WEBVTT
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SJC 13659,
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Commonwealth versus Denny Gannett.
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Okay, Attorney Hennessey.
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Good morning, Chief Justice Budd and Associate Justices.
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And may it please the court,
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Kevin Hennessey appearing on behalf of the Commonwealth.
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I'm joined at counsel table by my colleague,
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ADA Marina Moriarty.
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The Commonwealth is requesting that this court
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reverse the trial judge's allowance
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of a motion to eliminate,
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to suppress the results of a serum conversion
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of existing serum ethanol records
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reflected in the defendant's medical records
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that were obtained without the involvement
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of law enforcement.
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This case centers on a question of statutory interpretation
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regarding the consent provision
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in the operating under the influence statute,
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General Law Chapter 90, Section 24 (1) (e),
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that has implications for the admissibility
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of serum conversion results
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in a number of operating under the influence prosecutions
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across the Commonwealth.
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The plain language of the statute
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that the legislature chose,
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the tenets of statutory interpretation
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endorsed by this court,
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as well as this court's construction of the statute
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in Moreau and Bohigian lead to the conclusion that a serum,
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the application of a mathematical serum conversion factor
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to existing serum ethanol results
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that are reflected in medical records,
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a serum ethanol result that was obtained
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without the involvement of law enforcement,
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and after a blood draw that the defendant consented to,
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that in those circumstances,
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the mathematical conversion of the serum result
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does not constitute a chemical test or analysis
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of the defendant's blood as would be required
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for the serum conversion factor to be excluded
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under the statute.
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So, Counsel, can you just explain to me
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what happened here?
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You have the test results from the medical record,
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and those are input to some sort of algorithm
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that spits out, what, the blood alcohol content, or?
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[Attorney Hennessey] Your Honor,
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essentially what happened in this case was,
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following his arrest for operating under the influence,
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through events, the defendant was transported
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to Beverly Hospital.
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No, I'm asking more about the algorithm.
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I don't need to know the details.
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But is it that you take the medical record results
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and you input them into some equation,
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and that that spits out something related
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to the blood alcohol content of the defendant's blood?
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When the hospital draws the defendant's blood,
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it's in a serum ethanol result.
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It's in a serum ethanol form.
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The hospital essentially separates the solid portions
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of the blood, proteins and such,
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from the liquid portion of the blood
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to get a serum ethanol result,
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which is always going to be higher
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than the whole blood alcohol content level.
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Because serum, the water has an affinity for ethanol.
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And what the Commonwealth did in this case
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was get that serum ethanol result in the medical records,
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send it to the state police crime lab.
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A forensic scientist at the state police crime lab,
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using a range of scientifically accepted conversion factors,
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simply did a a couple of quick division problems
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and converted the 292 milligrams per deciliter
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serum methanol result
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into a whole blood alcohol content level
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with a range from anywhere, on the low end, a 0.24 BAC
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to, on the high end, a 0.26 BAC.
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So the forensic scientist at the state police crime lab,
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in this case...
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[Justice Wendlandt] Is it like a lookup table?
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It's essentially dividing
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the 292 milligram per deciliter result by 1,000,
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and then multiplying that result by the conversion factors.
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Which the conversion factors used
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by the state police crime lab at the time
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was 1.12, 1.14, and 1.18.
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And that second number is divided
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by those conversion factors
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to get the whole blood alcohol content level.
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So why isn't that analysis?
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Why isn't that definitionally analysis?
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Because, Your Honor,
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the statute has to be read as its whole.
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And the statute says explicitly,
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"chemical test or analysis of the defendant's blood."
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[Justice Wendlandt] So your position is
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that chemical modifies analysis as well as test?
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Yes, Your Honor.
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And I would suggest that this is supported
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by this court's interpretation of the statute
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in Footnote 5 in the Moreau decision.
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This court makes reference to the fact
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that chemical tests or analysis
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refers to later reference in the statute
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when it's just referenced as a test or analysis.
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But also, Your honor, it's of the defendant's blood.
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So that connotes that what the legislature was trying
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to get at here was when law enforcement are actually testing
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or analyzing, doing something to the blood sample itself.
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And what happened...
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Although, you know, when you do math
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on somebody's blood serum, whatever you call that vial,
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it's an analysis of the blood.
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I mean, I think your stronger argument
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is whether or not it's a chemical analysis of the blood.
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It certainly is a mathematical analysis of the blood.
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There's some algorithm,
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as you were eloquently describing it,
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of what came into the vial
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and the results from that division multiplication.
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And then you spit out some relevant element
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for the Commonwealth, right?
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So there's definitely a mathematical analysis of the blood.
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It's not directly of the blood, but it's of the blood.
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And if the legislature hadn't also included
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the word chemical, then I'd agree with the court
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that the Commonwealth would be
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in a much weaker position here.
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But what the forensic scientist at the lab did
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is in many ways comparable to applying a conversion factor
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to inches and converting it to centimeters.
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Because the forensic scientist,
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or somebody making that conversion,
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they're not gonna go out and remeasure the distance.
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They're simply gonna apply the conversion factor
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to that existing result
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and convert it to inches or centimeters
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or from kilograms to pounds.
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And that's essentially what the forensic scientists
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at the state police crime lab did in this case.
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The existing serum result that's obtained
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without the involvement of law enforcement
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and is reflected in the defendant's medical records
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is accepted as true.
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And then, the conversion factors are applied
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to that existing result.
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Excuse me, Counsel, beyond the question
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whether chemical modifies both tests and analysis
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and beyond the meaning of the word analysis,
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do you have any arguments about the purposes
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of the legislature here
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as reflected in the text of the statute
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and how your reading is or is not
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more consistent with those purposes?
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Your Honor, I would suggest that as this court
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has commented on in the Moreau and Bohigian decisions,
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it appears just from the text of the legislature
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that lawmakers were grappling with a variety of concerns
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when enacting these provisions,
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including public safety concerns
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but also bodily autonomy concerns.
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And I would suggest that construing the statute
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in the way suggested by the Commonwealth
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would reflect a reasonable compromise
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of these competing goals.
