-: SJC 13659,
Commonwealth versus Denny Gannett.
-: Okay, Attorney Hennessey.
-: Good morning, Chief Justice Budd and Associate Justices.
And may it please the court,
Kevin Hennessey appearing on behalf of the Commonwealth.
I'm joined at counsel table by my colleague,
ADA Marina Moriarty.
The Commonwealth is requesting that this court
reverse the trial judge's allowance
of a motion to eliminate,
to suppress the results of a serum conversion
of existing serum ethanol records
reflected in the defendant's medical records
that were obtained without the involvement
of law enforcement.
This case centers on a question of statutory interpretation
regarding the consent provision
in the operating under the influence statute,
General Law Chapter 90, Section 24 (1) (e),
that has implications for the admissibility
of serum conversion results
in a number of operating under the influence prosecutions
across the Commonwealth.
The plain language of the statute
that the legislature chose,
the tenets of statutory interpretation
endorsed by this court,
as well as this court's construction of the statute
in Moreau and Bohigian lead to the conclusion that a serum,
the application of a mathematical serum conversion factor
to existing serum ethanol results
that are reflected in medical records,
a serum ethanol result that was obtained
without the involvement of law enforcement,
and after a blood draw that the defendant consented to,
that in those circumstances,
the mathematical conversion of the serum result
does not constitute a chemical test or analysis
of the defendant's blood as would be required
for the serum conversion factor to be excluded
under the statute.
-: So, Counsel, can you just explain to me
what happened here?
You have the test results from the medical record,
and those are input to some sort of algorithm
that spits out, what, the blood alcohol content, or?
-: [Attorney Hennessey] Your Honor,
essentially what happened in this case was,
following his arrest for operating under the influence,
through events, the defendant was transported
to Beverly Hospital.
-: No, I'm asking more about the algorithm.
I don't need to know the details.
But is it that you take the medical record results
and you input them into some equation,
and that that spits out something related
to the blood alcohol content of the defendant's blood?
-: When the hospital draws the defendant's blood,
it's in a serum ethanol result.
It's in a serum ethanol form.
The hospital essentially separates the solid portions
of the blood, proteins and such,
from the liquid portion of the blood
to get a serum ethanol result,
which is always going to be higher
than the whole blood alcohol content level.
Because serum, the water has an affinity for ethanol.
And what the Commonwealth did in this case
was get that serum ethanol result in the medical records,
send it to the state police crime lab.
A forensic scientist at the state police crime lab,
using a range of scientifically accepted conversion factors,
simply did a a couple of quick division problems
and converted the 292 milligrams per deciliter
serum methanol result
into a whole blood alcohol content level
with a range from anywhere, on the low end, a 0.24 BAC
to, on the high end, a 0.26 BAC.
So the forensic scientist at the state police crime lab,
in this case...
-: [Justice Wendlandt] Is it like a lookup table?
-: It's essentially dividing
the 292 milligram per deciliter result by 1,000,
and then multiplying that result by the conversion factors.
Which the conversion factors used
by the state police crime lab at the time
was 1.12, 1.14, and 1.18.
And that second number is divided
by those conversion factors
to get the whole blood alcohol content level.
Justice Georges: So why isn't that analysis?
Why isn't that definitionally analysis?
-: Because, Your Honor,
the statute has to be read as its whole.
And the statute says explicitly,
"chemical test or analysis of the defendant's blood."
-: [Justice Wendlandt] So your position is
that chemical modifies analysis as well as test?
-: Yes, Your Honor.
And I would suggest that this is supported
by this court's interpretation of the statute
in Footnote 5 in the Moreau decision.
This court makes reference to the fact
that chemical tests or analysis
refers to later reference in the statute
when it's just referenced as a test or analysis.
But also, Your honor, it's of the defendant's blood.
So that connotes that what the legislature was trying
to get at here was when law enforcement are actually testing
or analyzing, doing something to the blood sample itself.
And what happened...
-: Although, you know, when you do math
on somebody's blood serum, whatever you call that vial,
it's an analysis of the blood.
I mean, I think your stronger argument
is whether or not it's a chemical analysis of the blood.
It certainly is a mathematical analysis of the blood.
