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<v ->SJC-13458, Commonwealth v. John T. Cappellucci Jr.</v>

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<v Chief J. Budd>Okay, Attorney Johnson,</v>

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whenever you're ready.

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<v ->Thank you, Your Honor, may it please the court.</v>

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Good morning, my name is Melissa Johnson.

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I'm an assistant district attorney in Middlesex,

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here on behalf of the Commonwealth.

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With me at council table is ADA Daniel Balkan,

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who is the trial ADA, and hopefully will remain so

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if we can get this case back on track.

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And so today we are asking this court to reverse

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the motion judge's allowance of the motion

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to suppress the state police toxicology results of blood,

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of the defendant's blood that was procured

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by the hospital for medical treatment purposes,

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and later seized with a search warrant

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based on probable cause.

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Now, I would reiterate some of my arguments

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that my colleague from Essex County,

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I believe we have pretty much the same arguments

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as opposed to OUI SBI,

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and the canons of statutory construction

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that dictated the results in Bohigan and Moreau.

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<v ->Judge Cunis found, what Ms. Moriarty left off,</v>

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Judge Cunis found the opposite, right?

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Of the absurd result.

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Can you explain that to me?

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And now who do we-

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<v ->I wish I could explain completely why he found that way,</v>

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because he said we were technically correct,

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and I'll take that.

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He just thought that the result was absurd

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and unworkable and unfair, which I haven't-

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<v ->It has to do with where the statute lands.</v>

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Does it protect a defendant's charge with crimes

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or does it affect the public

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where the defendant's charged

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with more serious crime, correct?

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<v ->Right, and I think you hit on it just on the,</v>

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the nail on the head, Your Honor.

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It's just this is a situation

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where the legislature, within its purview, decided

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to balance the rights of the driver

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or defendant against the rights of the public

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and the public's interest and public safety,

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because there's, in those,

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and I don't wanna call them run of the mill,

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OUI simple, OUI liquor cases,

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'cause nothing is run in the mill about it,

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but simple OUI, the defendant will enjoy the right

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to consent to a particular blood test.

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Whether or not he's in the hospital

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and the nurse is drawing it,

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or the doctor is drawing it,

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or whether or not the police are directing it,

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it's the defendant that enjoys that in that simple case.

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But with a situation where it's more serious, an OUI SBI,

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an OUI drug, something that is a little bit more complex,

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in that case, legislature has every right to decide that-

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<v Justice>Where there's a victim.</v>

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<v ->What's that?</v>
<v ->Where there's a victim.</v>

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<v ->Where there's a victim, or if it's an OUI drugs,</v>

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which I'd like to discuss in a minute,

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the legislature has the right to decide.

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You know, the police should investigate this.

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They have the right to pursue an investigation

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and apply for a search warrant based upon probable cause,

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and seize the evidence if they can meet that standard,

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and continue on with their investigation.

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It's balanced that right, and you can see it

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in the plain language of the statute.

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That 1A was, or I should say paragraph A,

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that language was left alone for decades beyond the time

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that 24L the OUI SBI statute was enacted,

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well beyond that, just was left alone.

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And if you look at the landscape of chapter 90,

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all of those, not all of them,

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but most of those sections,

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the one right before, the one right after 24,

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they're all mentioning specific offenses

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and what applies in that particular section.

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They never did that with 1E.

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They never bothered to do that, and that is a sign

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that the legislature simply wanted to leave that balancing

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in that particular section for the defendant for just-

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<v ->Both of these cases deal with obtaining a blood sample</v>

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after medical treatment, correct?

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<v Atty. Johnson>Yes, I believe so,</v>

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the one before me, yes, Your Honor.

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<v ->Right, and certainly yours?</v>

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<v Atty. Johnson>Yes.</v>

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<v ->If we rule in your favor, does it allow a police officer</v>

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to take blood without consent absent of medical treatment?

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<v Atty. Johnson>I'm sorry, absent?</v>

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<v ->Absent medical treatment.</v>

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<v ->So are we talking, Your Honor, about A,</v>

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the 1F situation?
<v J. Gaziano>Right.</v>

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<v ->No, Your Honor.</v>

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I believe that 1F is really a situation that talks

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about the blood drawing, the initial blood draw.