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Because, in this case, the medical records
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are going to exist whether the police are involved or not.
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And it would've been sensible for lawmakers to conclude,
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to flatly prohibit non-consensual blood draws,
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but also to prohibit non-consensual tests
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or analyses of blood when it's conducted by
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or at the direction of law enforcement.
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But in this case, where the medical records
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are going to exist regardless of what the police do,
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that in such circumstances,
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highly reliable blood test evidence
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that's going to be crucial to the trier of fact in a trial
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should be brought to the attention of a jury.
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Where the medical records are going to exist regardless,
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and what the Commonwealth is doing
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is just accessing those records
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and having a expert witness from the state police crime lab
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or forensic scientist convert those existing test results
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into a whole blood alcohol content level
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so it can be admitted at trial.
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So in many ways, Your Honor,
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what the forensic scientist does in this case
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is akin to a medical doctor
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testifying as an expert witness at trial
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and explaining complicated medical terms to a jury.
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And that doctor doesn't necessarily have to have been
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the doctor who treated the patient.
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But the case law permits the doctor
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to explain those complicated terms to a jury.
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But the crucial point is that
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the forensic scientist from the state police crime lab
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is not chemically analyzing the defendant's blood.
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The chemical analysis of the defendant's blood
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is done at the hospital.
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So, consistent with the language that the legislature
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chose to place in the statute,
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it's the Commonwealth's position that
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application of a mathematical serum conversion factor
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to the existing serum methanol result
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simply does not fall within the ambit of the statute.
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Also, I'd just like to point out that
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since at least Commonwealth v. Riley,
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an Appeals Court case in 1986,
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there have been multiple decisions
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in which serum conversion test results have been discussed.
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And although this court hasn't squarely addressed
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the argument made by counsel
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under the consent provision to exclude the serum results,
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it certainly appears in looking at Riley, Rousseau,
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Dewby, which was a case from this court,
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that that type of evidence was being admitted.
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And as this court observed in Bohigian,
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since 1994, 24 (1) (e)
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and 24 (1) (f), the implied consent provision,
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have been amended seven times.
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And over the course of all those amendments,
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the legislature never substantially changed
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the consent provision in 24 (1) (e).
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While there are these decisions from the Appeals Court
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in the Dewby decision that certainly seemed to contemplate
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that this type of evidence is admissible,
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a serum conversion of existing ethanol results
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in medical records.
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And that implies that lawmakers were content
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with this type of evidence being brought before a jury
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in operating under the influence prosecutions, Your Honors.
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If there are no more questions, I'd rest on my brief.
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And I thank you very much.
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[Justice Wolohojian] I have a question about,
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a procedural question.
Yes, Your Honor.
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As I understand this, this is basically
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a pretrial ruling on admissibility of evidence, correct?
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[Attorney Hennessey] Correct, Your Honor.
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What gives the Commonwealth the right
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to interlocutory review of such a ruling under 211 3?
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Your Honor, I would suggest that-
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[Justice Wolohojian] Under any authority?
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Yes, well, Your Honor, I would stress to the court
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that in allowing the 211 3 petition,
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I suspect that Justice Georges was recognizing
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that this is crucial evidence
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that is very important evidence for the Commonwealth
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in operating under the influence third prosecution.
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And were a 211 3 not to be permitted,
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then essentially, in many ways, Your Honor,
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it's comparable to the allowance of a motion to suppress
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that will significantly hamper the Commonwealth's case.
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That goes under a specific rule.
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That's under Rule 15; that's not under 211 3.
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I'm just trying to figure out if there's authority
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for the notion that the Commonwealth gets to use 211 3
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to seek relief from an adverse evidentiary ruling,
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interlocutorily.
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Your Honor, I would submit that the Commonwealth
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wouldn't have.
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Where it was a motion to eliminate the trial stage,
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the Commonwealth wouldn't have many other options
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at that point other than seeking the extraordinary relief
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of this court from the trial court's decision.
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And the Commonwealth would've been forced to go to trial
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without this crucial evidence
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in an operating under the influence prosecution.
270
00:14:00.420 --> 00:14:01.980
And at this point, Your Honor,
271
00:14:01.980 --> 00:14:05.850
where the matter has been fully briefed by both parties
272
00:14:05.850 --> 00:14:10.850
and this is an issue that involves statutory interpretation
273
00:14:11.340 --> 00:14:14.310
which this court reviews de novo,
274
00:14:14.310 --> 00:14:16.230
and it has implications for a number
275
00:14:16.230 --> 00:14:18.690
of other OUI cases across the Commonwealth,
276
00:14:18.690 --> 00:14:23.550
I'd ask that the court consider the case on the merits
277
00:14:23.550 --> 00:14:24.513
at this point.
278
00:14:25.890 --> 00:14:27.510
Thank you, Your Honors.
279
00:14:27.510 --> 00:14:29.700
It was a privilege arguing before you today.
280
00:14:29.700 --> 00:14:31.200
I appreciate it.
Thank you.
281
00:14:33.450 --> 00:14:34.830
Okay, Attorney Bowser.
282
00:14:34.830 --> 00:14:35.970
Good morning.
283
00:14:35.970 --> 00:14:36.930
Michael Bowser.
284
00:14:36.930 --> 00:14:40.470
Chief Justice Budd and all the members, good morning.
285
00:14:40.470 --> 00:14:42.990
If it'll please the court, it's Michael S. Bowser Jr.
286
00:14:42.990 --> 00:14:43.823
for Mr. Gannett.
287
00:14:43.823 --> 00:14:45.210
And seated to my right
288
00:14:45.210 --> 00:14:49.080
is my Associate Attorney, Samuel Dallmeyer.
289
00:14:49.080 --> 00:14:53.160
I'd like to start with just maybe a version
290
00:14:53.160 --> 00:14:57.240
of OUI defense and the way that the world would work
291
00:14:57.240 --> 00:14:59.880
if this court were to adopt the position
292
00:14:59.880 --> 00:15:01.950
that the government has suggested.