There's some algorithm,
as you were eloquently describing it,
of what came into the vial
and the results from that division multiplication.
And then you spit out some relevant element
for the Commonwealth, right?
So there's definitely a mathematical analysis of the blood.
It's not directly of the blood, but it's of the blood.
-: And if the legislature hadn't also included
the word chemical, then I'd agree with the court
that the Commonwealth would be
in a much weaker position here.
But what the forensic scientist at the lab did
is in many ways comparable to applying a conversion factor
to inches and converting it to centimeters.
Because the forensic scientist,
or somebody making that conversion,
they're not gonna go out and remeasure the distance.
They're simply gonna apply the conversion factor
to that existing result
and convert it to inches or centimeters
or from kilograms to pounds.
And that's essentially what the forensic scientists
at the state police crime lab did in this case.
The existing serum result that's obtained
without the involvement of law enforcement
and is reflected in the defendant's medical records
is accepted as true.
And then, the conversion factors are applied
to that existing result.
-: Excuse me, Counsel, beyond the question
whether chemical modifies both tests and analysis
and beyond the meaning of the word analysis,
do you have any arguments about the purposes
of the legislature here
as reflected in the text of the statute
and how your reading is or is not
more consistent with those purposes?
-: Your Honor, I would suggest that as this court
has commented on in the Moreau and Bohigian decisions,
it appears just from the text of the legislature
that lawmakers were grappling with a variety of concerns
when enacting these provisions,
including public safety concerns
but also bodily autonomy concerns.
And I would suggest that construing the statute
in the way suggested by the Commonwealth
would reflect a reasonable compromise
of these competing goals.
Because, in this case, the medical records
are going to exist whether the police are involved or not.
And it would've been sensible for lawmakers to conclude,
to flatly prohibit non-consensual blood draws,
but also to prohibit non-consensual tests
or analyses of blood when it's conducted by
or at the direction of law enforcement.
But in this case, where the medical records
are going to exist regardless of what the police do,
that in such circumstances,
highly reliable blood test evidence
that's going to be crucial to the trier of fact in a trial
should be brought to the attention of a jury.
Where the medical records are going to exist regardless,
and what the Commonwealth is doing
is just accessing those records
and having a expert witness from the state police crime lab
or forensic scientist convert those existing test results
into a whole blood alcohol content level
so it can be admitted at trial.
So in many ways, Your Honor,
what the forensic scientist does in this case
is akin to a medical doctor
testifying as an expert witness at trial
and explaining complicated medical terms to a jury.
And that doctor doesn't necessarily have to have been
the doctor who treated the patient.
But the case law permits the doctor
to explain those complicated terms to a jury.
But the crucial point is that
the forensic scientist from the state police crime lab
is not chemically analyzing the defendant's blood.
The chemical analysis of the defendant's blood
is done at the hospital.
So, consistent with the language that the legislature
chose to place in the statute,
it's the Commonwealth's position that
application of a mathematical serum conversion factor
to the existing serum methanol result
simply does not fall within the ambit of the statute.
Also, I'd just like to point out that
since at least Commonwealth v. Riley,
an Appeals Court case in 1986,
there have been multiple decisions
in which serum conversion test results have been discussed.
And although this court hasn't squarely addressed
the argument made by counsel
under the consent provision to exclude the serum results,
it certainly appears in looking at Riley, Rousseau,
Dewby, which was a case from this court,
that that type of evidence was being admitted.
And as this court observed in Bohigian,
since 1994, 24 (1) (e)
and 24 (1) (f), the implied consent provision,
have been amended seven times.
And over the course of all those amendments,
the legislature never substantially changed
the consent provision in 24 (1) (e).
While there are these decisions from the Appeals Court
in the Dewby decision that certainly seemed to contemplate
that this type of evidence is admissible,
a serum conversion of existing ethanol results
in medical records.
And that implies that lawmakers were content
with this type of evidence being brought before a jury
in operating under the influence prosecutions, Your Honors.
If there are no more questions, I'd rest on my brief.
And I thank you very much.
-: [Justice Wolohojian] I have a question about,
a procedural question. -: Yes, Your Honor.
-: As I understand this, this is basically
a pretrial ruling on admissibility of evidence, correct?
