-: SJC-13458, Commonwealth v. John T. Cappellucci Jr.
Chief J. Budd: Okay, Attorney Johnson,
whenever you're ready.
-: Thank you, Your Honor, may it please the court.
Good morning, my name is Melissa Johnson.
I'm an assistant district attorney in Middlesex,
here on behalf of the Commonwealth.
With me at council table is ADA Daniel Balkan,
who is the trial ADA, and hopefully will remain so
if we can get this case back on track.
And so today we are asking this court to reverse
the motion judge's allowance of the motion
to suppress the state police toxicology results of blood,
of the defendant's blood that was procured
by the hospital for medical treatment purposes,
and later seized with a search warrant
based on probable cause.
Now, I would reiterate some of my arguments
that my colleague from Essex County,
I believe we have pretty much the same arguments
as opposed to OUI SBI,
and the canons of statutory construction
that dictated the results in Bohigan and Moreau.
-: Judge Cunis found, what Ms. Moriarty left off,
Judge Cunis found the opposite, right?
Of the absurd result.
Can you explain that to me?
And now who do we-
-: I wish I could explain completely why he found that way,
because he said we were technically correct,
and I'll take that.
He just thought that the result was absurd
and unworkable and unfair, which I haven't-
-: It has to do with where the statute lands.
Does it protect a defendant's charge with crimes
or does it affect the public
where the defendant's charged
with more serious crime, correct?
-: Right, and I think you hit on it just on the,
the nail on the head, Your Honor.
It's just this is a situation
where the legislature, within its purview, decided
to balance the rights of the driver
or defendant against the rights of the public
and the public's interest and public safety,
because there's, in those,
and I don't wanna call them run of the mill,
OUI simple, OUI liquor cases,
'cause nothing is run in the mill about it,
but simple OUI, the defendant will enjoy the right
to consent to a particular blood test.
Whether or not he's in the hospital
and the nurse is drawing it,
or the doctor is drawing it,
or whether or not the police are directing it,
it's the defendant that enjoys that in that simple case.
But with a situation where it's more serious, an OUI SBI,
an OUI drug, something that is a little bit more complex,
in that case, legislature has every right to decide that-
Justice: Where there's a victim.
-: What's that? -: Where there's a victim.
-: Where there's a victim, or if it's an OUI drugs,
which I'd like to discuss in a minute,
the legislature has the right to decide.
You know, the police should investigate this.
They have the right to pursue an investigation
and apply for a search warrant based upon probable cause,
and seize the evidence if they can meet that standard,
and continue on with their investigation.
It's balanced that right, and you can see it
in the plain language of the statute.
That 1A was, or I should say paragraph A,
that language was left alone for decades beyond the time
that 24L the OUI SBI statute was enacted,
well beyond that, just was left alone.
And if you look at the landscape of chapter 90,
all of those, not all of them,
but most of those sections,
the one right before, the one right after 24,
they're all mentioning specific offenses
and what applies in that particular section.
They never did that with 1E.
They never bothered to do that, and that is a sign
that the legislature simply wanted to leave that balancing
in that particular section for the defendant for just-
-: Both of these cases deal with obtaining a blood sample
after medical treatment, correct?
Atty. Johnson: Yes, I believe so,
the one before me, yes, Your Honor.
-: Right, and certainly yours?
Atty. Johnson: Yes.
-: If we rule in your favor, does it allow a police officer
to take blood without consent absent of medical treatment?
Atty. Johnson: I'm sorry, absent?
-: Absent medical treatment.
-: So are we talking, Your Honor, about A,
the 1F situation? J. Gaziano: Right.
-: No, Your Honor.
I believe that 1F is really a situation that talks
about the blood drawing, the initial blood draw.
J. Gaziano: That's still forboden.
-: That is, Your Honor.
This would not affect that, because if you think about it,
and if you read Bohigan, it's really talking
about that initial blood draw,
and that would apply to any OUI liquor offense, simple,
beyond that, because the whole policy reasons that
that statute enacted was to prevent that original kind
of confrontation between the suspect-
-: Right, which we discussed in Bohigan.
Atty. Johnson: Right, right.
-: But let me ask you, though, so the entire universe,
to your knowledge, of these cases involve
post medical treatment obtaining blood?
-: Yes, for 1E, I believe that 1E is really dealing more
with the admissibility of the blood
after it has already been drawn,
so it is uniquely applicable to a situation like this
where the hospital has drawn the blood,
and then the police want to go in and see may I test it.
-: And you've already won the state action part
of the motion?
-: Yes, so that is the difference between the two.
I think 1F definitely is governing the initial blood draw,
and which could be applicable to other OUI liquor offenses,
versus 1E, which really, as Justice Lowy hit on, is
the admissibility of that particular evidence
in a prosecution for simple OUI liquor.