293
00:15:01.950 --> 00:15:04.680
Mr. Gannett would be arrested for an OUI offense
294
00:15:04.680 --> 00:15:06.720
with an allegation of two priors.
295
00:15:06.720 --> 00:15:08.490
He is brought to the police station.
296
00:15:08.490 --> 00:15:09.510
He is booked.
297
00:15:09.510 --> 00:15:13.020
He refuses chemical testing, as he is allowed to do so.
298
00:15:13.020 --> 00:15:16.590
He suffers a five-year loss of license.
299
00:15:16.590 --> 00:15:19.200
The legislature put into place that protection
300
00:15:19.200 --> 00:15:21.840
to protect the public from those that are charged
301
00:15:21.840 --> 00:15:23.640
and charged and charged again.
302
00:15:23.640 --> 00:15:26.130
And those suspensions are graduated.
303
00:15:26.130 --> 00:15:28.110
They go from 180 days to three years
304
00:15:28.110 --> 00:15:29.613
to five years to lifetime.
305
00:15:30.630 --> 00:15:31.860
That's exactly what happened here.
306
00:15:31.860 --> 00:15:33.660
He's suspended for five years.
307
00:15:33.660 --> 00:15:36.090
He happens to be spitting up some blood.
308
00:15:36.090 --> 00:15:37.860
He's already refused medical treatment,
309
00:15:37.860 --> 00:15:40.620
but he's spitting up a little bit of blood.
310
00:15:40.620 --> 00:15:43.530
The Sergeant, Shamshak of the Essex PD,
311
00:15:43.530 --> 00:15:45.930
calls Fire EMS to come down.
312
00:15:45.930 --> 00:15:48.690
They put him on a gurney, they bring him to the hospital.
313
00:15:48.690 --> 00:15:52.020
He has already refused all chemical testing.
314
00:15:52.020 --> 00:15:55.140
Now, beyond the sanctity of our homes,
315
00:15:55.140 --> 00:15:56.880
I can't imagine something
316
00:15:56.880 --> 00:16:00.150
that we would give more privacy interest to
317
00:16:00.150 --> 00:16:01.090
than medical records.
318
00:16:01.090 --> 00:16:04.350
Isn't the issue whether or not the blood was drawn
319
00:16:04.350 --> 00:16:06.210
for medical purposes?
320
00:16:06.210 --> 00:16:08.760
No, his blood was-
321
00:16:08.760 --> 00:16:09.627
Would you litigate that?
322
00:16:09.627 --> 00:16:12.153
Did you litigate that below?
323
00:16:13.140 --> 00:16:14.490
No, that's the Sheldon case.
324
00:16:14.490 --> 00:16:15.810
We did not litigate that issue.
325
00:16:15.810 --> 00:16:16.920
Why not?
326
00:16:16.920 --> 00:16:17.940
We didn't have to, Your Honor.
327
00:16:17.940 --> 00:16:19.955
Honestly, I didn't have to.
328
00:16:19.955 --> 00:16:21.300
I got the result that I wanted.
329
00:16:21.300 --> 00:16:24.390
I guess you'll find out. (chuckles)
330
00:16:24.390 --> 00:16:26.280
So you may have gotten the results.
331
00:16:26.280 --> 00:16:28.740
You may have won the battle and lost the war.
332
00:16:28.740 --> 00:16:30.810
So let me ask you a question.
333
00:16:30.810 --> 00:16:34.080
What's available to a defendant, correct,
334
00:16:34.080 --> 00:16:37.050
as I remember the case law from the District Court
335
00:16:37.050 --> 00:16:38.643
or some Superior Court cases,
336
00:16:39.660 --> 00:16:43.023
is if, usually, someone's in a car accident.
337
00:16:43.860 --> 00:16:45.360
They're treated.
338
00:16:45.360 --> 00:16:48.930
And as a part of the regular treatment,
339
00:16:48.930 --> 00:16:52.260
they run a blood panel to see what's on board of someone.
340
00:16:52.260 --> 00:16:57.260
And lo and behold, they run for alcohol and drugs.
341
00:16:58.200 --> 00:16:59.033
The Commonwealth then says,
342
00:16:59.033 --> 00:17:01.440
"Aha, we're gonna use the blood serum,"
343
00:17:01.440 --> 00:17:03.240
and they get this conversion.
344
00:17:03.240 --> 00:17:06.300
Then there's a motion to suppress.
345
00:17:06.300 --> 00:17:09.187
And they bring the ER doc in and we say,
346
00:17:09.187 --> 00:17:12.127
"Did you do it because the bad police officers next to you
347
00:17:12.127 --> 00:17:12.960
"told you to do it?
348
00:17:12.960 --> 00:17:15.120
"Or did you do that for medical purposes?"
349
00:17:15.120 --> 00:17:18.647
And that's the litigation that you're familiar with.
350
00:17:18.647 --> 00:17:19.950
That's the testimony
351
00:17:19.950 --> 00:17:23.040
of the Mass General emergency room physician M. Dyer.
352
00:17:23.040 --> 00:17:25.717
She literally said, "I don't listen to what the police say.
353
00:17:25.717 --> 00:17:27.020
"I am making medical decisions."
354
00:17:27.020 --> 00:17:30.900
So in this case, you had the option
355
00:17:30.900 --> 00:17:32.913
to litigate that issue, correct?
356
00:17:33.870 --> 00:17:35.760
Whether it was for medical purposes or not.
357
00:17:35.760 --> 00:17:37.590
Yes, I did and I did not.
358
00:17:37.590 --> 00:17:39.570
I went based on the development
359
00:17:39.570 --> 00:17:40.807
of Bohigian and Moreau.
360
00:17:40.807 --> 00:17:44.010
Right, so you relied on that statutory language.
361
00:17:44.010 --> 00:17:46.380
And the fact that you're here arguing this case
362
00:17:46.380 --> 00:17:48.990
doesn't mean it's obviously a disputed matter
363
00:17:48.990 --> 00:17:50.880
of statutory interpretation.