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<v J. Gaziano>That's still forboden.</v>

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<v ->That is, Your Honor.</v>

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This would not affect that, because if you think about it,

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and if you read Bohigan, it's really talking

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about that initial blood draw,

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and that would apply to any OUI liquor offense, simple,

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beyond that, because the whole policy reasons that

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that statute enacted was to prevent that original kind

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of confrontation between the suspect-

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<v ->Right, which we discussed in Bohigan.</v>

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<v Atty. Johnson>Right, right.</v>

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<v ->But let me ask you, though, so the entire universe,</v>

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to your knowledge, of these cases involve

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post medical treatment obtaining blood?

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<v ->Yes, for 1E, I believe that 1E is really dealing more</v>

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with the admissibility of the blood

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after it has already been drawn,

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so it is uniquely applicable to a situation like this

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where the hospital has drawn the blood,

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and then the police want to go in and see may I test it.

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<v ->And you've already won the state action part</v>

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of the motion?

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<v ->Yes, so that is the difference between the two.</v>

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I think 1F definitely is governing the initial blood draw,

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and which could be applicable to other OUI liquor offenses,

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versus 1E, which really, as Justice Lowy hit on, is

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the admissibility of that particular evidence

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in a prosecution for simple OUI liquor.

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<v ->I can't remember exactly where I read it.</v>

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It might've been in Judge Cunis's opinion,

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but I think somewhere I read don't worry about it,

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this is no big deal, because if the blood was taken

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for the purposes of treatment, diagnosis

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and treatment, then you got the medical report,

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you can just call an expert to do a conversion.

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Did I read that somewhere?

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<v ->Yeah, that was Justice Cunis's memorandum.</v>

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Your Honor, I have a couple of responses to that.

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Number one, just because we can get that evidence

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from somewhere else doesn't mean that we're not allowed

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to get the evidence through this means,

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and nothing in 1A prevents us from doing that.

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That's our argument.

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The second argument,

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there's some practical considerations with that.

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Number one, the type of diagnostic test

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that the hospital's using, we have no control over.

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We have no control over the reliability.

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It might be a rapid screen if it's an emergency situation.

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We might not be able to use that later in trial

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because of the reliability.

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And the other issue is that we don't know

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what substances they're testing for.

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<v J. Gaziano>But you're not gonna get the fentanyl.</v>

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<v ->Exactly, because they are testing it</v>

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for a specific purpose, so we have no control over it,

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and it will be helpful.

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Certainly, Your Honor, absolutely,

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we will use the medical records and get the conversion,

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but there's nothing like having the state police test

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for certain substances and for alcohol

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in the precision that we require

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for something to be admissible and probative.

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<v ->Can I just make sure, is your understanding</v>

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that Moreau, you couldn't use the blood draw

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because it was simple OUI?

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<v ->Yes, I believe that the language said</v>

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that was the reason why 1A was applicable,

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and why the consent issue was at play there was

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because it was a simple OUI,

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and I think it was a single car crash with the defendant.

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<v ->And so here, because it's with serious bodily injury-</v>

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<v Atty. Johnson>Yes,</v>

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<v ->Same type of blood draw, but different prosecution,</v>

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different charges, so you can use it?

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<v ->Exactly, and this is precisely</v>

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what Bohigan had basically envisioned.

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This is an OUI SBI, it's a more serious offense.

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It is not listed in 1E as a case

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where we would require the defendant's consent

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to the analysis of the blood already drawn.

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So in that sense, the OUI SBI, that's what takes it out

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of Moreau, because it is a more serious offense.

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And the other issue that I wanted to draw on,

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which my sister, because of her case,

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I'm not really sure if drugs were at play there,

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but the OUI drugs issue, we do have OUI drugs SBI,

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and I don't think that

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that particular issue has been addressed by this court.

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And it is our position that neither 1E or 1F,

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which is an issue in my particular case,

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but neither of them apply to OUI drugs

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or the testing of drugs.

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There's nothing in the language of either of those statutes.

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They were enacted for the purpose of both of the drawing

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of blood for the purpose of obtaining blood alcohol content

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and the admissibility of that blood alcohol content

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for the purpose of determining whether someone was

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under the influence of an intoxicating liquor.

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There is nothing in either of those sections

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that refers to OUI drugs.

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<v ->It's okay to forcibly draw blood from somebody</v>

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if you're looking for something other than alcohol?

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<v ->Well, Your Honor, with a warrant</v>

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or upon probable cause in exigent circumstances,

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we know that that's constitutional under Bohigan,

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and that was discussed, and there's no statutory overlay

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that we had with 1F or 1E that would prevent it,

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so it is constitutional with a search warrant,

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or as I said, exigent circumstances in that situation

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if you were looking to obtain evidence for OUI drugs.