-: [Attorney Hennessey] Correct, Your Honor.
-: What gives the Commonwealth the right
to interlocutory review of such a ruling under 211 3?
-: Your Honor, I would suggest that-
-: [Justice Wolohojian] Under any authority?
-: Yes, well, Your Honor, I would stress to the court
that in allowing the 211 3 petition,
I suspect that Justice Georges was recognizing
that this is crucial evidence
that is very important evidence for the Commonwealth
in operating under the influence third prosecution.
And were a 211 3 not to be permitted,
then essentially, in many ways, Your Honor,
it's comparable to the allowance of a motion to suppress
that will significantly hamper the Commonwealth's case.
-: That goes under a specific rule.
That's under Rule 15; that's not under 211 3.
I'm just trying to figure out if there's authority
for the notion that the Commonwealth gets to use 211 3
to seek relief from an adverse evidentiary ruling,
interlocutorily.
-: Your Honor, I would submit that the Commonwealth
wouldn't have.
Where it was a motion to eliminate the trial stage,
the Commonwealth wouldn't have many other options
at that point other than seeking the extraordinary relief
of this court from the trial court's decision.
And the Commonwealth would've been forced to go to trial
without this crucial evidence
in an operating under the influence prosecution.
And at this point, Your Honor,
where the matter has been fully briefed by both parties
and this is an issue that involves statutory interpretation
which this court reviews de novo,
and it has implications for a number
of other OUI cases across the Commonwealth,
I'd ask that the court consider the case on the merits
at this point.
Thank you, Your Honors.
It was a privilege arguing before you today.
I appreciate it. -: Thank you.
Okay, Attorney Bowser.
-: Good morning.
Michael Bowser.
Chief Justice Budd and all the members, good morning.
If it'll please the court, it's Michael S. Bowser Jr.
for Mr. Gannett.
And seated to my right
is my Associate Attorney, Samuel Dallmeyer.
I'd like to start with just maybe a version
of OUI defense and the way that the world would work
if this court were to adopt the position
that the government has suggested.
Mr. Gannett would be arrested for an OUI offense
with an allegation of two priors.
He is brought to the police station.
He is booked.
He refuses chemical testing, as he is allowed to do so.
He suffers a five-year loss of license.
The legislature put into place that protection
to protect the public from those that are charged
and charged and charged again.
And those suspensions are graduated.
They go from 180 days to three years
to five years to lifetime.
That's exactly what happened here.
He's suspended for five years.
He happens to be spitting up some blood.
He's already refused medical treatment,
but he's spitting up a little bit of blood.
The Sergeant, Shamshak of the Essex PD,
calls Fire EMS to come down.
They put him on a gurney, they bring him to the hospital.
He has already refused all chemical testing.
Now, beyond the sanctity of our homes,
I can't imagine something
that we would give more privacy interest to
than medical records.
-: Isn't the issue whether or not the blood was drawn
for medical purposes?
-: No, his blood was-
-: Would you litigate that?
Did you litigate that below?
-: No, that's the Sheldon case.
We did not litigate that issue.
Justice Gaziano: Why not?
-: We didn't have to, Your Honor.
Honestly, I didn't have to.
I got the result that I wanted.
-: I guess you'll find out. (chuckles)
So you may have gotten the results.
You may have won the battle and lost the war.
So let me ask you a question.
What's available to a defendant, correct,
as I remember the case law from the District Court
or some Superior Court cases,
is if, usually, someone's in a car accident.
They're treated.
And as a part of the regular treatment,
they run a blood panel to see what's on board of someone.
And lo and behold, they run for alcohol and drugs.
The Commonwealth then says,
"Aha, we're gonna use the blood serum,"
and they get this conversion.
Then there's a motion to suppress.
And they bring the ER doc in and we say,
"Did you do it because the bad police officers next to you
"told you to do it?
"Or did you do that for medical purposes?"
And that's the litigation that you're familiar with.
-: That's the testimony
of the Mass General emergency room physician M. Dyer.
She literally said, "I don't listen to what the police say.
"I am making medical decisions."
-: So in this case, you had the option
to litigate that issue, correct?
-: Whether it was for medical purposes or not.
Yes, I did and I did not.
