Justice Gaziano,
318
00:14:31.774 --> 00:14:36.774
by looking at 24(1)(e) as limiting its application
319
00:14:39.270 --> 00:14:43.020
to simple OUIs only,
320
00:14:43.020 --> 00:14:45.480
we're cutting off our nose to spite our faces,
321
00:14:45.480 --> 00:14:49.890
because 24(1)(e) clearly is a statute
322
00:14:49.890 --> 00:14:51.450
of very broad application
323
00:14:51.450 --> 00:14:54.210
in terms of the other mechanisms that it has.
324
00:14:54.210 --> 00:14:57.660
For instance, eliminating the admissibility
325
00:14:57.660 --> 00:14:59.070
of refusal evidence.
326
00:14:59.070 --> 00:15:00.390
Now, if the legislature...
327
00:15:00.390 --> 00:15:01.650
So that's where that happens.
328
00:15:01.650 --> 00:15:02.827
It's within 24(1)(e).
329
00:15:02.827 --> 00:15:05.850
And so if the legislature is looking at 24(1)(e)
330
00:15:05.850 --> 00:15:07.560
as a narrow piece of legislation,
331
00:15:07.560 --> 00:15:11.160
what we have to infer is that they think it's okay to-
332
00:15:11.160 --> 00:15:14.130
I think your your your problem, though,
333
00:15:14.130 --> 00:15:17.010
so you can address it that's implicit
334
00:15:17.010 --> 00:15:19.200
in Justice Gaziano's question is,
335
00:15:19.200 --> 00:15:22.200
well wait a minute, it's not absurd to say,
336
00:15:22.200 --> 00:15:26.520
okay, we're going to require this for simple OUIs,
337
00:15:26.520 --> 00:15:28.140
but not more serious OUIs,
338
00:15:28.140 --> 00:15:33.140
and all of these statutory tools, going back to 1931,
339
00:15:33.900 --> 00:15:36.390
the Commonwealth's gonna say all interesting,
340
00:15:36.390 --> 00:15:38.400
but the plain language only applies
341
00:15:38.400 --> 00:15:40.620
to simple OUIs in 21(e)(1),
342
00:15:40.620 --> 00:15:44.040
So why am I worrying about all these statutory tools?
343
00:15:44.040 --> 00:15:44.873
Because,
344
00:15:47.740 --> 00:15:51.030
I don't necessarily agree that the plain language
345
00:15:51.030 --> 00:15:53.310
is as revelatory as the Commonwealth says,
346
00:15:53.310 --> 00:15:56.733
or that it says plainly in support of their position as-
347
00:15:58.023 --> 00:16:00.820
Because you read it as a lesser included.
348
00:16:00.820 --> 00:16:02.730
Because I read it as a lesser included,
349
00:16:02.730 --> 00:16:04.950
and for a whole host of other reasons.
350
00:16:04.950 --> 00:16:05.783
I mean...
351
00:16:10.232 --> 00:16:11.460
If they wanted to be plain,
352
00:16:11.460 --> 00:16:16.140
they coulda said 24(1)(e) shall not apply to aggravated OUI.
353
00:16:16.140 --> 00:16:18.600
So it's almost like it's silent.
354
00:16:18.600 --> 00:16:19.650
It doesn't say shall apply.
355
00:16:19.650 --> 00:16:21.213
It doesn't say shall not apply.
356
00:16:22.470 --> 00:16:23.940
Can I give an example?
357
00:16:23.940 --> 00:16:25.110
If you look at,
358
00:16:25.110 --> 00:16:27.120
so the Commonwealth says that in an ideal world,
359
00:16:27.120 --> 00:16:29.373
the statute would specifically enumerate,
360
00:16:31.775 --> 00:16:33.375
24(a), 24(l) 24(g), 265, 13-1/2.