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So yes, so our position is that

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those sections do not apply to OUI drugs.

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If the legislature wants to enact something specifically

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for that, that is their purview, but in this case,

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OUI drugs is not at play in terms of these statutes.

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<v ->So all the protections on Bohigan</v>

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in 1F are out the door?

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<v Atty. Johnson>Yes.</v>

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<v ->Right, but your backstop is the Constitution.</v>

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<v ->Yes, absolutely, that is always the backstop is</v>

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the Constitution, as it is here in 1E

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in our particular case.

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What's driving the admissibility of-

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<v ->If the person doesn't want to have the blood drawn?</v>

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<v Atty. Johnson>What's that?</v>

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<v ->So there's probable cause, there's exigent circumstances.</v>

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<v Atty. Johnson>Yes.</v>

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<v ->And the person's thrashing in the bed,</v>

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hold 'em down?

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<v ->Well, Your Honor, if there's a search warrant</v>

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upon probable cause,

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that is essentially what the constitution requires,

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so yes, that is what happens,

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and that is probably what drove part

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of the holding in Bohigan.

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It was that a recognition by those are situations

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where we do wanna avoid, absolutely,

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but there's nothing in the Constitution

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that prevents that from happening.

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And as Justice Wendlandt said,

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that is really the backstop here is the Constitution.

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It's not as if the defendant has no protection here

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under 1E in our particular circumstance.

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We still have to show that, like any piece of evidence

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that was seized by the police,

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that there was probable cause, and here,

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we obtained a search warrant from a neutral

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and detached magistrate based upon probable cause,

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or that that was exigent circumstances.

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So it's not like the defendant has no protections here,

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there's just not some kind of statutory overlay,

253
00:12:18.270 --> 00:12:22.117
which in Bohigan and Moreau, where this court said,

254
00:12:22.117 --> 00:12:24.014
"Well, okay, it is constitutional,"

255
00:12:24.014 --> 00:12:26.250
however, there's a statutory-

256
00:12:26.250 --> 00:12:28.980
<v ->The entire statutory scheme that says alcohol</v>

257
00:12:28.980 --> 00:12:30.090
or intoxicating liquor,

258
00:12:30.090 --> 00:12:31.380
the word drugs are nowhere in it.

259
00:12:31.380 --> 00:12:32.801
<v ->There's nowhere in it for drugs.</v>

260
00:12:32.801 --> 00:12:36.240
And I do think, if you think about it,

261
00:12:36.240 --> 00:12:38.130
to me, it's a recognition that

262
00:12:38.130 --> 00:12:40.800
how extraordinarily difficult it is for-

263
00:12:40.800 --> 00:12:43.440
<v ->Speaking of recognition, it's also the fallibility</v>

264
00:12:43.440 --> 00:12:45.303
of the DRE experts, right?

265
00:12:46.590 --> 00:12:50.490
<v ->Yeah, I mean, I think it's extraordinarily difficult</v>

266
00:12:50.490 --> 00:12:52.650
to prove these cases for us,

267
00:12:52.650 --> 00:12:57.650
unless we have some sort of toxicology report

268
00:12:58.020 --> 00:13:02.160
showing exactly what this person had ingested

269
00:13:02.160 --> 00:13:04.770
in terms of drugs, because under our statute

270
00:13:04.770 --> 00:13:08.700
in Massachusetts, we have to identify the exact drug.

271
00:13:08.700 --> 00:13:10.560
We know this guy is on something,

272
00:13:10.560 --> 00:13:13.680
and we know by the way he's driving that he is on something,

273
00:13:13.680 --> 00:13:16.903
but we have to prove the exact identity of the drugs.

274
00:13:16.903 --> 00:13:18.450
<v ->I don't know if you're getting much sympathy for that.</v>

275
00:13:18.450 --> 00:13:20.670
So you get to strap somebody down and take their blood

276
00:13:20.670 --> 00:13:23.640
because you have an element to prove in your case?

277
00:13:23.640 --> 00:13:24.473
I'm not sure about that.