-: I can't remember exactly where I read it.
It might've been in Judge Cunis's opinion,
but I think somewhere I read don't worry about it,
this is no big deal, because if the blood was taken
for the purposes of treatment, diagnosis
and treatment, then you got the medical report,
you can just call an expert to do a conversion.
Did I read that somewhere?
-: Yeah, that was Justice Cunis's memorandum.
Your Honor, I have a couple of responses to that.
Number one, just because we can get that evidence
from somewhere else doesn't mean that we're not allowed
to get the evidence through this means,
and nothing in 1A prevents us from doing that.
That's our argument.
The second argument,
there's some practical considerations with that.
Number one, the type of diagnostic test
that the hospital's using, we have no control over.
We have no control over the reliability.
It might be a rapid screen if it's an emergency situation.
We might not be able to use that later in trial
because of the reliability.
And the other issue is that we don't know
what substances they're testing for.
J. Gaziano: But you're not gonna get the fentanyl.
-: Exactly, because they are testing it
for a specific purpose, so we have no control over it,
and it will be helpful.
Certainly, Your Honor, absolutely,
we will use the medical records and get the conversion,
but there's nothing like having the state police test
for certain substances and for alcohol
in the precision that we require
for something to be admissible and probative.
-: Can I just make sure, is your understanding
that Moreau, you couldn't use the blood draw
because it was simple OUI?
-: Yes, I believe that the language said
that was the reason why 1A was applicable,
and why the consent issue was at play there was
because it was a simple OUI,
and I think it was a single car crash with the defendant.
-: And so here, because it's with serious bodily injury-
Atty. Johnson: Yes,
-: Same type of blood draw, but different prosecution,
different charges, so you can use it?
-: Exactly, and this is precisely
what Bohigan had basically envisioned.
This is an OUI SBI, it's a more serious offense.
It is not listed in 1E as a case
where we would require the defendant's consent
to the analysis of the blood already drawn.
So in that sense, the OUI SBI, that's what takes it out
of Moreau, because it is a more serious offense.
And the other issue that I wanted to draw on,
which my sister, because of her case,
I'm not really sure if drugs were at play there,
but the OUI drugs issue, we do have OUI drugs SBI,
and I don't think that
that particular issue has been addressed by this court.
And it is our position that neither 1E or 1F,
which is an issue in my particular case,
but neither of them apply to OUI drugs
or the testing of drugs.
There's nothing in the language of either of those statutes.
They were enacted for the purpose of both of the drawing
of blood for the purpose of obtaining blood alcohol content
and the admissibility of that blood alcohol content
for the purpose of determining whether someone was
under the influence of an intoxicating liquor.
There is nothing in either of those sections
that refers to OUI drugs.
-: It's okay to forcibly draw blood from somebody
if you're looking for something other than alcohol?
-: Well, Your Honor, with a warrant
or upon probable cause in exigent circumstances,
we know that that's constitutional under Bohigan,
and that was discussed, and there's no statutory overlay
that we had with 1F or 1E that would prevent it,
so it is constitutional with a search warrant,
or as I said, exigent circumstances in that situation
if you were looking to obtain evidence for OUI drugs.
So yes, so our position is that
those sections do not apply to OUI drugs.
If the legislature wants to enact something specifically
for that, that is their purview, but in this case,
OUI drugs is not at play in terms of these statutes.
-: So all the protections on Bohigan
in 1F are out the door?
Atty. Johnson: Yes.
-: Right, but your backstop is the Constitution.
-: Yes, absolutely, that is always the backstop is
the Constitution, as it is here in 1E
in our particular case.
What's driving the admissibility of-
-: If the person doesn't want to have the blood drawn?
Atty. Johnson: What's that?
-: So there's probable cause, there's exigent circumstances.
Atty. Johnson: Yes.
-: And the person's thrashing in the bed,
hold 'em down?
-: Well, Your Honor, if there's a search warrant
upon probable cause,
that is essentially what the constitution requires,
so yes, that is what happens,
and that is probably what drove part
of the holding in Bohigan.
It was that a recognition by those are situations
where we do wanna avoid, absolutely,
but there's nothing in the Constitution
that prevents that from happening.
And as Justice Wendlandt said,
that is really the backstop here is the Constitution.
It's not as if the defendant has no protection here
under 1E in our particular circumstance.
We still have to show that, like any piece of evidence
that was seized by the police,
that there was probable cause, and here,
we obtained a search warrant from a neutral
and detached magistrate based upon probable cause,
or that that was exigent circumstances.
So it's not like the defendant has no protections here,
there's just not some kind of statutory overlay,
which in Bohigan and Moreau, where this court said,
"Well, okay, it is constitutional,"
however, there's a statutory-
-: The entire statutory scheme that says alcohol
or intoxicating liquor,
the word drugs are nowhere in it.