361
00:16:36.840 --> 00:16:40.380
There's an experiment within Chapter 90, Section 24,
362
00:16:40.380 --> 00:16:43.170
where the legislature in fact does that,
363
00:16:43.170 --> 00:16:46.590
enumerating these specific provisions.
364
00:16:46.590 --> 00:16:49.050
This is with respect to the special assessment
365
00:16:49.050 --> 00:16:50.850
requirement within 24.
366
00:16:50.850 --> 00:16:52.920
So there's this fund, the mother's...
367
00:16:52.920 --> 00:16:56.340
I'm sorry, the Victims of Drunk Driving Trust Fund,
368
00:16:56.340 --> 00:16:57.900
which is funded by people
369
00:16:57.900 --> 00:17:00.240
who are convicted of these offenses.
370
00:17:00.240 --> 00:17:04.080
And the statute enumerates the offenses that should apply.
371
00:17:04.080 --> 00:17:09.080
It says 24(a), (l), (g),
372
00:17:09.810 --> 00:17:14.793
but you know what, it doesn't say 24, 265, 13-1/2.
373
00:17:15.899 --> 00:17:19.860
The charge in which people should absolutely
374
00:17:19.860 --> 00:17:21.450
be reaching into their pocket to pay for,
375
00:17:21.450 --> 00:17:22.500
they killed somebody, right?
376
00:17:22.500 --> 00:17:25.740
Under 13-1/2, and they did so in manslaughter context.
377
00:17:25.740 --> 00:17:27.783
But because of the enumeration problem,
378
00:17:29.070 --> 00:17:32.550
somewhere along the way, they forgot to add 13-1/2.
379
00:17:32.550 --> 00:17:35.820
But when you use this language of incorporation
380
00:17:35.820 --> 00:17:40.470
by saying any OUI offense under section 24,
381
00:17:40.470 --> 00:17:43.920
all assessments and all other provisions that apply to OUI
382
00:17:43.920 --> 00:17:45.180
automatically spread out
383
00:17:45.180 --> 00:17:47.280
and apply to all OUI-related statutes,
384
00:17:47.280 --> 00:17:49.590
making it a much more effective way to describe the-
385
00:17:49.590 --> 00:17:50.423
Can I ask you
386
00:17:50.423 --> 00:17:51.540
one more question?
Yes, of course, please.
387
00:17:51.540 --> 00:17:56.540
So, why do you say that the refusal to consent...
388
00:17:58.560 --> 00:18:02.527
If we read the first sentence of 24(e)(1),
389
00:18:05.670 --> 00:18:07.200
according to its plain meaning,
390
00:18:07.200 --> 00:18:08.820
and I understand that you disagree with that,
391
00:18:08.820 --> 00:18:12.393
but according to the way Bohigian referred to it,
392
00:18:14.910 --> 00:18:19.910
why can't we separate the second sentence about consent?
393
00:18:21.180 --> 00:18:24.753
'Cause that one doesn't tie it to a.
394
00:18:25.710 --> 00:18:28.650
So, you mean separate out,
395
00:18:28.650 --> 00:18:30.330
parse out 24(1)(e) to some extent?
396
00:18:30.330 --> 00:18:31.800
Is that-
Well, yeah.
397
00:18:31.800 --> 00:18:34.890
'cause 24(1)(e) first sentence is about
398
00:18:34.890 --> 00:18:38.850
the a prosecutions, or simple OUI, as you call it.
399
00:18:38.850 --> 00:18:40.890
Yep.
But then there's a period,
400
00:18:40.890 --> 00:18:42.397
and then the second sentence says,
401
00:18:42.397 --> 00:18:44.737
"Evidence shall not be admissible,
402
00:18:44.737 --> 00:18:46.867
"failure to consent shall not be admissible
403
00:18:46.867 --> 00:18:49.860
"in any criminal proceeding."
404
00:18:49.860 --> 00:18:51.300
Right, but it's-
Regardless of whether
405
00:18:51.300 --> 00:18:52.500
it's for simple OUI.