278
00:13:24.473 --> 00:13:26.220
Can I ask you, though, a different question,

279
00:13:26.220 --> 00:13:27.573
the same one I asked your,

280
00:13:28.640 --> 00:13:33.570
well, I guess it's the prosecutor in the other case,

281
00:13:33.570 --> 00:13:38.370
which is why is not a prosecution for a violation

282
00:13:38.370 --> 00:13:42.900
of simple OUI subsumed within a prosecution

283
00:13:42.900 --> 00:13:46.350
for violation of aggravated OUI?

284
00:13:46.350 --> 00:13:48.840
<v ->Your Honor, I do believe that flies in the face</v>

285
00:13:48.840 --> 00:13:50.970
of the canons of statutory construction.

286
00:13:50.970 --> 00:13:55.970
It has to be listed within the statute itself, or refer to-

287
00:13:56.373 --> 00:13:58.440
<v ->What canon says that?</v>

288
00:13:58.440 --> 00:14:02.010
<v ->The canons that dictate that the plain and unambiguous-</v>

289
00:14:02.010 --> 00:14:03.780
<v ->Right, that's why I'm focusing you on the plain</v>

290
00:14:03.780 --> 00:14:05.580
and ordinary language of the statute,

291
00:14:05.580 --> 00:14:09.540
which says a violation of simple OUI,

292
00:14:09.540 --> 00:14:13.590
and my question to you is why isn't that also a violation

293
00:14:13.590 --> 00:14:14.940
for aggravated OUI?

294
00:14:14.940 --> 00:14:17.520
You've got the same elements that you have to prove.

295
00:14:17.520 --> 00:14:20.970
<v ->Because it doesn't say a violation of simple OUI-</v>

296
00:14:20.970 --> 00:14:23.883
<v ->The indictment doesn't say that, is that why?</v>

297
00:14:25.020 --> 00:14:28.546
<v ->The statute says the violation of paragraph A.</v>

298
00:14:28.546 --> 00:14:29.379
<v J. Wendlandt>Right.</v>

299
00:14:29.379 --> 00:14:31.410
<v ->And there could not be more clear language.</v>

300
00:14:31.410 --> 00:14:35.910
Go back to paragraph A, and look at what's charged there,

301
00:14:37.320 --> 00:14:42.000
and that is simple OUI or straight OUI without anything,

302
00:14:42.000 --> 00:14:44.643
and that is the plain language of the statute.

303
00:14:45.600 --> 00:14:50.280
And as I had said before, if the legislature had wanted

304
00:14:50.280 --> 00:14:52.650
to add offenses in there, they could have done that.

305
00:14:52.650 --> 00:14:54.840
If they wanted to add substances in there,

306
00:14:54.840 --> 00:14:55.710
they could have done that.

307
00:14:55.710 --> 00:14:59.477
They had plenty of time to do it, and they haven't done it,

308
00:14:59.477 --> 00:15:04.477
so to me, the plain language of that statute is

309
00:15:04.890 --> 00:15:08.100
the best evidence of legislative intent,

310
00:15:08.100 --> 00:15:09.720
and that's what we have here,

311
00:15:09.720 --> 00:15:13.050
their intent to leave it alone and balance the rights

312
00:15:13.050 --> 00:15:16.020
of the defendant driver in a simple OUI case

313
00:15:16.020 --> 00:15:19.350
against the defendant driver in a much more serious,

314
00:15:19.350 --> 00:15:23.700
complex situation where victims are involved and injuries

315
00:15:23.700 --> 00:15:26.370
or death are involved, and that's the balance

316
00:15:26.370 --> 00:15:28.710
that the legislature is entitled to make,

317
00:15:28.710 --> 00:15:33.633
and ask this court to reverse the motion to suppress ruling.

318
00:15:34.770 --> 00:15:35.640
Thank you very much.

319
00:15:35.640 --> 00:15:38.250
Unless there are any further questions,

320
00:15:38.250 --> 00:15:39.360
I'll rest on my brief.

321
00:15:39.360 --> 00:15:40.193
<v ->Thank you.</v>

322
00:15:40.193 --> 00:15:41.063
<v Atty. Johnson>Thank you.</v>

323
00:15:42.240 --> 00:15:43.440
<v ->Okay, Attorney Helwig.</v>

324
00:15:51.870 --> 00:15:55.260
<v ->Good morning, Madam Chief Justice, members of the court.</v>

325
00:15:55.260 --> 00:15:57.870
I'm Mark Helwig, I represent John Cappellucci,

326
00:15:57.870 --> 00:16:02.790
and I'm asking that you not overturn Judge Cunis's decision.