-: There's nowhere in it for drugs.
And I do think, if you think about it,
to me, it's a recognition that
how extraordinarily difficult it is for-
-: Speaking of recognition, it's also the fallibility
of the DRE experts, right?
-: Yeah, I mean, I think it's extraordinarily difficult
to prove these cases for us,
unless we have some sort of toxicology report
showing exactly what this person had ingested
in terms of drugs, because under our statute
in Massachusetts, we have to identify the exact drug.
We know this guy is on something,
and we know by the way he's driving that he is on something,
but we have to prove the exact identity of the drugs.
-: I don't know if you're getting much sympathy for that.
So you get to strap somebody down and take their blood
because you have an element to prove in your case?
I'm not sure about that.
Can I ask you, though, a different question,
the same one I asked your,
well, I guess it's the prosecutor in the other case,
which is why is not a prosecution for a violation
of simple OUI subsumed within a prosecution
for violation of aggravated OUI?
-: Your Honor, I do believe that flies in the face
of the canons of statutory construction.
It has to be listed within the statute itself, or refer to-
-: What canon says that?
-: The canons that dictate that the plain and unambiguous-
-: Right, that's why I'm focusing you on the plain
and ordinary language of the statute,
which says a violation of simple OUI,
and my question to you is why isn't that also a violation
for aggravated OUI?
You've got the same elements that you have to prove.
-: Because it doesn't say a violation of simple OUI-
-: The indictment doesn't say that, is that why?
-: The statute says the violation of paragraph A.
J. Wendlandt: Right.
-: And there could not be more clear language.
Go back to paragraph A, and look at what's charged there,
and that is simple OUI or straight OUI without anything,
and that is the plain language of the statute.
And as I had said before, if the legislature had wanted
to add offenses in there, they could have done that.
If they wanted to add substances in there,
they could have done that.
They had plenty of time to do it, and they haven't done it,
so to me, the plain language of that statute is
the best evidence of legislative intent,
and that's what we have here,
their intent to leave it alone and balance the rights
of the defendant driver in a simple OUI case
against the defendant driver in a much more serious,
complex situation where victims are involved and injuries
or death are involved, and that's the balance
that the legislature is entitled to make,
and ask this court to reverse the motion to suppress ruling.
Thank you very much.
Unless there are any further questions,
I'll rest on my brief.
-: Thank you.
Atty. Johnson: Thank you.
-: Okay, Attorney Helwig.
-: Good morning, Madam Chief Justice, members of the court.
I'm Mark Helwig, I represent John Cappellucci,
and I'm asking that you not overturn Judge Cunis's decision.
I'd suggest again all of the issues about when I cite Roth,
that when you're prosecuting under an aggravated,
a lesser included is also being prosecuted,
it's impossible to take the two pieces apart,
and I'll just, I don't wanna repeat
what everybody else has said,
but I'll just point out a couple things.
Section 1E is the section
that allows the government to get in.
We're focusing on the provided that part
that says it has to be, there has to be consent,
but section 1E says in any prosecution under section A,
that the evidence of the weight of the alcohol
in the defendant's blood at the time
of the alleged offense as shown by chemical test
or analysis shall be deemed admissible and deemed relevant.
So if we're getting rid of 1E
for the provided of that section,
we're gonna get rid of 1E for this section, so I'm not-
-: Heck with the rest of the law of evidence,
that the relevance of what the blood is,
and the authentication required
to put in that evidence isn't available anyway?
-: Well, I'm not sure if it's available,
but I think it's gonna, now we're gonna have to have some,
there's gonna have to be some sort of basis.
The reason that-
-: How about it's relevance of the forensics
of how much alcohol is in the system?
-: I think that there still might have to be some sort
of expert analysis for that to put that in,
whereas here, they can just put it in
because the statute says it.
-: I thought you were saying, "Well, since it says that,
without it, it wouldn't be admissible,
so it makes no sense."
Atty. Helwig: Well, that's what I'm saying.
-: I mean, the statute doesn't eviscerate
the rest of the law of evidence.
-: Well, I guess I understand, but what I'm suggesting
that that would mean that this paragraph wouldn't apply
to a aggravated OUI, and so-
-: And I guess I, yeah, what's the point?
Atty. Helwig: My point-
-: Let's just say it doesn't.
-: Well, so if it doesn't, I think that it makes it harder
for the Commonwealth to prove an OUI.
-: Right, they just have to go to the rules of evidence
or the guidebook and figure it out
how do they're gonna get it in.
Atty. Helwig: Yes. -: Okay.
-: but I'm just saying there's two pieces to it too.
It's a sword for the Commonwealth
as well as for the defendant,
but the Commonwealth, I suggest, if I was arguing,
that they would need to have some sort of Daubert evidence,
some sort of expert to get it,
and they would say, as Judge Cunis said,
that that would be absurd
and unfair to the Commonwealth to have to do that.