I went based on the development
of Bohigian and Moreau.
-: Right, so you relied on that statutory language.
And the fact that you're here arguing this case
doesn't mean it's obviously a disputed matter
of statutory interpretation.
But as far as protecting the defendant's rights
not to have their blood drawn
and have it used in this manner,
there is the issue of whether or not
blood is drawn for medical purposes
or at the direction of the police.
Attorney Bowser: And if I may, on that point, Your Honor.
-: Sure.
-: So down the road after a decision is made
in favor of the Commonwealth,
as mentioned in Moreau, Bohigian,
we assume the legislature knows what's going on
here at the SJC.
We assume that law enforcement is up to speed
on what is legal and what is not.
And I would also submit, we would expect our citizens
to know what is legal and illegal.
-: That litigation I spoke of happens all over,
in your experience.
I'm sure you've brought these motions as well
and litigate them.
-: I have. -: Right.
-: Your Honor, that panel for medical purposes
is critically important to the care of any patient.
-: 'Cause when I read the facts in this case,
I thought, "Well, why wasn't that motion filed?
"Why aren't we hearing that?"
-: I had a better argument.
I did not include all my arguments,
but I was focused on analysis, test of without consent.
Justice Gaziano: Fair enough.
-: But, Your Honor, that medical panel is designed
to give an ER doc information regarding electrolytes,
hypoglycemia, kidney failure,
lactosis, acidosis, shock, organ failure, liver dysfunction.
-: [Justice Wendlandt] Well, that's what makes it reliable.
I'm confused by your argument.
What's your point?
-: It makes it medically necessary.
What if Mr. Gannett knows that the sergeant
is gonna get his records?
He's gonna say to the doctor in the ER,
"I don't want a panel; don't draw my blood."
-: So you're asking us to make a public policy decision
that the legislature has already made
in connection with the statute that's before us.
-: I don't think the legislature has decided.
-: [Justice Wendlandt] Well, that depends
on how we construe the statute.
-: 'Cause there's a statute on medical records
and 233 79 is on point.
I don't agree with the definition of as to liability.
If you're talking about an OUI per se offense,
a blood alcohol calculation
derived from a medical laboratory test
is evidence of liability in a criminal setting.
-: Even if a defendant doesn't want their blood drawn,
if someone comes
because of the potential for the OUI evidence,
as I understand it or I've heard it before,
the ER doc says, "This person came in with a head injury.
"I need to assess him/her to see what's going on.
"I'm doing a blood panel
"'cause I wanna know what's on board this person
"before we do the MRI, et cetera," correct?
-: Absolutely.
CAT scan, panel, toxicology, they have to know
in order to render appropriate medical treatment.
We're putting Mr. Gannett in a position...
Again, if you were to adopt the Commonwealth's argument,
he could refuse all that treatment that is necessary
to ensure his health.
I just think that that's the balancing that's going on here.
-: I see that as exactly the balancing.
And let me give you a hypothetical that might explain why.
Assume everything was the same
except that the medical records were never sent
to the police lab for analysis.
Instead, what happens is at trial.
An expert is called by the District Attorney's office
who's not a police officer.
There's no direction of a police officer, okay.
So I'm trying to take that piece out of it.
And that expert witness looks at the medical records
and testifies to the serum blood and conversion
or the serum conversion, whatever,
does the conversion on the stand.
The defendant's, you know, able to cross examine 'em
as to the validity of that conversion.
But on what basis would that conversion be excluded?
This statute would not be a basis
for excluding that evidence, would it?
Let's take the last question first.
I realize I asked multiple questions.
Attorney Bowser: So the last question is this statute
meaning the driving statute?
-: This statute, 24 (1) (e), would not exclude that evidence.
-: It would because it says chemical tests or analysis.
-: By or at the direction of a police officer.
But my hypothetical doesn't posit the direction
of a police officer.
-: So that expert witness comes to trial.
And he has before him a three digit number,
which is what's called an enzymatic assay test
of serum plasma blood in a hospital laboratory.
They separate the solids from the liquid.
The alcohol has an affinity for water.
It's always recognized to be somewhere
between 14% to 20% higher.
They take three different conversion factors.
They apply it to that number, which is beyond the ken
of any fact finder or any juror.