327
00:16:02.790 --> 00:16:07.790
I'd suggest again all of the issues about when I cite Roth,

328
00:16:08.790 --> 00:16:11.670
that when you're prosecuting under an aggravated,

329
00:16:11.670 --> 00:16:14.700
a lesser included is also being prosecuted,

330
00:16:14.700 --> 00:16:17.370
it's impossible to take the two pieces apart,

331
00:16:17.370 --> 00:16:19.200
and I'll just, I don't wanna repeat

332
00:16:19.200 --> 00:16:20.610
what everybody else has said,

333
00:16:20.610 --> 00:16:23.820
but I'll just point out a couple things.

334
00:16:23.820 --> 00:16:25.920
Section 1E is the section

335
00:16:25.920 --> 00:16:28.443
that allows the government to get in.

336
00:16:28.443 --> 00:16:31.170
We're focusing on the provided that part

337
00:16:31.170 --> 00:16:34.500
that says it has to be, there has to be consent,

338
00:16:34.500 --> 00:16:38.875
but section 1E says in any prosecution under section A,

339
00:16:38.875 --> 00:16:41.420
that the evidence of the weight of the alcohol

340
00:16:41.420 --> 00:16:43.050
in the defendant's blood at the time

341
00:16:43.050 --> 00:16:45.930
of the alleged offense as shown by chemical test

342
00:16:45.930 --> 00:16:50.040
or analysis shall be deemed admissible and deemed relevant.

343
00:16:50.040 --> 00:16:53.310
So if we're getting rid of 1E

344
00:16:53.310 --> 00:16:55.620
for the provided of that section,

345
00:16:55.620 --> 00:16:58.170
we're gonna get rid of 1E for this section, so I'm not-

346
00:16:58.170 --> 00:17:00.510
<v ->Heck with the rest of the law of evidence,</v>

347
00:17:00.510 --> 00:17:03.420
that the relevance of what the blood is,

348
00:17:03.420 --> 00:17:06.450
and the authentication required

349
00:17:06.450 --> 00:17:10.710
to put in that evidence isn't available anyway?

350
00:17:10.710 --> 00:17:12.450
<v ->Well, I'm not sure if it's available,</v>

351
00:17:12.450 --> 00:17:15.480
but I think it's gonna, now we're gonna have to have some,

352
00:17:15.480 --> 00:17:17.370
there's gonna have to be some sort of basis.

353
00:17:17.370 --> 00:17:18.990
The reason that-

354
00:17:18.990 --> 00:17:22.920
<v ->How about it's relevance of the forensics</v>

355
00:17:22.920 --> 00:17:25.323
of how much alcohol is in the system?

356
00:17:26.490 --> 00:17:28.620
<v ->I think that there still might have to be some sort</v>

357
00:17:28.620 --> 00:17:31.740
of expert analysis for that to put that in,

358
00:17:31.740 --> 00:17:33.000
whereas here, they can just put it in

359
00:17:33.000 --> 00:17:34.050
because the statute says it.

360
00:17:34.050 --> 00:17:35.940
<v ->I thought you were saying, "Well, since it says that,</v>

361
00:17:35.940 --> 00:17:37.530
without it, it wouldn't be admissible,

362
00:17:37.530 --> 00:17:38.640
so it makes no sense."

363
00:17:38.640 --> 00:17:40.005
<v Atty. Helwig>Well, that's what I'm saying.</v>

364
00:17:40.005 --> 00:17:41.040
<v ->I mean, the statute doesn't eviscerate</v>

365
00:17:41.040 --> 00:17:42.330
the rest of the law of evidence.

366
00:17:42.330 --> 00:17:44.763
<v ->Well, I guess I understand, but what I'm suggesting</v>

367
00:17:44.763 --> 00:17:49.763
that that would mean that this paragraph wouldn't apply

368
00:17:50.640 --> 00:17:53.550
to a aggravated OUI, and so-

369
00:17:53.550 --> 00:17:55.560
<v ->And I guess I, yeah, what's the point?</v>

370
00:17:55.560 --> 00:17:56.393
<v Atty. Helwig>My point-</v>

371
00:17:56.393 --> 00:17:57.450
<v ->Let's just say it doesn't.</v>

372
00:17:57.450 --> 00:17:59.970
<v ->Well, so if it doesn't, I think that it makes it harder</v>

373
00:17:59.970 --> 00:18:01.650
for the Commonwealth to prove an OUI.