To use, where the legislature says that they can use
this evidence in a case like this,
and so what I'm saying is that is just,
that's the same piece,
that this piece is the same piece,
is the same part of the statute that I'm defending.
And so I'm suggesting again,
my main focus is that you can't prosecute,
as you had indicated, you can't prosecute
a aggravated without including the lesser include,
so they are prosecuting the lesser included,
so the plain language doesn't exclude it, it's at best-
-: So you're, in your best case reading
of E is that it's ambiguous,
so tell me why you win anyway.
Atty. Helwig: If it's ambiguous?
-: Yeah.
-: If it's ambiguous, then I should win
because of the rule of lenity.
I put in my, where when it's not clear,
well, first of all, I suggest the purpose of the statute-
-: Clear in isolation,
but you look at the rest of the statute
as your opposing counsel has,
and there are places where the statute says elements.
There's places where the statute says,
you know, specific violations, and here, it doesn't.
And doesn't that tend towards the prosecutor's version
of the construction?
It's ambiguous in isolation, and I might grant you that,
but if you look at it in the context of the whole,
I think that gives more clarity to the language.
-: To me, the ambiguity is because of the lesser included,
because it's not clear.
I mean, are we prosecuting under this or are we not?
Because you kind of are,
and then I mean, if it does apply,
then it should apply, and the judge was right.
I think that's what I'm saying.
J. Wendlandt: Okay.
-: Counsel, if you could help me, I don't see this argument.
They're two separate crimes, okay?
So the serious SBI subsumes elements of simple OUI,
but why does that mean that it's one and the same?
They're separate crimes.
-: Well, I cite the Roth case.
-: I know you cite the Roth case,
but back to Justice Lowy's point,
so just because after the presentation of evidence,
the Commonwealth may not necessarily win
on the additional elements,
and the jury comes back with a lesser included,
why does that necessarily mean on the front end
that it's the same, for the purposes of the construction
of the consent, it's the same crime,
it's the same charge?
It's not the same charge.
-: So I'm not suggesting
that if there were different language, it could be clearer.
I'd suggest it's not clear what this means.
Even though the Commonwealth keeps saying it's clear,
I'd suggest it's not clear
because of the way that the prosecution works,
and the fact that you could be convicted of 1A.
If you can be convicted of 1A,
they must be prosecuting you under 1A,
or I don't see how you could be convicted
of a crime they're not prosecuting
-: So when they prosecute someone for murder one,
they prosecute 'em for manslaughter.
-: Yes, and assault and battery.
-: Assault and battery too.
So you tell your client, you know,
"You've been charged with assault and battery,
oh, and murder?"
-: Well, no, I'm not suggesting that,
but what I'm suggesting is these are special rules
dealing with OUIs.
If you were charging someone with something,
and the Commonwealth said, I mean, these are, you know,
if there was a different charge, if it was a murder charge,
then they could go and get a warrant and take these things.
But the purpose of the statutes here was to protect
people's privacy rights and not to have to consent.
-: Well, let me ask you a different question
on the drug part of it.
Atty. Helwig: Yes.
-: What's your position?
There's nowhere in the statute in any of it, does it say
anything other than alcohol or intoxicating liquor.
Do you want us to read in the words drugs?
-: Well, it says no such test or analysis shall be made.
I'm not sure, I mean, yes, I do want you to-
-: Okay-
-: Because I don't see how you can separate realistically
the two and say if we're not-
-: It would require us to read the term drugs into a statute
that doesn't say drugs, right?
-: Well, I think it would require just a blanket,
they can't test the blood that was taken
without the consent of-
-: These are statutory protections as opposed
to constitutional, right?
-: Yes, but it still says, I mean, again,
I think in 1E it says no such test
or analysis shall be made, or it might be in 1F.
Look, and I'm sorry, I don't see.
I look at 1F and 1E as the same rule.
I don't look at them as separate,
because in one of the cases, that Carson case,
the Chief Judge Armstrong dealt with them as one, 1E and 1F.
And when you take a look at 'em, 1E is talking, is saying
the government can get in blood alcohol level,
except, yeah, unless someone doesn't consent,
and then 1F says that everybody consents
to a blood test by driving on the roads,
except they can't force you to.
-: So basically, you're saying that
because it's an OUI and it's an OUI drugs,
all of the OUI protections statutory apply
equally to alcohol and drugs?
-: Yes, that's my position, and-
J. Lowy: That'd take a lot of rewriting.
-: Yeah.
-: Well, to me, I just don't,
I think as a practical matter,
it's difficult to separate the two.
-: Well, that may be true,
but that's not what the statute says.
-: Thank you.
I'm not sure if there's any other questions.
I'd like to rest on my brief.