364
00:17:50.880 --> 00:17:53.160
But as far as protecting the defendant's rights
365
00:17:53.160 --> 00:17:54.360
not to have their blood drawn
366
00:17:54.360 --> 00:17:56.160
and have it used in this manner,
367
00:17:56.160 --> 00:17:58.680
there is the issue of whether or not
368
00:17:58.680 --> 00:18:00.900
blood is drawn for medical purposes
369
00:18:00.900 --> 00:18:03.150
or at the direction of the police.
370
00:18:03.150 --> 00:18:04.800
And if I may, on that point, Your Honor.
371
00:18:04.800 --> 00:18:05.633
Sure.
372
00:18:05.633 --> 00:18:08.640
So down the road after a decision is made
373
00:18:08.640 --> 00:18:10.080
in favor of the Commonwealth,
374
00:18:10.080 --> 00:18:13.110
as mentioned in Moreau, Bohigian,
375
00:18:13.110 --> 00:18:15.060
we assume the legislature knows what's going on
376
00:18:15.060 --> 00:18:16.320
here at the SJC.
377
00:18:16.320 --> 00:18:18.900
We assume that law enforcement is up to speed
378
00:18:18.900 --> 00:18:20.820
on what is legal and what is not.
379
00:18:20.820 --> 00:18:23.940
And I would also submit, we would expect our citizens
380
00:18:23.940 --> 00:18:26.370
to know what is legal and illegal.
381
00:18:26.370 --> 00:18:29.430
That litigation I spoke of happens all over,
382
00:18:29.430 --> 00:18:31.320
in your experience.
383
00:18:31.320 --> 00:18:33.210
I'm sure you've brought these motions as well
384
00:18:33.210 --> 00:18:34.140
and litigate them.
385
00:18:34.140 --> 00:18:35.223
I have.
Right.
386
00:18:36.060 --> 00:18:38.610
Your Honor, that panel for medical purposes
387
00:18:38.610 --> 00:18:42.983
is critically important to the care of any patient.
388
00:18:42.983 --> 00:18:45.030
'Cause when I read the facts in this case,
389
00:18:45.030 --> 00:18:47.617
I thought, "Well, why wasn't that motion filed?
390
00:18:47.617 --> 00:18:48.900
"Why aren't we hearing that?"
391
00:18:48.900 --> 00:18:50.790
I had a better argument.
392
00:18:50.790 --> 00:18:52.020
I did not include all my arguments,
393
00:18:52.020 --> 00:18:56.430
but I was focused on analysis, test of without consent.
394
00:18:56.430 --> 00:18:57.263
Fair enough.
395
00:18:57.263 --> 00:18:59.490
But, Your Honor, that medical panel is designed
396
00:18:59.490 --> 00:19:03.870
to give an ER doc information regarding electrolytes,
397
00:19:03.870 --> 00:19:06.060
hypoglycemia, kidney failure,
398
00:19:06.060 --> 00:19:11.060
lactosis, acidosis, shock, organ failure, liver dysfunction.
399
00:19:11.257 --> 00:19:13.680
[Justice Wendlandt] Well, that's what makes it reliable.
400
00:19:13.680 --> 00:19:15.180
I'm confused by your argument.
401
00:19:16.350 --> 00:19:17.183
What's your point?
402
00:19:17.183 --> 00:19:18.090
It makes it medically necessary.
403
00:19:18.090 --> 00:19:20.190
What if Mr. Gannett knows that the sergeant
404
00:19:20.190 --> 00:19:21.360
is gonna get his records?
405
00:19:21.360 --> 00:19:23.467
He's gonna say to the doctor in the ER,
406
00:19:23.467 --> 00:19:25.920
"I don't want a panel; don't draw my blood."
407
00:19:25.920 --> 00:19:28.440
So you're asking us to make a public policy decision
408
00:19:28.440 --> 00:19:30.240
that the legislature has already made
409
00:19:30.240 --> 00:19:32.640
in connection with the statute that's before us.
410
00:19:33.510 --> 00:19:35.137
I don't think the legislature has decided.
411
00:19:35.137 --> 00:19:35.970
[Justice Wendlandt] Well, that depends
412
00:19:35.970 --> 00:19:37.487
on how we construe the statute.
413
00:19:37.487 --> 00:19:39.510
'Cause there's a statute on medical records
414
00:19:39.510 --> 00:19:43.470
and 233 79 is on point.
415
00:19:43.470 --> 00:19:46.290
I don't agree with the definition of as to liability.
416
00:19:46.290 --> 00:19:49.380
If you're talking about an OUI per se offense,
417
00:19:49.380 --> 00:19:51.120
a blood alcohol calculation
418
00:19:51.120 --> 00:19:53.880
derived from a medical laboratory test
419
00:19:53.880 --> 00:19:55.950
is evidence of liability in a criminal setting.
420
00:19:55.950 --> 00:19:58.380
Even if a defendant doesn't want their blood drawn,
421
00:19:58.380 --> 00:19:59.610
if someone comes
422
00:19:59.610 --> 00:20:02.133
because of the potential for the OUI evidence,
423
00:20:03.300 --> 00:20:05.400
as I understand it or I've heard it before,
424
00:20:05.400 --> 00:20:09.457
the ER doc says, "This person came in with a head injury.
425
00:20:09.457 --> 00:20:13.627
"I need to assess him/her to see what's going on.
426
00:20:13.627 --> 00:20:14.707
"I'm doing a blood panel
427
00:20:14.707 --> 00:20:16.867
"'cause I wanna know what's on board this person
428
00:20:16.867 --> 00:20:19.200
"before we do the MRI, et cetera," correct?
429
00:20:19.200 --> 00:20:20.033
Absolutely.
430
00:20:20.033 --> 00:20:23.160
CAT scan, panel, toxicology, they have to know
431
00:20:23.160 --> 00:20:26.280
in order to render appropriate medical treatment.
432
00:20:26.280 --> 00:20:28.230
We're putting Mr. Gannett in a position...
433
00:20:28.230 --> 00:20:30.570
Again, if you were to adopt the Commonwealth's argument,
434
00:20:30.570 --> 00:20:33.660
he could refuse all that treatment that is necessary
435
00:20:33.660 --> 00:20:36.270
to ensure his health.