406
00:18:52.500 --> 00:18:53.490
Sorry to interrupt, Your Honor.
407
00:18:53.490 --> 00:18:54.510
Yeah, go ahead.
408
00:18:54.510 --> 00:18:58.413
So, it's the way that the statute itself is written.
409
00:18:59.730 --> 00:19:02.550
There are so many internal references
410
00:19:02.550 --> 00:19:06.660
to the overall principle within 24(1)(e)
411
00:19:06.660 --> 00:19:10.263
that make it clear that it is a uniform statute that,
412
00:19:13.530 --> 00:19:16.320
you know, is intended to work together harmoniously.
413
00:19:16.320 --> 00:19:18.240
All provisions of 24(1)(e) are intended
414
00:19:18.240 --> 00:19:19.350
to work together harmoniously,
415
00:19:19.350 --> 00:19:22.413
because, you know, the second sentence,
416
00:19:24.630 --> 00:19:26.047
you know, says, "The results thereof
417
00:19:26.047 --> 00:19:27.627
"were made available to him."
418
00:19:29.591 --> 00:19:31.627
The third clause, says,
419
00:19:31.627 --> 00:19:34.030
"That blood shall not be withdrawn
420
00:19:35.077 --> 00:19:38.160
"for the purpose of such tests or analysis."
421
00:19:38.160 --> 00:19:42.727
Again, it's referring back to the first clause of 24(1)(e).
422
00:19:42.727 --> 00:19:44.677
"Evidence that they fail to refuse to consent
423
00:19:44.677 --> 00:19:47.490
"to such tests or analysis shall not be admissible."
424
00:19:47.490 --> 00:19:51.277
It all relates back to that first sentence of 24(1)(e).
425
00:19:55.033 --> 00:19:55.866
[Justice Wendlandt] Okay.
426
00:19:55.866 --> 00:19:56.699
I had so much more I wanna say,
427
00:19:56.699 --> 00:19:58.470
but I'm way past my time. (laughing)
428
00:19:58.470 --> 00:19:59.303
Questions.
(Justices laughing)
429
00:19:59.303 --> 00:20:01.053
Thank you.
Thank you so much.
430
00:20:02.970 --> 00:20:04.793
Have a great day, everybody.
Thank you.
431
00:20:05.760 --> 00:20:07.143
Okay, Attorney Moriarty.
432
00:20:12.690 --> 00:20:14.580
Good morning, may it please the court,
433
00:20:14.580 --> 00:20:17.347
Marina Moriarty on behalf of the Commonwealth.
434
00:20:17.347 --> 00:20:19.477
"No one has a right to use the streets
435
00:20:19.477 --> 00:20:21.187
"and public places as he chooses
436
00:20:21.187 --> 00:20:23.647
"without regard to the safety of other persons
437
00:20:23.647 --> 00:20:25.110
"who are rightly there."
438
00:20:25.110 --> 00:20:27.960
Commonwealth v Kingsbury 1908.
439
00:20:27.960 --> 00:20:30.450
Here, the Commonwealth asks this court
440
00:20:30.450 --> 00:20:33.480
to reaffirm its holdings in Bohigian and Moreau
441
00:20:33.480 --> 00:20:37.200
and conclude that the plain language of the statute applies.
442
00:20:37.200 --> 00:20:38.340
The court need not look
443
00:20:38.340 --> 00:20:40.200
beyond the plain language of the statute
444
00:20:40.200 --> 00:20:42.030
where it is unambiguous.
445
00:20:42.030 --> 00:20:44.400
There is no legislative history of (indistinct)
446
00:20:44.400 --> 00:20:46.560
and intent to the contrary,
447
00:20:46.560 --> 00:20:48.780
and it is consistent with the legislature's
448
00:20:48.780 --> 00:20:51.570
thoughtful balancing of competing interests.
