-: SJC 13384, Commonwealth v Bradley T. Zucchino.
-: [Chief Justice Budd] All right, Attorney (indistinct).
-: Good morning, Chief Judge Budd.
-: [Chief Justice Budd] Good morning.
-: Justices, may it please the court.
As always, it's an honor to appear before you.
This case presents the question,
in what OUI prosecutions is consent to state testing
and analysis of blood required
under Chapter 90, Section 24(1)(e)?
And the answer to this question, Your Honors,
is also going to determine when (clearing throat)
in what cases did the legislature determine
that refusal evidence is inadmissible?
In what cases did the legislature determine
that BAC evidence should be automatically admissible,
that the prosecution should be spared the obligation
of presenting a live witness to establish the BAC,
and instead use a certificate of analysis,
in what cases did the legislature intend
presumptions of impairment or non-impairment to apply?
What cases should the police officer's arrest decision
be protected and comparative testing available?
-: Okay, so that sounds like a lot of things to think about,
but can you tell me why we shouldn't just
look at the plain language of, I think it's...
Is it C?
Let's just look at the plain language of the simple OUI.
-: Sure, sure, yes. -: Right?
That's what you want us to be looking at, right?
-: Well, yes, I want the court to look at the, first,
as we should always look at the plain language of 24(1)(e),
which is the implied consent,
which is the statute which imposes a consent requirement,
and to do so within the overall statutory scheme, so-
-: Because if you don't do the overall statutory scheme,
then you don't have an argument, right?
-: Well, I don't know, I don't know,
because it's actually my belief
that if you really look at 24(1)(e)
through the common phrases
that are used within that statute,
the reading which I propose is proper,
is I would say natural and perhaps even plain
from the statute-
Justice Gaziano: For a violation of paragraph A, right?
That's the- -: Yes, yes, that's right,
in a prosecution for violation of paragraph A.
Justice Gaziano: And it doesn't say elements,
like some of the other statutes.
-: Right, right, yes.
Although I don't think that it's uncommon in,
you know, legislative acts to refer
to other provisions by reference.
You know, for instance, I mean,
if you look at the jurisdictional grant for district court,
I mean, everything is listed by,
you know, statute as opposed to
by particular names of charges.
So what we're talking about here
is a prosecution for a violation of paragraph A.
So when we look at what is a prosecution for, paragraph A,
what we're talking about really is a prosecution for OUI.
And what I would first point out
is there's really two statutes at issue here.
There's 24(l) which is the serious bodily injury statute,
and 265, 13-1/2.
In fact, begin with 13-1/2, that statute itself uses
the same exact incorporation language as does 24(1)(e).
It defines OUI by reference to paragraph A 90-
-: But what do we make of the language in Bohigian?
-: So I think that the language in Bohigian
was sort of the side issue,
because Bohigian was decided,
fully pursuant to 24(1)(f),
wholly apart from 24(1)(e), and so-
-: Wasn't one of the charges in Bohigian 24(l)?
-: Yes, it was, yes, it was,
Justice Wendlandt. -: It wasn't dicta.
It was clearly part of the holding.
Or can you explain-
-: Sure. -: How you're
differentiating that.
-: The way I understand what becomes precedential
and what doesn't,
depends on what is essential to the holding,
and the holding was that
the defendant's consent was required.
And that holding was arrived at
pursuant to 24(1)(f) wholly apart from 24(1)(e).
And so whether 24(1)(e) applied or not
was really not necessary
to the court's resolution of Bohigian.
And, you know,
I certainly understand the sort of like arms-length appeal
of looking at 24(1)(e) that way,
although I do note that the court's comments
regarding 24(1)(e), before ultimately moving on to 24(1)(f)
were not supported by any citation to authority, at all.
And thus, essentially overruled sub silentio
all of the case law from 1989 until Bohigian,
all of which presumed that 24(1)(e)
applied to all OUI offenses, not just simple OUI.
And I think that there's a preference
for not overruling cases sub- -: I'm sorry, can you
list the cases that you're talking about?
-: Yes, that would be...
These cases are listed within my brief
at page 18 through 19 and 47 to 48.
And they are Commonwealth versus Ames,
Commonwealth versus Woods, Commonwealth versus Avides.
Commonwealth versus McCravey, Commonwealth versus Davidson,
Grivet, Smith, Arruda, Carson.
All of those cases.
Yes, yes, yes. -: You say all of those cases,
counsel, but I'm not gonna go seriatim through all of them,
but they really weren't the issue here.