436
00:20:36.270 --> 00:20:39.363
I just think that that's the balancing that's going on here.
437
00:20:42.780 --> 00:20:45.450
I see that as exactly the balancing.
438
00:20:45.450 --> 00:20:50.450
And let me give you a hypothetical that might explain why.
439
00:20:52.800 --> 00:20:54.600
Assume everything was the same
440
00:20:54.600 --> 00:20:58.620
except that the medical records were never sent
441
00:20:58.620 --> 00:21:01.290
to the police lab for analysis.
442
00:21:01.290 --> 00:21:05.460
Instead, what happens is at trial.
443
00:21:05.460 --> 00:21:10.440
An expert is called by the District Attorney's office
444
00:21:10.440 --> 00:21:11.700
who's not a police officer.
445
00:21:11.700 --> 00:21:14.100
There's no direction of a police officer, okay.
446
00:21:14.100 --> 00:21:16.830
So I'm trying to take that piece out of it.
447
00:21:16.830 --> 00:21:20.940
And that expert witness looks at the medical records
448
00:21:20.940 --> 00:21:25.940
and testifies to the serum blood and conversion
449
00:21:27.450 --> 00:21:29.400
or the serum conversion, whatever,
450
00:21:29.400 --> 00:21:31.410
does the conversion on the stand.
451
00:21:31.410 --> 00:21:34.620
The defendant's, you know, able to cross examine 'em
452
00:21:34.620 --> 00:21:36.690
as to the validity of that conversion.
453
00:21:36.690 --> 00:21:39.720
But on what basis would that conversion be excluded?
454
00:21:39.720 --> 00:21:42.000
This statute would not be a basis
455
00:21:42.000 --> 00:21:44.073
for excluding that evidence, would it?
456
00:21:45.780 --> 00:21:47.580
Let's take the last question first.
457
00:21:47.580 --> 00:21:49.650
I realize I asked multiple questions.
458
00:21:49.650 --> 00:21:51.510
So the last question is this statute
459
00:21:51.510 --> 00:21:52.500
meaning the driving statute?
460
00:21:52.500 --> 00:21:57.500
This statute, 24 (1) (e), would not exclude that evidence.
461
00:21:58.606 --> 00:22:02.760
It would because it says chemical tests or analysis.
462
00:22:02.760 --> 00:22:04.950
By or at the direction of a police officer.
463
00:22:04.950 --> 00:22:07.290
But my hypothetical doesn't posit the direction
464
00:22:07.290 --> 00:22:08.430
of a police officer.
465
00:22:08.430 --> 00:22:10.317
So that expert witness comes to trial.
466
00:22:10.317 --> 00:22:12.450
And he has before him a three digit number,
467
00:22:12.450 --> 00:22:17.450
which is what's called an enzymatic assay test
468
00:22:17.460 --> 00:22:20.760
of serum plasma blood in a hospital laboratory.
469
00:22:20.760 --> 00:22:23.370
They separate the solids from the liquid.
470
00:22:23.370 --> 00:22:25.890
The alcohol has an affinity for water.
471
00:22:25.890 --> 00:22:27.720
It's always recognized to be somewhere
472
00:22:27.720 --> 00:22:30.120
between 14% to 20% higher.
473
00:22:30.120 --> 00:22:32.340
They take three different conversion factors.
474
00:22:32.340 --> 00:22:36.120
They apply it to that number, which is beyond the ken
475
00:22:36.120 --> 00:22:38.082
of any fact finder or any juror.
476
00:22:38.082 --> 00:22:39.193
[Justice Wolohojian] So it's an expert witness.
477
00:22:39.193 --> 00:22:40.026
That's why the expert needs to be there.
478
00:22:40.026 --> 00:22:43.830
That's why it's an analysis that no other person could do.
479
00:22:43.830 --> 00:22:46.773
So it wouldn't be excluded.
It should be excluded.
480
00:22:48.090 --> 00:22:49.980
Under this statute?
Yes.
481
00:22:49.980 --> 00:22:50.813
How?
482
00:22:50.813 --> 00:22:53.550
There's no direction of a police officer.
483
00:22:53.550 --> 00:22:55.650
We don't need a blood draw.
484
00:22:55.650 --> 00:22:58.950
Well, alright, so you're talking about analysis
485
00:22:58.950 --> 00:23:00.420
at the direction of police officers.
486
00:23:00.420 --> 00:23:01.253
Well, I don't know.
487
00:23:01.253 --> 00:23:04.927
It says "provided, however, that if such test or analysis
488
00:23:04.927 --> 00:23:09.927
"was made by or at the direction of a police officer."
489
00:23:10.020 --> 00:23:11.730
My hypothetical doesn't have
490
00:23:11.730 --> 00:23:13.980
a police officer involved at all.
491
00:23:13.980 --> 00:23:15.330
Well, someone from the state lab
492
00:23:15.330 --> 00:23:16.800
works for the Massachusetts State Police.
493
00:23:16.800 --> 00:23:20.580
I'm positing an expert who's called by the DA's office.
494
00:23:20.580 --> 00:23:21.840
Outside of the State Police
495
00:23:21.840 --> 00:23:22.673
Crime laboratory?
496
00:23:22.673 --> 00:23:27.150
Yes, how would this statute exclude that testimony?
497
00:23:27.150 --> 00:23:30.720
Because the government is using that blood
498
00:23:30.720 --> 00:23:32.670
to prosecute Mr. Gannett in an OUI.
499
00:23:32.670 --> 00:23:34.140
But that's not what the statute says.
500
00:23:34.140 --> 00:23:35.790
Doesn't say the government.
501
00:23:35.790 --> 00:23:38.917
It says, "a test or analysis made by
502
00:23:38.917 --> 00:23:41.430
"or at the direction of a police officer."
503
00:23:41.430 --> 00:23:46.350
Under 24 (e) and under 24 (f), you can say no.