449
00:20:51.570 --> 00:20:53.970
Was there actually,
450
00:20:53.970 --> 00:20:55.410
I'm sure you've looked at the cases
451
00:20:55.410 --> 00:20:59.130
on page 18, 19 of the blue brief.
452
00:20:59.130 --> 00:21:03.600
Was there actually case law applying (e)
453
00:21:03.600 --> 00:21:07.350
in the context of aggravated OUI before Bohigian?
454
00:21:07.350 --> 00:21:11.763
Yes, however, that was not the issue in the case.
455
00:21:13.740 --> 00:21:16.770
I would say that here the legislature-
456
00:21:16.770 --> 00:21:18.390
Meaning they assumed it-
Yes.
457
00:21:18.390 --> 00:21:19.620
Applied?
Yes.
458
00:21:19.620 --> 00:21:20.733
It was never raised.
459
00:21:22.200 --> 00:21:23.033
But-
They just mentioned it
460
00:21:23.033 --> 00:21:25.080
in pasting when they were talking about consent
461
00:21:25.080 --> 00:21:26.550
and-
Correct.
462
00:21:26.550 --> 00:21:29.625
And other-
So you had a crime,
463
00:21:29.625 --> 00:21:31.413
there's an aggravated crime,
464
00:21:32.508 --> 00:21:34.320
and it mentioned the statute in passing.
465
00:21:34.320 --> 00:21:36.750
Correct, and it was never...
466
00:21:36.750 --> 00:21:39.720
This reference to a violation of paragraph A
467
00:21:39.720 --> 00:21:40.650
was never at issue.
468
00:21:40.650 --> 00:21:45.153
It was the remaining portion of (e)(1) that was at issue.
469
00:21:46.680 --> 00:21:49.290
Here, the legislature has granted an individual
470
00:21:49.290 --> 00:21:53.100
charged with simple OUI greater protection from evidence
471
00:21:53.100 --> 00:21:56.940
of non-consensual testing than an individual charged
472
00:21:56.940 --> 00:21:59.610
with a more serious OUI offense.
473
00:21:59.610 --> 00:22:02.790
How do you deal with the lesser included problem?
474
00:22:02.790 --> 00:22:05.850
If the legislature had intended that interpretation
475
00:22:05.850 --> 00:22:09.333
as the defense suggests, then it would have said,
476
00:22:10.890 --> 00:22:12.900
it would've used an elements-based approach,
477
00:22:12.900 --> 00:22:16.020
as it does in section 58(a)
478
00:22:16.020 --> 00:22:17.780
as it does in the armed career criminal statute.
479
00:22:17.780 --> 00:22:21.660
If it had said in a prosecution for which a violation
480
00:22:21.660 --> 00:22:24.240
of paragraph A is an element of the offense.
481
00:22:24.240 --> 00:22:26.910
You would need to read in language to the statute
482
00:22:26.910 --> 00:22:28.350
that is simply not there.
483
00:22:28.350 --> 00:22:31.770
But how does that work practically?
484
00:22:31.770 --> 00:22:34.293
So I am accused of aggravated OUI.
485
00:22:36.210 --> 00:22:38.973
The jury says no aggravation, but OUI,
486
00:22:40.854 --> 00:22:42.650
and then aren't you using...
487
00:22:43.980 --> 00:22:46.347
Let's say it was taken in violation of (e).
488
00:22:48.300 --> 00:22:50.160
Doesn't that come in and isn't that
489
00:22:50.160 --> 00:22:52.041
what that statute says?
If the common-
490
00:22:52.041 --> 00:22:53.070
Should not happen?
491
00:22:53.070 --> 00:22:55.110
If the Commonwealth proved
492
00:22:55.110 --> 00:22:57.810
got beyond the directed verdict standard
493
00:22:57.810 --> 00:22:59.370
with respect to the, say,
494
00:22:59.370 --> 00:23:02.130
serious bodily injury charge, 24(l),
495
00:23:02.130 --> 00:23:05.280
then the prosecution would not have been
496
00:23:05.280 --> 00:23:06.690
for a violation of paragraph A.