I mean, I could just tell you Arruda was the nurses
that just kept asking,
and whether it was state action versus non-state action.
So it wasn't really the issues that we have here.
-: Sure, so in that, you know,
perhaps in that regard, it's similar to,
you know, it was sort of adjacent to the ultimate question.
-: Sure, but if we're looking at,
and you're looking at Bohigian-
-: Yes. -: Particularly,
and you're saying it was a side issue,
I don't know that I would agree with you,
because the court really went to great pains to say,
we're not construing
this other serious bodily injury component.
And that was a big deal.
So just now, if we go and just look
at the statutory interpretation
and the stuff that we've used for years and years and years,
why doesn't it make sense
that we wouldn't read the consent provision
in the serious bodily injury?
Because it's a far more serious charge.
And even though the basic stem, elemental stem,
is the same as simple OUI, why doesn't it make sense?
And I'll add one other question for,
one other part of that for you.
Clearly if you read and you claim that,
or we say that the legislature
is aware of what we say and what we do,
they certainly could have since Bohigian
and they could have since Moreau said,
"Hey, we need to make this explicit
"in the event that rather than going sub silentio
"and using all of these wonderful Latin phrases,
"we could just make it explicit."
-: Sure, so I think that the principles
of statutory construction that we look to is,
has its most force when the legislature
has actually looked at the statute and revised it,
but the revision didn't go to
the issue here before the court.
Just because
I would submit that the focus of Bohigian
was on 24(1)(f) that, you know,
one would have to sort of like mine the decision
to really get to the 24(1)(e) language.
And I don't know that the legislature had that
as sort of as pressing a concern
as it would've had if 24(1)(e)
were the entire basis for the opinion,
or if there was a case that held specifically on its merits
that 24(1)(e) didn't apply.
-: So, but here we are doing it now.
So I
(indistinct) Bohigian. -: Yes.
-: So I know that that was not the direct issue.
-: Yes. -: But here we are now.
Attorney: Yes, for sure, for sure.
With the benefit of briefing.
-: Right, and so I still wanna get to
how we get past the plain language.
-: Okay. -: That says it's only
focused on. -: I'm gonna help you with
that, I'm gonna help you- -: Yes.
-: With that.
So 24(1)(e) was enacted in 1961,
and the version of the statute at that time
had been in effect since 1931, or yeah, '31.
And in 1931, that was the first time that the statute
kind of like parted the Red Sea.
At the time, prior to '31,
the statute was omnibus in maybe even a worse way
than it is today in the sense that
it listed a bunch of offenses.
It listed OUI, false licenses,
leaving the scene of an accident, et cetera, et cetera.
And then in '31 they said, let's pump the brakes here,
and let's separate this out,
and we have 24(a) offenses, which are OUI offenses;
and 24(b) offenses, which are non-OUI offenses.
And so that's where that dichotomy first arose.
And so what's most notable,
and this is where I think
the greatest weakness of the government's argument
that this is the, you know,
a plain language interpretation supports,
you know, the Bohigian view,
is that at the time that 24(1)(e) was enacted,
there were no other OUI offenses.
So the whole entire universe of OUI offenses
was properly described and completely described
by simply referencing 24(1)(a).
And so when we look at why they chose that language
of referring to paragraph A,
I think the only reasonable inference is
to separate it from non-OUI offenses,
which were in paragraph B.
Now, since that occurred,
every single case has at least adjacently assumed
that 24(1)(e) applies.
From Davidson in 1989 forward there were 27 amendments
to the OUI statute following Davidson,
and none of them changed 24(1)(e)
to narrow its application to simple OUI offenses.
And that included in the 70s
after the first aggravated form of OUI was passed
with respect to 24(g).
So, you know,
I think we read too much into saying 24(1)(a)
was meant to distinguish aggravated OEI offenses.
There were no aggravated OUI offenses at the time.
And- -: But when they passed,
they didn't go back
and change that language. -: Exactly, Judge Lowy,
but they didn't need to,
because we assume that they're
reading Your Honors' decisions,
and then looked at those decisions and saw
all of them said 24(1)(e) applies universally.
So, to me, that is a strong evidence
that the legislature approved of this court's
and the appeals court's interpretation.
So, here's the- -: You lost me on that.
Can you say that again?
I'm not sure I follow.
So after they parted the Red Sea
and put it back together again,
they don't make a change in that statute
leaving this limiting language in place.
So why is that consistent with legislative intent?