504
00:23:46.350 --> 00:23:48.750
I mean, there's a statutory consent
505
00:23:48.750 --> 00:23:51.123
that is built into the OUI statute.
506
00:23:52.290 --> 00:23:53.490
You can say no to...
507
00:23:53.490 --> 00:23:56.880
There's a consent, right, to expert testimony?
508
00:23:56.880 --> 00:23:58.430
No, Your Honor, there is not.
509
00:24:00.330 --> 00:24:03.120
Under your scenario, respectfully,
510
00:24:03.120 --> 00:24:06.565
I believe if the defendant has said no, no means no.
511
00:24:06.565 --> 00:24:07.590
[Justice Wolohojian] But to what?
512
00:24:07.590 --> 00:24:09.720
You can't use my private medical information
513
00:24:09.720 --> 00:24:11.310
to prosecute me in an OUI.
514
00:24:11.310 --> 00:24:13.770
I didn't consent to the use of my records.
515
00:24:13.770 --> 00:24:16.047
Because my records contain blood.
516
00:24:16.047 --> 00:24:19.800
And an expert hired by the government is gonna come in,
517
00:24:19.800 --> 00:24:21.090
analyze that blood.
518
00:24:21.090 --> 00:24:22.380
So the objection would be
519
00:24:22.380 --> 00:24:24.813
to the medical records themselves?
520
00:24:26.490 --> 00:24:28.803
So that would be an objection under what?
521
00:24:29.700 --> 00:24:30.600
Under the statute.
522
00:24:30.600 --> 00:24:34.080
He did not consent to the use of his blood sample
523
00:24:34.080 --> 00:24:35.730
as collected in the hospital
524
00:24:35.730 --> 00:24:37.170
to be used against him in an OUI prosecution.
525
00:24:37.170 --> 00:24:39.310
Counsel, what's your best argument
526
00:24:41.220 --> 00:24:42.720
against the proposition
527
00:24:42.720 --> 00:24:47.720
that chemical does not modify analysis?
528
00:24:48.030 --> 00:24:50.370
If I may, if you'll just indulge me a couple minutes.
529
00:24:50.370 --> 00:24:52.890
I have an explanation I think will shed light
530
00:24:52.890 --> 00:24:56.010
that's very relevant on this particular issue.
531
00:24:56.010 --> 00:24:57.960
In chemical testing-
That would be great.
532
00:24:57.960 --> 00:24:59.378
I'll be quick.
533
00:24:59.378 --> 00:25:00.840
I think that's a better question.
534
00:25:00.840 --> 00:25:03.270
So shed some light on the issue
535
00:25:03.270 --> 00:25:06.840
of whether chemical modifies analysis or not.
536
00:25:06.840 --> 00:25:09.270
The gold standard of blood alcohol testing
537
00:25:09.270 --> 00:25:12.510
is gas chromatography with flame ionization.
538
00:25:12.510 --> 00:25:14.490
Everyone agrees that that is the very best way
539
00:25:14.490 --> 00:25:16.980
to do a whole blood analysis.
540
00:25:16.980 --> 00:25:19.677
Below that is a breath test.
541
00:25:19.677 --> 00:25:22.650
And a breath test machine here in Massachusetts,
542
00:25:22.650 --> 00:25:24.330
it doesn't draw blood.
543
00:25:24.330 --> 00:25:26.610
You blow breath into it.
544
00:25:26.610 --> 00:25:29.730
It measures in ways the molecular content
545
00:25:29.730 --> 00:25:31.710
of alcohol in the breath sample.
546
00:25:31.710 --> 00:25:36.710
Then it applies a conversion factor: 2,100 to one.
547
00:25:37.860 --> 00:25:42.540
And then it prints out a BAC, a blood alcohol content,
548
00:25:42.540 --> 00:25:45.330
based on a conversion that the government has built
549
00:25:45.330 --> 00:25:46.770
into the machine.
550
00:25:46.770 --> 00:25:48.810
There's no difference between the conversion factor
551
00:25:48.810 --> 00:25:50.787
that the state lab is using in this case
552
00:25:50.787 --> 00:25:52.342
and the conversion factor that they built in.
553
00:25:52.342 --> 00:25:54.510
Is there a chemical analysis in that?
554
00:25:54.510 --> 00:25:58.470
The infrared light absorption is being measured
555
00:25:58.470 --> 00:26:01.440
both by infrared technology and a fuel cell?
556
00:26:01.440 --> 00:26:04.680
There's double.
So it's a chemical analysis.
557
00:26:04.680 --> 00:26:06.450
I'm just trying to get your answer to-
558
00:26:06.450 --> 00:26:08.450
It's not a chemical analysis of blood.
559
00:26:09.780 --> 00:26:11.820
There's no blood going into a Draeger Alpha test.
560
00:26:11.820 --> 00:26:13.560
It is a breath test.
I gotcha.
561
00:26:13.560 --> 00:26:15.330
And then, they're applying a conversion
562
00:26:15.330 --> 00:26:16.920
to get the blood.
So let's get to the blood.
563
00:26:16.920 --> 00:26:18.150
We're talking about blood here, right?
564
00:26:18.150 --> 00:26:19.683
So let's skip to that.
565
00:26:20.790 --> 00:26:22.260
So I understand the breathalyzer.
566
00:26:22.260 --> 00:26:23.850
Keep going.
So in a hospital,
567
00:26:23.850 --> 00:26:27.210
as I said, they draw blood for medical purposes.
568
00:26:27.210 --> 00:26:28.770
They bring it to their laboratory.
569
00:26:28.770 --> 00:26:30.030
There it sits.
570
00:26:30.030 --> 00:26:33.450
It is tested pursuant to a protocol that hospitals use,
571
00:26:33.450 --> 00:26:37.860
which is drastically different than what the state lab uses.
572
00:26:37.860 --> 00:26:40.240
And the hospital records from Lahey
573
00:26:41.280 --> 00:26:44.527
literally say, "These tests are for screening purposes only
574
00:26:44.527 --> 00:26:47.400
"and should only be used for medical purposes."