497
00:23:06.690 --> 00:23:11.370
The prosecution would've been for a violation of 24(l).
498
00:23:11.370 --> 00:23:14.070
The fact that ultimately it comes back as a lesser included,
499
00:23:14.070 --> 00:23:16.140
because potentially the jury didn't find
500
00:23:16.140 --> 00:23:20.365
a serious bodily injury, does not violate Section (1)(e).
501
00:23:20.365 --> 00:23:21.630
But didn't they use the...
502
00:23:21.630 --> 00:23:26.040
Aren't they using the alcohol reading evidence
503
00:23:26.040 --> 00:23:28.800
to convict you of the lesser included there?
504
00:23:28.800 --> 00:23:30.240
Which is something the legislature
505
00:23:30.240 --> 00:23:32.130
didn't want to allow, right?
506
00:23:32.130 --> 00:23:35.160
Doesn't it present a practical problem that that evidence,
507
00:23:35.160 --> 00:23:38.250
if you're convicted of the lesser included,
508
00:23:38.250 --> 00:23:40.143
and that evidence is in there,
509
00:23:41.040 --> 00:23:43.320
doesn't that present a problem?
510
00:23:43.320 --> 00:23:45.127
I don't think so, because the statute says,
511
00:23:45.127 --> 00:23:48.210
"In any prosecution for a violation of."
512
00:23:48.210 --> 00:23:51.423
But if a prosecution always includes a lesser included,
513
00:23:53.850 --> 00:23:55.500
doesn't that present a problem?
514
00:23:55.500 --> 00:23:57.930
Then the legislature would've said so.
515
00:23:57.930 --> 00:24:00.690
It would've said for a prosecution
516
00:24:00.690 --> 00:24:02.310
that includes an element of.
517
00:24:02.310 --> 00:24:04.080
That's assuming a lot.
518
00:24:04.080 --> 00:24:07.800
They're understanding not just the way the statute works,
519
00:24:07.800 --> 00:24:10.890
but the way the DA's prosecute
520
00:24:10.890 --> 00:24:13.380
and the way we interpret lesser included.
521
00:24:13.380 --> 00:24:16.830
That's a pretty big lift for them.
522
00:24:16.830 --> 00:24:19.830
I would like to give legislature more credit, Your Honor.
523
00:24:19.830 --> 00:24:23.580
It specifically says, "For a violation of paragraph A."
524
00:24:23.580 --> 00:24:25.810
As the amicus brief pointed out
525
00:24:28.857 --> 00:24:31.110
in one of the original versions of the statute,
526
00:24:31.110 --> 00:24:32.910
it was more broadly written,
527
00:24:32.910 --> 00:24:37.380
and the legislature decided to more narrowly tailor it
528
00:24:37.380 --> 00:24:40.110
and specifically call out a violation of paragraph A.
529
00:24:40.110 --> 00:24:42.599
Isn't your argument much simpler than that?
530
00:24:42.599 --> 00:24:45.480
Aren't you just saying that in a case
531
00:24:45.480 --> 00:24:50.480
where there's an aggravated OUI this is admissible.
532
00:24:51.180 --> 00:24:53.970
The statute's not about what evidence
533
00:24:53.970 --> 00:24:56.670
may be considered after the verdict
534
00:24:56.670 --> 00:25:00.300
as it relates to what happened in a lesser included offense.
535
00:25:00.300 --> 00:25:03.690
The statute says, okay, these are the tools,
536
00:25:03.690 --> 00:25:05.628
and this is what you can use
537
00:25:05.628 --> 00:25:09.840
to build your model of reality for your trial,
538
00:25:09.840 --> 00:25:11.760
for this type of prosecution.