374
00:18:01.650 --> 00:18:03.590
<v ->Right, they just have to go to the rules of evidence</v>

375
00:18:03.590 --> 00:18:05.190
or the guidebook and figure it out

376
00:18:05.190 --> 00:18:06.463
how do they're gonna get it in.

377
00:18:06.463 --> 00:18:08.267
<v Atty. Helwig>Yes.</v>
<v ->Okay.</v>

378
00:18:08.267 --> 00:18:11.880
<v ->but I'm just saying there's two pieces to it too.</v>

379
00:18:11.880 --> 00:18:13.290
It's a sword for the Commonwealth

380
00:18:13.290 --> 00:18:15.090
as well as for the defendant,

381
00:18:15.090 --> 00:18:17.910
but the Commonwealth, I suggest, if I was arguing,

382
00:18:17.910 --> 00:18:21.516
that they would need to have some sort of Daubert evidence,

383
00:18:21.516 --> 00:18:24.240
some sort of expert to get it,

384
00:18:24.240 --> 00:18:26.340
and they would say, as Judge Cunis said,

385
00:18:26.340 --> 00:18:27.630
that that would be absurd

386
00:18:27.630 --> 00:18:30.480
and unfair to the Commonwealth to have to do that.

387
00:18:30.480 --> 00:18:35.130
To use, where the legislature says that they can use

388
00:18:35.130 --> 00:18:38.250
this evidence in a case like this,

389
00:18:38.250 --> 00:18:40.500
and so what I'm saying is that is just,

390
00:18:40.500 --> 00:18:41.760
that's the same piece,

391
00:18:41.760 --> 00:18:44.040
that this piece is the same piece,

392
00:18:44.040 --> 00:18:46.860
is the same part of the statute that I'm defending.

393
00:18:46.860 --> 00:18:49.413
And so I'm suggesting again,

394
00:18:50.580 --> 00:18:54.434
my main focus is that you can't prosecute,

395
00:18:54.434 --> 00:18:57.573
as you had indicated, you can't prosecute

396
00:18:57.573 --> 00:19:01.110
a aggravated without including the lesser include,

397
00:19:01.110 --> 00:19:03.180
so they are prosecuting the lesser included,

398
00:19:03.180 --> 00:19:07.380
so the plain language doesn't exclude it, it's at best-

399
00:19:07.380 --> 00:19:09.750
<v ->So you're, in your best case reading</v>

400
00:19:09.750 --> 00:19:12.630
of E is that it's ambiguous,

401
00:19:12.630 --> 00:19:14.970
so tell me why you win anyway.

402
00:19:14.970 --> 00:19:16.110
<v Atty. Helwig>If it's ambiguous?</v>

403
00:19:16.110 --> 00:19:16.943
<v ->Yeah.</v>

404
00:19:16.943 --> 00:19:20.370
<v ->If it's ambiguous, then I should win</v>

405
00:19:20.370 --> 00:19:22.050
because of the rule of lenity.

406
00:19:22.050 --> 00:19:24.690
I put in my, where when it's not clear,

407
00:19:24.690 --> 00:19:26.590
well, first of all, I suggest the purpose of the statute-

408
00:19:26.590 --> 00:19:28.050
<v ->Clear in isolation,</v>

409
00:19:28.050 --> 00:19:29.820
but you look at the rest of the statute

410
00:19:29.820 --> 00:19:31.920
as your opposing counsel has,

411
00:19:31.920 --> 00:19:35.670
and there are places where the statute says elements.

412
00:19:35.670 --> 00:19:38.040
There's places where the statute says,

413
00:19:38.040 --> 00:19:43.040
you know, specific violations, and here, it doesn't.

414
00:19:44.250 --> 00:19:49.250
And doesn't that tend towards the prosecutor's version

415
00:19:50.490 --> 00:19:51.903
of the construction?

416
00:19:53.370 --> 00:19:56.790
It's ambiguous in isolation, and I might grant you that,

417
00:19:56.790 --> 00:20:00.093
but if you look at it in the context of the whole,

418
00:20:01.080 --> 00:20:05.533
I think that gives more clarity to the language.

419
00:20:05.533 --> 00:20:09.210
<v ->To me, the ambiguity is because of the lesser included,</v>

420
00:20:09.210 --> 00:20:10.560
because it's not clear.

421
00:20:10.560 --> 00:20:13.710
I mean, are we prosecuting under this or are we not?