575
00:26:47.400 --> 00:26:48.810
You see that in medical records
576
00:26:48.810 --> 00:26:51.450
throughout the Commonwealth from Lahey.
577
00:26:51.450 --> 00:26:52.883
Anna Jaques I know has the same.
578
00:26:52.883 --> 00:26:54.120
[Justice Wendlandt] So those are actually chemical tests
579
00:26:54.120 --> 00:26:55.020
and analysis.
580
00:26:55.020 --> 00:26:57.990
They are, and they're screened, but they're a lower level.
581
00:26:57.990 --> 00:26:59.580
I would even put 'em below a breath test
582
00:26:59.580 --> 00:27:01.440
because they're simply screening devices
583
00:27:01.440 --> 00:27:02.820
used for medical professionals
584
00:27:02.820 --> 00:27:06.960
to make quick reasonable decisions based on what's on board.
585
00:27:06.960 --> 00:27:10.020
And the fact that they take that type of result,
586
00:27:10.020 --> 00:27:11.917
the hospital tells them, "Don't use this
587
00:27:11.917 --> 00:27:14.430
"for legal or employment purposes."
588
00:27:14.430 --> 00:27:18.300
They take that sample, apply their conversion rate,
589
00:27:18.300 --> 00:27:21.420
and put it into a blood alcohol result.
590
00:27:21.420 --> 00:27:23.880
Doesn't that go to the weight of the evidence
591
00:27:23.880 --> 00:27:26.070
as opposed to the admissibility of the evidence
592
00:27:26.070 --> 00:27:27.390
under the statute?
593
00:27:27.390 --> 00:27:29.850
I've cross-examined and argued that in courtrooms.
594
00:27:29.850 --> 00:27:32.280
But I think the way that this court
595
00:27:32.280 --> 00:27:35.340
has set up Bohigian and Moreau,
596
00:27:35.340 --> 00:27:37.188
it just begs the question that that is an analysis.
597
00:27:37.188 --> 00:27:38.083
[Chief Justice Budd] Did you answer
598
00:27:38.083 --> 00:27:42.360
Justice Wendlandt's question about chemical?
599
00:27:42.360 --> 00:27:44.692
I'm happy to go back to it.
Would you?
600
00:27:44.692 --> 00:27:45.960
[Justice Wendlandt] Yeah, you were shedding some light
601
00:27:45.960 --> 00:27:47.640
as you last left it.
602
00:27:47.640 --> 00:27:49.200
The hierarchy of testing,
603
00:27:49.200 --> 00:27:51.510
the point is is that this enzymatic profile
604
00:27:51.510 --> 00:27:52.710
that's done in the hospital lab
605
00:27:52.710 --> 00:27:55.170
is below that of a breath test,
606
00:27:55.170 --> 00:27:57.000
and only better than urinalysis
607
00:27:57.000 --> 00:27:58.710
which is the bottom of the barrel.
608
00:27:58.710 --> 00:28:01.710
So what the government is using,
609
00:28:01.710 --> 00:28:05.550
it requires analysis in order to present it to a jury.
610
00:28:05.550 --> 00:28:08.760
It's just beyond the understanding of most folks.
611
00:28:08.760 --> 00:28:11.370
But the chemical test and analysis
612
00:28:11.370 --> 00:28:12.660
that you're describing now,
613
00:28:12.660 --> 00:28:14.310
that was done for medical purposes
614
00:28:14.310 --> 00:28:15.277
with all the caveats of,
615
00:28:15.277 --> 00:28:17.790
"But don't use this for legal proceedings,"
616
00:28:17.790 --> 00:28:20.070
that was not done at the direction of the police
617
00:28:20.070 --> 00:28:20.903
in this case.
618
00:28:20.903 --> 00:28:22.560
At least, that's not what you're arguing.
619
00:28:22.560 --> 00:28:23.790
Right?
Right.
620
00:28:23.790 --> 00:28:25.680
So that chemical test was done by the hospital
621
00:28:25.680 --> 00:28:27.120
for medical purposes.
622
00:28:27.120 --> 00:28:29.430
Why does the mathematical conversion
623
00:28:29.430 --> 00:28:32.400
that was actually done by the police,
624
00:28:32.400 --> 00:28:33.780
or at the direction of the police
625
00:28:33.780 --> 00:28:36.000
by somebody who knows math,
626
00:28:36.000 --> 00:28:40.140
why is that a chemical analysis?
627
00:28:40.140 --> 00:28:41.593
Well, Your Honor, there is
628
00:28:41.593 --> 00:28:43.396
a chemical analysis going on at the Beverly Hospital.
629
00:28:43.396 --> 00:28:44.760
Right, but that was done by the hospital, right?
630
00:28:44.760 --> 00:28:46.590
Exactly, we've all agreed to that point.
631
00:28:46.590 --> 00:28:49.080
There's been a chemical test and analysis.
632
00:28:49.080 --> 00:28:54.080
Your position, I thought, was even doing math on that result
633
00:28:54.420 --> 00:28:55.560
falls within the statute
634
00:28:55.560 --> 00:28:58.890
because chemical must modify analysis within the statute.
635
00:28:58.890 --> 00:29:00.363
And I'm wondering why?
636
00:29:04.110 --> 00:29:07.410
Because there's an organic sample in the hospital lab.
637
00:29:07.410 --> 00:29:08.580
Chemistry was utilized
638
00:29:08.580 --> 00:29:12.510
to get a nanogram per deciliter result enzyme.
639
00:29:12.510 --> 00:29:14.580
And then they're further building upon that
640
00:29:14.580 --> 00:29:16.053
by way of analysis.
641
00:29:16.950 --> 00:29:19.020
Analysis of nothing is nothing.
642
00:29:19.020 --> 00:29:20.670
There was a blood test in a hospital.
643
00:29:20.670 --> 00:29:21.600
Right, but the question is
644
00:29:21.600 --> 00:29:25.200
whether chemical modifies analysis or not.
645
00:29:25.200 --> 00:29:26.610
It does.
646
00:29:26.610 --> 00:29:28.020
The plain language, obviously,
647
00:29:28.020 --> 00:29:30.360
it says chemical analysis, yes.