539
00:25:11.760 --> 00:25:14.370
Nothin' about what the ultimate adjudication is.
540
00:25:14.370 --> 00:25:16.320
Correct, that's why they use the words
541
00:25:16.320 --> 00:25:18.570
in a prosecution for a violation of.
542
00:25:18.570 --> 00:25:22.350
And I think that goes to what this court said in Bohigian,
543
00:25:22.350 --> 00:25:24.330
which was absolutely not dicta.
544
00:25:24.330 --> 00:25:26.010
In fact, the court in Moreau relied
545
00:25:26.010 --> 00:25:30.540
on the holding in Bohigian, and said as much.
546
00:25:30.540 --> 00:25:32.520
The court could not have decided Bohigian
547
00:25:32.520 --> 00:25:34.980
based on (1)(f) if it hadn't already
548
00:25:34.980 --> 00:25:37.330
kind of checked the box with respect to (1)(e).
549
00:25:38.921 --> 00:25:41.580
Is the prosecution for aggravated OUI
550
00:25:41.580 --> 00:25:43.203
also a prosecution for OUI?
551
00:25:44.790 --> 00:25:47.010
No, Your Honor, because there's,
552
00:25:47.010 --> 00:25:49.200
the Commonwealth need demonstrate probable cause,
553
00:25:49.200 --> 00:25:53.400
and then need demonstrate a directed verdict standard
554
00:25:53.400 --> 00:25:55.920
with respect to the additional elements.
555
00:25:55.920 --> 00:25:57.270
There's multiple additional elements,
556
00:25:57.270 --> 00:25:59.160
depending on which OUI,
557
00:25:59.160 --> 00:26:00.540
more serious OUI we're talking about.
558
00:26:00.540 --> 00:26:03.720
But it's not just an OUI.
559
00:26:03.720 --> 00:26:05.610
It's an OUI plus.
560
00:26:05.610 --> 00:26:07.560
But, but-
Right.
561
00:26:07.560 --> 00:26:09.840
But subsumed within the OUI plus
562
00:26:09.840 --> 00:26:11.793
is what you first said, which is OUI.
563
00:26:13.260 --> 00:26:14.370
Correct.
Okay.
564
00:26:14.370 --> 00:26:18.840
So a prosecution for OUI plus must necessarily,
565
00:26:18.840 --> 00:26:21.440
as a matter of logic, also be a prosecution for OUI.
566
00:26:22.770 --> 00:26:24.480
Correct.
Okay, so if it is
567
00:26:24.480 --> 00:26:27.810
a prosecution for OUI, as you've now admitted,
568
00:26:27.810 --> 00:26:30.120
then (e) applies.
No, Your Honor,
569
00:26:30.120 --> 00:26:31.650
because it's not in a prosecution
570
00:26:31.650 --> 00:26:33.480
for a violation of paragraph A.
571
00:26:33.480 --> 00:26:35.730
Their commonwealth is alleging a violation of a-
572
00:26:35.730 --> 00:26:38.730
The violation term that you're hanging your hat on.
573
00:26:38.730 --> 00:26:42.120
And the lack of an elements-based approach language,
574
00:26:42.120 --> 00:26:44.070
which this court would have to read into the statute,
575
00:26:44.070 --> 00:26:46.110
which is not present.
576
00:26:46.110 --> 00:26:48.690
The court, if the legislature had intended
577
00:26:48.690 --> 00:26:49.800
the defendant's approach,
578
00:26:49.800 --> 00:26:51.720
which would offer a blanket protection
579
00:26:51.720 --> 00:26:55.260
for any defendant charged with an element of OUI,
580
00:26:55.260 --> 00:26:57.300
as they do in many other places in the statute,
581
00:26:57.300 --> 00:26:58.350
they could have cross-referenced.
582
00:26:58.350 --> 00:26:59.850
They simply didn't do it here.