-: [Justice Wolohojian] So it's an expert witness.
-: That's why the expert needs to be there.
That's why it's an analysis that no other person could do.
-: So it wouldn't be excluded. -: It should be excluded.
-: Under this statute? -: Yes.
-: How?
There's no direction of a police officer.
-: We don't need a blood draw.
Well, alright, so you're talking about analysis
at the direction of police officers.
-: Well, I don't know.
It says "provided, however, that if such test or analysis
"was made by or at the direction of a police officer."
My hypothetical doesn't have
a police officer involved at all.
-: Well, someone from the state lab
works for the Massachusetts State Police.
-: I'm positing an expert who's called by the DA's office.
Attorney Bowser: Outside of the State Police
Crime laboratory?
-: Yes, how would this statute exclude that testimony?
-: Because the government is using that blood
to prosecute Mr. Gannett in an OUI.
-: But that's not what the statute says.
Doesn't say the government.
It says, "a test or analysis made by
"or at the direction of a police officer."
-: Under 24 (e) and under 24 (f), you can say no.
I mean, there's a statutory consent
that is built into the OUI statute.
-: You can say no to...
There's a consent, right, to expert testimony?
-: No, Your Honor, there is not.
Under your scenario, respectfully,
I believe if the defendant has said no, no means no.
-: [Justice Wolohojian] But to what?
-: You can't use my private medical information
to prosecute me in an OUI.
I didn't consent to the use of my records.
Because my records contain blood.
And an expert hired by the government is gonna come in,
analyze that blood.
-: So the objection would be
to the medical records themselves?
So that would be an objection under what?
-: Under the statute.
He did not consent to the use of his blood sample
as collected in the hospital
to be used against him in an OUI prosecution.
-: Counsel, what's your best argument
against the proposition
that chemical does not modify analysis?
-: If I may, if you'll just indulge me a couple minutes.
I have an explanation I think will shed light
that's very relevant on this particular issue.
In chemical testing- -: That would be great.
-: I'll be quick.
-: I think that's a better question.
So shed some light on the issue
of whether chemical modifies analysis or not.
-: The gold standard of blood alcohol testing
is gas chromatography with flame ionization.
Everyone agrees that that is the very best way
to do a whole blood analysis.
Below that is a breath test.
And a breath test machine here in Massachusetts,
it doesn't draw blood.
You blow breath into it.
It measures in ways the molecular content
of alcohol in the breath sample.
Then it applies a conversion factor: 2,100 to one.
And then it prints out a BAC, a blood alcohol content,
based on a conversion that the government has built
into the machine.
There's no difference between the conversion factor
that the state lab is using in this case
and the conversion factor that they built in.
Justice Kafker: Is there a chemical analysis in that?
-: The infrared light absorption is being measured
both by infrared technology and a fuel cell?
There's double. -: So it's a chemical analysis.
I'm just trying to get your answer to-
-: It's not a chemical analysis of blood.
There's no blood going into a Draeger Alpha test.
It is a breath test. -: I gotcha.
-: And then, they're applying a conversion
to get the blood. -: So let's get to the blood.
We're talking about blood here, right?
So let's skip to that.
So I understand the breathalyzer.
Keep going. -: So in a hospital,
as I said, they draw blood for medical purposes.
They bring it to their laboratory.
There it sits.
It is tested pursuant to a protocol that hospitals use,
which is drastically different than what the state lab uses.
And the hospital records from Lahey
literally say, "These tests are for screening purposes only
"and should only be used for medical purposes."
You see that in medical records
throughout the Commonwealth from Lahey.
Anna Jaques I know has the same.
-: [Justice Wendlandt] So those are actually chemical tests
and analysis.
-: They are, and they're screened, but they're a lower level.
I would even put 'em below a breath test
because they're simply screening devices
used for medical professionals
to make quick reasonable decisions based on what's on board.
And the fact that they take that type of result,
the hospital tells them, "Don't use this
"for legal or employment purposes."
They take that sample, apply their conversion rate,
and put it into a blood alcohol result.
-: Doesn't that go to the weight of the evidence
as opposed to the admissibility of the evidence
under the statute?
-: I've cross-examined and argued that in courtrooms.