-: Sure, so I mean, you described it as limiting language.
The language is that for any prosecution for an OUI offense,
and we know that any aggravated OUI prosecution
is also a prosecution for an OUI offense,
because it's a lesser included offense,
such that when we get a verdict on a lesser included trial,
the verdict is guilty of 24(1)(a).
What I mean by that is that the legislature,
when they're looking at 24(1)(e)
could never have anticipated Bohigian,
because they're saying it's all good.
The SJC is doing it the way we want them to do it,
which is to treat 24(1)(e) as inclusive.
I hope that that answered Your Honor's question.
-: I think I think more simply you're saying
they didn't have to worry about it,
because the SJC case law
incorporated the more serious offense.
-: That's exactly what I wanted to say,
in a much smarter way.
Thank you so much, Judge Lowy.
But we gotta look past- But, then after Bohigian
there's- -: Right.
-: And so I get it up to then,
but once we do Bohigian, and again,
I was a dissenter in Bohigian,
but after we do that,
don't they have to make the corrective language?
Or we assume they think we're right, in your view,
that they're reading all of our stuff so closely?
-: Sure, I think that what we're doing
is conflating awareness with alacrity.
And I think that the problem there is that
I don't think that the precedent of this court
or generally statutory interpretation states that we would,
we expect that as soon as a decision
is reported by this court,
that that becomes priority number one for the legislature.
-: Although OUIs- -: It was with Upskirdin.
That was the only time ever.
-: I'm sorry (indistinct).
-: The Upskirdin decision.
-: Oh, yeah, yeah, right, right, right, yes, yes,
that was a big one. -: Then they moved
with alacrity. -: Oh yeah, for sure.
For sure. -: That's it.
Attorney: Yeah.
-: An OUI is something they care about.
I mean, they're all over- -: For sure.
-: That, right? -: For sure.
But I wanna point out just a little bit of caution here.
I don't think that the precedent of this court
or any court discussing statutory interpretation
views as informative the legislature's
failure to act in a vacuum.
It has to be failure to act
when they're looking at the legislation
and passing laws on that legislation,
specifically. -: We don't get
to the statutory interpretation tools
until we get past plain language, correct?
-: That's exactly right.
That's exactly right, although,
I think that the case law is clear
that we even clear language is not read in isolation.
So we always have to look at making
an effective piece of legislation what the overall goals
of the legislature are, even in a plain language context.
But here's the problem here, Justice Gaziano,
by looking at 24(1)(e) as limiting its application
to simple OUIs only,
we're cutting off our nose to spite our faces,
because 24(1)(e) clearly is a statute
of very broad application
in terms of the other mechanisms that it has.
For instance, eliminating the admissibility
of refusal evidence.
Now, if the legislature...
So that's where that happens.
It's within 24(1)(e).
And so if the legislature is looking at 24(1)(e)
as a narrow piece of legislation,
what we have to infer is that they think it's okay to-
-: I think your your your problem, though,
so you can address it that's implicit
in Justice Gaziano's question is,
well wait a minute, it's not absurd to say,
okay, we're going to require this for simple OUIs,
but not more serious OUIs,
and all of these statutory tools, going back to 1931,
the Commonwealth's gonna say all interesting,
but the plain language only applies
to simple OUIs in 21(e)(1),
So why am I worrying about all these statutory tools?
-: Because,
I don't necessarily agree that the plain language
is as revelatory as the Commonwealth says,
or that it says plainly in support of their position as-
-: Because you read it as a lesser included.
-: Because I read it as a lesser included,
and for a whole host of other reasons.
I mean...
If they wanted to be plain,
they coulda said 24(1)(e) shall not apply to aggravated OUI.
So it's almost like it's silent.
It doesn't say shall apply.
It doesn't say shall not apply.
Can I give an example?
If you look at,
so the Commonwealth says that in an ideal world,
the statute would specifically enumerate,
24(a), 24(l) 24(g), 265, 13-1/2.
There's an experiment within Chapter 90, Section 24,
where the legislature in fact does that,
enumerating these specific provisions.
This is with respect to the special assessment
requirement within 24.
So there's this fund, the mother's...
I'm sorry, the Victims of Drunk Driving Trust Fund,
which is funded by people
who are convicted of these offenses.
And the statute enumerates the offenses that should apply.
It says 24(a), (l), (g),
but you know what, it doesn't say 24, 265, 13-1/2.
The charge in which people should absolutely
be reaching into their pocket to pay for,
they killed somebody, right?
