This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
Rubin, Brown & Maldonado, JJ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a two-day jury-waived trial, the defendant, Michael Hill, was convicted of operating under the influence of liquor, third offense, pursuant to G. L. c. 90, § 24(1)( a )(1). On appeal, the defendant contends that his pretrial motion to suppress evidence pertaining to a blood alcohol test was erroneously denied because (1) there was no warrant obtained prior to the drawing of his blood, and (2) his consent to the blood test was obtained by trickery, while he was in the emergency room being treated with morphine for his injuries. We affirm.
We summarize the facts from the motion judge's findings, supplemented with uncontested facts from the evidentiary hearing merely to provide context. See Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007). On September 28, 2006, at 9:00 p.m., a uniformed officer, Mark Panjwani, was dispatched to the scene of a motor vehicle accident. Upon Panjwani's arrival, the defendant was lying on the ground near a 2002 Fat Boy Harley-Davidson motorcycle, and was being treated by paramedics. Panjwani spoke to the driver of the other motor vehicle, who informed him that the collision occurred when the defendant's motorcycle " appeared out of nowhere" at a high rate of speed as the motor vehicle driver was turning left. Another witness gave a similar account.
Panjwani went over to the defendant, who was awake, seemingly alert, and was describing his condition to the paramedics. Panjwani observed that the defendant's speech was slurred, his eyes were red and glassy, and his breath smelled of alcohol. The defendant was placed in an ambulance and transported to the emergency room at Beverly Hospital. Panjwani, in a separate vehicle, drove to Beverly Hospital, which was two minutes away, to continue his investigation.
When Panjwani entered the emergency room area, he waited outside of the trauma room, where the defendant was being treated. After waiting outside for thirty minutes, a nurse allowed Panjwani into the defendant's room. Panjwani was informed that the defendant had a broken leg. When Panjwani entered the room he smelled a strong order of alcohol. The defendant was lying in a bed raised at a forty-five percent angle; Panjwani asked the defendant what happened during the accident. The defendant informed Panjwani that he remembered getting on his motorcycle and the next thing he knew he was in the hospital. The defendant stated to Panjwani that he did not know whether he had consumed alcohol prior to the accident. Panjwani then told the defendant that he would be summonsed to court for operating a vehicle while under the influence of intoxicating liquor. Panjwani read aloud word by word to the defendant a police form entitled " Statutory Rights and Consent Form," as the defendant, due to an eye injury, was unable to read the form himself. The defendant appeared to understand the form, as he consented to submit to a chemical test to determine his blood alcohol content. Panjwani checked a box on the form indicating that the defendant consented to the blood test, and the defendant signed the form. During their conversation the defendant did not appear to be in any excessive pain.
Forty-five minutes later, two nurses entered the room to draw the defendant's blood for Panjwani's analysis. Prior to the drawing of blood, the defendant signed a hospital form entitled " Blood Alcohol Consent." The form was explained to the defendant, and he understood from the form that by consenting to provide a sample of blood for police analysis, the results could be used against him in a court of law. The defendant consented and signed the form. One nurse witnessed the defendant's signature while the other nurse drew his blood and handed a sample to Panjwani. The results of the test revealed that the defendant's blood alcohol content was .19 percent.
a. Motion to suppress.
In reviewing a ruling on a motion to suppress we accept, absent clear error, the motion judge's subsidiary findings of fact and accord " substantial deference" to the judge's ultimate findings. Commonwealth v. Monteiro, 396 Mass. 123, 131, 484 N.E.2d 999 (1985). " The ultimate legal conclusions to be drawn from the subsidiary findings of fact, however, are matters for review by this court." Commonwealth v. Carr, 458 Mass. 295, 299, 936 N.E.2d 883 (2010) (citation omitted).
b. Validity of consent.
While the taking of a blood sample is considered a search and seizure within the meaning of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, in cases " [w]here, as here, there is probable cause to believe that a defendant has been operating a motor vehicle while impaired, the defendant has no constitutional right to refuse a blood test or breathalyzer test." Commonwealth v.Carson, 72 Mass.App.Ct. 368, 370, 892 N.E.2d 347 (2008). His consent is needed, however, in order for the test results to be admissible as evidence. G. L. c. 90, § 24(1)( e ) and ( f ). As the defendant's right to refuse a blood test is one of a statutory nature rather than a constitutional one, " the consent required is not the 'knowing, voluntary and intelligent' consent required for waiver of constitutional ...