422
00:20:13.710 --> 00:20:15.510
Because you kind of are,

423
00:20:15.510 --> 00:20:20.510
and then I mean, if it does apply,

424
00:20:22.680 --> 00:20:25.140
then it should apply, and the judge was right.

425
00:20:25.140 --> 00:20:26.850
I think that's what I'm saying.

426
00:20:26.850 --> 00:20:27.960
<v J. Wendlandt>Okay.</v>

427
00:20:27.960 --> 00:20:32.610
<v ->Counsel, if you could help me, I don't see this argument.</v>

428
00:20:32.610 --> 00:20:34.650
They're two separate crimes, okay?

429
00:20:34.650 --> 00:20:39.650
So the serious SBI subsumes elements of simple OUI,

430
00:20:41.430 --> 00:20:43.740
but why does that mean that it's one and the same?

431
00:20:43.740 --> 00:20:45.480
They're separate crimes.

432
00:20:45.480 --> 00:20:46.980
<v ->Well, I cite the Roth case.</v>

433
00:20:46.980 --> 00:20:49.020
<v ->I know you cite the Roth case,</v>

434
00:20:49.020 --> 00:20:53.160
but back to Justice Lowy's point,

435
00:20:53.160 --> 00:20:56.280
so just because after the presentation of evidence,

436
00:20:56.280 --> 00:20:59.550
the Commonwealth may not necessarily win

437
00:20:59.550 --> 00:21:01.050
on the additional elements,

438
00:21:01.050 --> 00:21:03.750
and the jury comes back with a lesser included,

439
00:21:03.750 --> 00:21:06.510
why does that necessarily mean on the front end

440
00:21:06.510 --> 00:21:09.995
that it's the same, for the purposes of the construction

441
00:21:09.995 --> 00:21:13.560
of the consent, it's the same crime,

442
00:21:13.560 --> 00:21:14.610
it's the same charge?

443
00:21:14.610 --> 00:21:15.860
It's not the same charge.

444
00:21:16.740 --> 00:21:18.270
<v ->So I'm not suggesting</v>

445
00:21:18.270 --> 00:21:20.940
that if there were different language, it could be clearer.

446
00:21:20.940 --> 00:21:23.790
I'd suggest it's not clear what this means.

447
00:21:23.790 --> 00:21:26.340
Even though the Commonwealth keeps saying it's clear,

448
00:21:26.340 --> 00:21:27.450
I'd suggest it's not clear

449
00:21:27.450 --> 00:21:31.653
because of the way that the prosecution works,

450
00:21:35.550 --> 00:21:37.923
and the fact that you could be convicted of 1A.

451
00:21:39.300 --> 00:21:40.890
If you can be convicted of 1A,

452
00:21:40.890 --> 00:21:43.053
they must be prosecuting you under 1A,

453
00:21:44.657 --> 00:21:47.400
or I don't see how you could be convicted

454
00:21:47.400 --> 00:21:48.600
of a crime they're not prosecuting

455
00:21:48.600 --> 00:21:50.490
<v ->So when they prosecute someone for murder one,</v>

456
00:21:50.490 --> 00:21:52.200
they prosecute 'em for manslaughter.

457
00:21:52.200 --> 00:21:56.130
<v ->Yes, and assault and battery.</v>

458
00:21:56.130 --> 00:21:57.430
<v ->Assault and battery too.</v>

459
00:21:58.292 --> 00:22:00.667
So you tell your client, you know,

460
00:22:00.667 --> 00:22:02.400
"You've been charged with assault and battery,

461
00:22:02.400 --> 00:22:03.960
oh, and murder?"

462
00:22:03.960 --> 00:22:05.850
<v ->Well, no, I'm not suggesting that,</v>

463
00:22:05.850 --> 00:22:08.280
but what I'm suggesting is these are special rules

464
00:22:08.280 --> 00:22:09.570
dealing with OUIs.

465
00:22:09.570 --> 00:22:12.360
If you were charging someone with something,

466
00:22:12.360 --> 00:22:15.330
and the Commonwealth said, I mean, these are, you know,

467
00:22:15.330 --> 00:22:17.700
if there was a different charge, if it was a murder charge,

468
00:22:17.700 --> 00:22:22.110
then they could go and get a warrant and take these things.

469
00:22:22.110 --> 00:22:25.140
But the purpose of the statutes here was to protect

470
00:22:25.140 --> 00:22:29.370
people's privacy rights and not to have to consent.