Under 13-1/2, and they did so in manslaughter context.
But because of the enumeration problem,
somewhere along the way, they forgot to add 13-1/2.
But when you use this language of incorporation
by saying any OUI offense under section 24,
all assessments and all other provisions that apply to OUI
automatically spread out
and apply to all OUI-related statutes,
making it a much more effective way to describe the-
-: Can I ask you
one more question? -: Yes, of course, please.
-: So, why do you say that the refusal to consent...
If we read the first sentence of 24(e)(1),
according to its plain meaning,
and I understand that you disagree with that,
but according to the way Bohigian referred to it,
why can't we separate the second sentence about consent?
'Cause that one doesn't tie it to a.
-: So, you mean separate out,
parse out 24(1)(e) to some extent?
Is that- -: Well, yeah.
'cause 24(1)(e) first sentence is about
the a prosecutions, or simple OUI, as you call it.
-: Yep. -: But then there's a period,
and then the second sentence says,
"Evidence shall not be admissible,
"failure to consent shall not be admissible
"in any criminal proceeding."
-: Right, but it's- -: Regardless of whether
it's for simple OUI.
Attorney: Sorry to interrupt, Your Honor.
-: Yeah, go ahead.
-: So, it's the way that the statute itself is written.
There are so many internal references
to the overall principle within 24(1)(e)
that make it clear that it is a uniform statute that,
you know, is intended to work together harmoniously.
All provisions of 24(1)(e) are intended
to work together harmoniously,
because, you know, the second sentence,
you know, says, "The results thereof
"were made available to him."
The third clause, says,
"That blood shall not be withdrawn
"for the purpose of such tests or analysis."
Again, it's referring back to the first clause of 24(1)(e).
"Evidence that they fail to refuse to consent
"to such tests or analysis shall not be admissible."
It all relates back to that first sentence of 24(1)(e).
-: [Justice Wendlandt] Okay.
-: I had so much more I wanna say,
but I'm way past my time. (laughing)
Questions. (Justices laughing)
-: Thank you. -: Thank you so much.
Have a great day, everybody. -: Thank you.
-: Okay, Attorney Moriarty.
-: Good morning, may it please the court,
Marina Moriarty on behalf of the Commonwealth.
"No one has a right to use the streets
"and public places as he chooses
"without regard to the safety of other persons
"who are rightly there."
Commonwealth v Kingsbury 1908.
Here, the Commonwealth asks this court
to reaffirm its holdings in Bohigian and Moreau
and conclude that the plain language of the statute applies.
The court need not look
beyond the plain language of the statute
where it is unambiguous.
There is no legislative history of (indistinct)
and intent to the contrary,
and it is consistent with the legislature's
thoughtful balancing of competing interests.
-: Was there actually,
I'm sure you've looked at the cases
on page 18, 19 of the blue brief.
Was there actually case law applying (e)
in the context of aggravated OUI before Bohigian?
-: Yes, however, that was not the issue in the case.
I would say that here the legislature-
-: Meaning they assumed it- -: Yes.
-: Applied? -: Yes.
It was never raised.
-: But- -: They just mentioned it
in pasting when they were talking about consent
and- -: Correct.
And other- -: So you had a crime,
there's an aggravated crime,
and it mentioned the statute in passing.
-: Correct, and it was never...
This reference to a violation of paragraph A
was never at issue.
It was the remaining portion of (e)(1) that was at issue.
Here, the legislature has granted an individual
charged with simple OUI greater protection from evidence
of non-consensual testing than an individual charged
with a more serious OUI offense.
-: How do you deal with the lesser included problem?
-: If the legislature had intended that interpretation
as the defense suggests, then it would have said,
it would've used an elements-based approach,
as it does in section 58(a)
as it does in the armed career criminal statute.
If it had said in a prosecution for which a violation
of paragraph A is an element of the offense.
You would need to read in language to the statute
that is simply not there.
-: But how does that work practically?
So I am accused of aggravated OUI.
The jury says no aggravation, but OUI,
and then aren't you using...
Let's say it was taken in violation of (e).
Doesn't that come in and isn't that
what that statute says? -: If the common-
-: Should not happen?
-: If the Commonwealth proved
got beyond the directed verdict standard
with respect to the, say,
serious bodily injury charge, 24(l),
then the prosecution would not have been
for a violation of paragraph A.
The prosecution would've been for a violation of 24(l).
The fact that ultimately it comes back as a lesser included,
because potentially the jury didn't find
a serious bodily injury, does not violate Section (1)(e).