583
00:27:01.650 --> 00:27:04.590
The court must presume that the legislature intended
584
00:27:04.590 --> 00:27:06.660
what the words of the statute say.
585
00:27:06.660 --> 00:27:08.317
Here, the words of the statute say,
586
00:27:08.317 --> 00:27:12.150
"In any prosecution for a violation of paragraph A."
587
00:27:12.150 --> 00:27:13.800
So when the violation of paragraph A
588
00:27:13.800 --> 00:27:17.324
appears in the complaint or appears in the indictment,
589
00:27:17.324 --> 00:27:18.570
(1)(e) applies.
590
00:27:18.570 --> 00:27:21.000
What do you say to the appellant's argument
591
00:27:21.000 --> 00:27:24.930
that 24(e)(1), when it passed,
592
00:27:24.930 --> 00:27:26.480
there was only one type of OUI?
593
00:27:27.780 --> 00:27:29.970
That may be true, however, again,
594
00:27:29.970 --> 00:27:32.850
back then when it passed in 1961,
595
00:27:32.850 --> 00:27:35.070
the language was more narrowly tailored.
596
00:27:35.070 --> 00:27:39.660
In 1986 when the 24(l) was passed,
597
00:27:39.660 --> 00:27:42.330
the consent language was proposed
598
00:27:42.330 --> 00:27:47.100
and ultimately was not included in that particular section.
599
00:27:47.100 --> 00:27:50.100
So I think that goes to the legislature's intent
600
00:27:50.100 --> 00:27:53.760
that this (1)(e) section really only applies
601
00:27:53.760 --> 00:27:55.800
to violations of paragraph A.
602
00:27:55.800 --> 00:27:57.660
Can you expand on that?
603
00:27:57.660 --> 00:28:00.720
What happened when 24(l) was passed?
604
00:28:00.720 --> 00:28:02.400
Again, it's referenced in the amicus brief,
605
00:28:02.400 --> 00:28:04.140
I think on page 16 and 17.
Okay.
606
00:28:04.140 --> 00:28:07.530
There was a proposal that would include
607
00:28:07.530 --> 00:28:11.430
the consent provision and cross-referenced section (1)(e),
608
00:28:11.430 --> 00:28:13.410
but ultimately in the final version
609
00:28:13.410 --> 00:28:15.570
of section 24(l) that was passed,
610
00:28:15.570 --> 00:28:18.330
the consent provision was not cross-referenced,
611
00:28:18.330 --> 00:28:19.500
it was not included.
612
00:28:19.500 --> 00:28:22.230
I think that is conclusive of the legislature's intent
613
00:28:22.230 --> 00:28:26.730
with respect to whether consent is required under 24(l),
614
00:28:26.730 --> 00:28:29.130
which is the specific question before the court.
615
00:28:32.250 --> 00:28:33.720
And it makes logical sense, Your Honors,
616
00:28:33.720 --> 00:28:35.760
that the legislature has granted an individual
617
00:28:35.760 --> 00:28:38.760
charged with simple OUI greater protection from evidence
618
00:28:38.760 --> 00:28:41.340
of non-consensual testing versus a defendant
619
00:28:41.340 --> 00:28:43.770
charged with more serious OUI offenses.
620
00:28:43.770 --> 00:28:47.310
Where there's an actual victim of bodily injury or death
621
00:28:47.310 --> 00:28:49.620
the defendant's interests diminish
622
00:28:49.620 --> 00:28:52.770
in favor of the victim's and the Commonwealth's ability
623
00:28:52.770 --> 00:28:55.320
to prove the case with the best elements,
624
00:28:55.320 --> 00:28:56.820
or the best evidence possible.
625
00:28:57.720 --> 00:29:00.783
The existence of the victim is a distinguishing factor.
626
00:29:03.300 --> 00:29:04.740
And if the court has no further questions,
627
00:29:04.740 --> 00:29:06.240
I'm happy to rest on my brief.