648
00:29:30.360 --> 00:29:31.380
So it does.
Right.
649
00:29:31.380 --> 00:29:35.382
So you're saying math is chemical analysis?
650
00:29:35.382 --> 00:29:37.410
It is if you're analyzing chemicals.
651
00:29:37.410 --> 00:29:39.210
And ethanol is a chemical.
652
00:29:39.210 --> 00:29:40.590
It's actually a poison.
653
00:29:40.590 --> 00:29:44.370
But yes, that conversion factor is an analysis
654
00:29:44.370 --> 00:29:45.517
just like it-
655
00:29:45.517 --> 00:29:47.070
[Justice Wendlandt] But it's a chemical analysis
656
00:29:47.070 --> 00:29:47.903
is what you're saying.
657
00:29:47.903 --> 00:29:51.810
Don't you wanna say that it doesn't modify analysis?
658
00:29:51.810 --> 00:29:53.640
I mean, I'm just gonna give you a chance
659
00:29:53.640 --> 00:29:54.473
to think about that.
660
00:29:54.473 --> 00:29:57.270
Because if it doesn't modify analysis,
661
00:29:57.270 --> 00:29:58.357
then you can say,
662
00:29:58.357 --> 00:30:00.837
"Oh, there was a mathematical analysis done."
663
00:30:03.120 --> 00:30:04.500
Your Honor, you are correct.
664
00:30:04.500 --> 00:30:06.120
I was just trying to help.
I'll take that back.
665
00:30:06.120 --> 00:30:06.960
Thank you.
666
00:30:06.960 --> 00:30:09.570
It is a mathematical conversion.
667
00:30:09.570 --> 00:30:11.103
But that is an analysis.
668
00:30:12.720 --> 00:30:15.480
Can you just take a crack
669
00:30:15.480 --> 00:30:18.150
at how reading analysis in this way,
670
00:30:18.150 --> 00:30:21.180
which is, you know, a broad reading of the word analysis
671
00:30:21.180 --> 00:30:23.130
to comprise any kind of analysis
672
00:30:23.130 --> 00:30:25.650
that one might do including math,
673
00:30:25.650 --> 00:30:29.310
how that relates to the purposes of the legislature
674
00:30:29.310 --> 00:30:31.320
set forth in the statute here.
675
00:30:31.320 --> 00:30:34.230
The legislature has had every opportunity
676
00:30:34.230 --> 00:30:36.630
to modify the statute.
677
00:30:36.630 --> 00:30:39.900
They haven't, despite Bohigian and Moreau.
678
00:30:39.900 --> 00:30:44.190
And, as I said, it's a statutory consent mechanism.
679
00:30:44.190 --> 00:30:47.283
Well, I think that the Commonwealth is arguing
680
00:30:47.283 --> 00:30:51.120
that that kind of strain of argument
681
00:30:51.120 --> 00:30:52.320
actually goes against you.
682
00:30:52.320 --> 00:30:57.240
Because it's pretty clear from a number of past cases
683
00:30:57.240 --> 00:31:00.390
that this mathematical analysis is happening.
684
00:31:00.390 --> 00:31:02.610
And the legislature hasn't changed the statute to bar it.
685
00:31:02.610 --> 00:31:04.830
So I understood the purpose of the statute
686
00:31:04.830 --> 00:31:07.200
to relate in part to bodily autonomy.
687
00:31:07.200 --> 00:31:10.740
And how does your argument about whether
688
00:31:10.740 --> 00:31:13.180
the Commonwealth can do a mathematical analysis
689
00:31:14.400 --> 00:31:16.320
relate to that purpose?
690
00:31:16.320 --> 00:31:18.000
Everything we're talking about
691
00:31:18.000 --> 00:31:20.370
began in the body of Denny Gannett.
692
00:31:20.370 --> 00:31:24.060
It is his bodily fluids that were gathered at the hospital,
693
00:31:24.060 --> 00:31:25.950
not for an OUI prosecution.
694
00:31:25.950 --> 00:31:27.510
He's already said no.
695
00:31:27.510 --> 00:31:30.360
He already exercised his right to say no.
696
00:31:30.360 --> 00:31:32.910
He gave no consent for chemical testing
697
00:31:32.910 --> 00:31:34.710
of his breath at the police station.
698
00:31:35.580 --> 00:31:38.370
The fact that he finds himself in the hospital
699
00:31:38.370 --> 00:31:39.600
should not change that.
700
00:31:39.600 --> 00:31:41.490
He still has autonomy in his body.
701
00:31:41.490 --> 00:31:44.553
But he gives consent to the hospital to take his blood.
702
00:31:46.845 --> 00:31:49.530
He wants them to find out what's wrong with him, right?
703
00:31:49.530 --> 00:31:51.090
He might not next month.
704
00:31:51.090 --> 00:31:52.533
So it comes down to,
705
00:31:53.430 --> 00:31:56.280
the language is cutting against you.
706
00:31:56.280 --> 00:31:57.840
We've got your public policy,
707
00:31:57.840 --> 00:32:00.060
which is protecting his privacy
708
00:32:00.060 --> 00:32:03.210
even when he's consented to the blood test,
709
00:32:03.210 --> 00:32:06.330
versus their view, which is bodily integrity is forcing,
710
00:32:06.330 --> 00:32:08.940
using the police to force the test.
711
00:32:08.940 --> 00:32:09.773
Right?
712
00:32:11.761 --> 00:32:13.170
It is a medical test.
713
00:32:13.170 --> 00:32:15.690
But my point is, he very well might refuse
714
00:32:15.690 --> 00:32:18.150
that medical treatment, necessary medical treatment,
715
00:32:18.150 --> 00:32:22.140
if he knows that his, "No, don't use my fluids,"
716
00:32:22.140 --> 00:32:25.923
is gonna be overridden and backdoored by a warrant, Rule 17.
717
00:32:27.843 --> 00:32:28.952
[Chief Justice Budd] Okay, thank you.
718
00:32:28.952 --> 00:32:31.452
Nothing further, thank you.