-: But didn't they use the...
Aren't they using the alcohol reading evidence
to convict you of the lesser included there?
Which is something the legislature
didn't want to allow, right?
Doesn't it present a practical problem that that evidence,
if you're convicted of the lesser included,
and that evidence is in there,
doesn't that present a problem?
-: I don't think so, because the statute says,
"In any prosecution for a violation of."
-: But if a prosecution always includes a lesser included,
doesn't that present a problem?
-: Then the legislature would've said so.
It would've said for a prosecution
that includes an element of.
-: That's assuming a lot.
They're understanding not just the way the statute works,
but the way the DA's prosecute
and the way we interpret lesser included.
That's a pretty big lift for them.
-: I would like to give legislature more credit, Your Honor.
It specifically says, "For a violation of paragraph A."
As the amicus brief pointed out
in one of the original versions of the statute,
it was more broadly written,
and the legislature decided to more narrowly tailor it
and specifically call out a violation of paragraph A.
-: Isn't your argument much simpler than that?
Aren't you just saying that in a case
where there's an aggravated OUI this is admissible.
The statute's not about what evidence
may be considered after the verdict
as it relates to what happened in a lesser included offense.
The statute says, okay, these are the tools,
and this is what you can use
to build your model of reality for your trial,
for this type of prosecution.
Nothin' about what the ultimate adjudication is.
-: Correct, that's why they use the words
in a prosecution for a violation of.
And I think that goes to what this court said in Bohigian,
which was absolutely not dicta.
In fact, the court in Moreau relied
on the holding in Bohigian, and said as much.
The court could not have decided Bohigian
based on (1)(f) if it hadn't already
kind of checked the box with respect to (1)(e).
-: Is the prosecution for aggravated OUI
also a prosecution for OUI?
-: No, Your Honor, because there's,
the Commonwealth need demonstrate probable cause,
and then need demonstrate a directed verdict standard
with respect to the additional elements.
There's multiple additional elements,
depending on which OUI,
more serious OUI we're talking about.
But it's not just an OUI.
It's an OUI plus.
-: But, but- -: Right.
But subsumed within the OUI plus
is what you first said, which is OUI.
-: Correct. -: Okay.
So a prosecution for OUI plus must necessarily,
as a matter of logic, also be a prosecution for OUI.
-: Correct. -: Okay, so if it is
a prosecution for OUI, as you've now admitted,
then (e) applies. -: No, Your Honor,
because it's not in a prosecution
for a violation of paragraph A.
Their commonwealth is alleging a violation of a-
-: The violation term that you're hanging your hat on.
-: And the lack of an elements-based approach language,
which this court would have to read into the statute,
which is not present.
The court, if the legislature had intended
the defendant's approach,
which would offer a blanket protection
for any defendant charged with an element of OUI,
as they do in many other places in the statute,
they could have cross-referenced.
They simply didn't do it here.
The court must presume that the legislature intended
what the words of the statute say.
Here, the words of the statute say,
"In any prosecution for a violation of paragraph A."
So when the violation of paragraph A
appears in the complaint or appears in the indictment,
(1)(e) applies.
-: What do you say to the appellant's argument
that 24(e)(1), when it passed,
there was only one type of OUI?
-: That may be true, however, again,
back then when it passed in 1961,
the language was more narrowly tailored.
In 1986 when the 24(l) was passed,
the consent language was proposed
and ultimately was not included in that particular section.
So I think that goes to the legislature's intent
that this (1)(e) section really only applies
to violations of paragraph A.
-: Can you expand on that?
What happened when 24(l) was passed?
-: Again, it's referenced in the amicus brief,
I think on page 16 and 17. -: Okay.
-: There was a proposal that would include
the consent provision and cross-referenced section (1)(e),
but ultimately in the final version
of section 24(l) that was passed,
the consent provision was not cross-referenced,
it was not included.
I think that is conclusive of the legislature's intent
with respect to whether consent is required under 24(l),
which is the specific question before the court.
And it makes logical sense, Your Honors,
that the legislature has granted an individual
charged with simple OUI greater protection from evidence
of non-consensual testing versus a defendant
charged with more serious OUI offenses.
Where there's an actual victim of bodily injury or death
the defendant's interests diminish
in favor of the victim's and the Commonwealth's ability
to prove the case with the best elements,
or the best evidence possible.
The existence of the victim is a distinguishing factor.
And if the court has no further questions,
I'm happy to rest on my brief.