But I think the way that this court
has set up Bohigian and Moreau,
it just begs the question that that is an analysis.
-: [Chief Justice Budd] Did you answer
Justice Wendlandt's question about chemical?
-: I'm happy to go back to it. -: Would you?
-: [Justice Wendlandt] Yeah, you were shedding some light
as you last left it.
-: The hierarchy of testing,
the point is is that this enzymatic profile
that's done in the hospital lab
is below that of a breath test,
and only better than urinalysis
which is the bottom of the barrel.
So what the government is using,
it requires analysis in order to present it to a jury.
It's just beyond the understanding of most folks.
-: But the chemical test and analysis
that you're describing now,
that was done for medical purposes
with all the caveats of,
"But don't use this for legal proceedings,"
that was not done at the direction of the police
in this case.
At least, that's not what you're arguing.
Right? -: Right.
-: So that chemical test was done by the hospital
for medical purposes.
Why does the mathematical conversion
that was actually done by the police,
or at the direction of the police
by somebody who knows math,
why is that a chemical analysis?
Attorney Bowser: Well, Your Honor, there is
a chemical analysis going on at the Beverly Hospital.
-: Right, but that was done by the hospital, right?
Exactly, we've all agreed to that point.
There's been a chemical test and analysis.
Your position, I thought, was even doing math on that result
falls within the statute
because chemical must modify analysis within the statute.
And I'm wondering why?
-: Because there's an organic sample in the hospital lab.
Chemistry was utilized
to get a nanogram per deciliter result enzyme.
And then they're further building upon that
by way of analysis.
Analysis of nothing is nothing.
There was a blood test in a hospital.
-: Right, but the question is
whether chemical modifies analysis or not.
Attorney Bowser: It does.
The plain language, obviously,
it says chemical analysis, yes.
-: So it does. -: Right.
-: So you're saying math is chemical analysis?
-: It is if you're analyzing chemicals.
And ethanol is a chemical.
It's actually a poison.
But yes, that conversion factor is an analysis
just like it-
-: [Justice Wendlandt] But it's a chemical analysis
is what you're saying.
-: Don't you wanna say that it doesn't modify analysis?
I mean, I'm just gonna give you a chance
to think about that.
Because if it doesn't modify analysis,
then you can say,
"Oh, there was a mathematical analysis done."
-: Your Honor, you are correct.
-: I was just trying to help. -: I'll take that back.
Thank you.
It is a mathematical conversion.
But that is an analysis.
-: Can you just take a crack
at how reading analysis in this way,
which is, you know, a broad reading of the word analysis
to comprise any kind of analysis
that one might do including math,
how that relates to the purposes of the legislature
set forth in the statute here.
-: The legislature has had every opportunity
to modify the statute.
They haven't, despite Bohigian and Moreau.
And, as I said, it's a statutory consent mechanism.
-: Well, I think that the Commonwealth is arguing
that that kind of strain of argument
actually goes against you.
Because it's pretty clear from a number of past cases
that this mathematical analysis is happening.
And the legislature hasn't changed the statute to bar it.
So I understood the purpose of the statute
to relate in part to bodily autonomy.
And how does your argument about whether
the Commonwealth can do a mathematical analysis
relate to that purpose?
-: Everything we're talking about
began in the body of Denny Gannett.
It is his bodily fluids that were gathered at the hospital,
not for an OUI prosecution.
He's already said no.
He already exercised his right to say no.
He gave no consent for chemical testing
of his breath at the police station.
The fact that he finds himself in the hospital
should not change that.
He still has autonomy in his body.
-: But he gives consent to the hospital to take his blood.
He wants them to find out what's wrong with him, right?
Attorney Bowser: He might not next month.
-: So it comes down to,
the language is cutting against you.
We've got your public policy,
which is protecting his privacy
even when he's consented to the blood test,
versus their view, which is bodily integrity is forcing,
using the police to force the test.
Right?
-: It is a medical test.
But my point is, he very well might refuse
that medical treatment, necessary medical treatment,
if he knows that his, "No, don't use my fluids,"
is gonna be overridden and backdoored by a warrant, Rule 17.
-: [Chief Justice Budd] Okay, thank you.
-: Nothing further, thank you.