471
00:22:29.370 --> 00:22:30.930
<v ->Well, let me ask you a different question</v>

472
00:22:30.930 --> 00:22:32.910
on the drug part of it.

473
00:22:32.910 --> 00:22:34.320
<v Atty. Helwig>Yes.</v>

474
00:22:34.320 --> 00:22:35.553
<v ->What's your position?</v>

475
00:22:36.420 --> 00:22:39.990
There's nowhere in the statute in any of it, does it say

476
00:22:39.990 --> 00:22:42.780
anything other than alcohol or intoxicating liquor.

477
00:22:42.780 --> 00:22:45.570
Do you want us to read in the words drugs?

478
00:22:45.570 --> 00:22:49.590
<v ->Well, it says no such test or analysis shall be made.</v>

479
00:22:49.590 --> 00:22:52.140
I'm not sure, I mean, yes, I do want you to-

480
00:22:52.140 --> 00:22:52.973
<v ->Okay-</v>

481
00:22:52.973 --> 00:22:56.100
<v ->Because I don't see how you can separate realistically</v>

482
00:22:56.100 --> 00:22:57.960
the two and say if we're not-

483
00:22:57.960 --> 00:23:01.140
<v ->It would require us to read the term drugs into a statute</v>

484
00:23:01.140 --> 00:23:02.580
that doesn't say drugs, right?

485
00:23:02.580 --> 00:23:07.580
<v ->Well, I think it would require just a blanket,</v>

486
00:23:09.810 --> 00:23:12.360
they can't test the blood that was taken

487
00:23:12.360 --> 00:23:13.740
without the consent of-

488
00:23:13.740 --> 00:23:15.750
<v ->These are statutory protections as opposed</v>

489
00:23:15.750 --> 00:23:17.430
to constitutional, right?

490
00:23:17.430 --> 00:23:21.480
<v ->Yes, but it still says, I mean, again,</v>

491
00:23:21.480 --> 00:23:26.280
I think in 1E it says no such test

492
00:23:26.280 --> 00:23:29.850
or analysis shall be made, or it might be in 1F.

493
00:23:29.850 --> 00:23:32.722
Look, and I'm sorry, I don't see.

494
00:23:32.722 --> 00:23:37.410
I look at 1F and 1E as the same rule.

495
00:23:37.410 --> 00:23:39.150
I don't look at them as separate,

496
00:23:39.150 --> 00:23:44.150
because in one of the cases, that Carson case,

497
00:23:44.820 --> 00:23:49.820
the Chief Judge Armstrong dealt with them as one, 1E and 1F.

498
00:23:50.190 --> 00:23:53.890
And when you take a look at 'em, 1E is talking, is saying

499
00:23:55.410 --> 00:23:57.780
the government can get in blood alcohol level,

500
00:23:57.780 --> 00:24:00.600
except, yeah, unless someone doesn't consent,

501
00:24:00.600 --> 00:24:04.620
and then 1F says that everybody consents

502
00:24:04.620 --> 00:24:06.900
to a blood test by driving on the roads,

503
00:24:06.900 --> 00:24:08.250
except they can't force you to.

504
00:24:08.250 --> 00:24:10.798
<v ->So basically, you're saying that</v>

505
00:24:10.798 --> 00:24:14.370
because it's an OUI and it's an OUI drugs,

506
00:24:14.370 --> 00:24:18.030
all of the OUI protections statutory apply

507
00:24:18.030 --> 00:24:19.710
equally to alcohol and drugs?

508
00:24:19.710 --> 00:24:22.980
<v ->Yes, that's my position, and-</v>

509
00:24:31.039 --> 00:24:32.070
<v J. Lowy>That'd take a lot of rewriting.</v>

510
00:24:32.070 --> 00:24:32.903
<v ->Yeah.</v>

511
00:24:32.903 --> 00:24:35.973
<v ->Well, to me, I just don't,</v>

512
00:24:38.550 --> 00:24:39.930
I think as a practical matter,

513
00:24:39.930 --> 00:24:42.480
it's difficult to separate the two.

514
00:24:42.480 --> 00:24:43.590
<v ->Well, that may be true,</v>

515
00:24:43.590 --> 00:24:45.933
but that's not what the statute says.

516
00:24:47.850 --> 00:24:49.350
<v ->Thank you.</v>

517
00:24:49.350 --> 00:24:50.820
I'm not sure if there's any other questions.

518
00:24:50.820 --> 00:24:52.803
I'd like to rest on my brief.