April 2, 2019
N.E.3d 1072] Motor Vehicle, Operating under the
influence. Evidence, Blood alcohol test.
Constitutional Law, Search and seizure, Blood test.
Search and Seizure, Blood sample, Consent, Exigent
circumstances. Consent . Practice,
Criminal, Motion to suppress.
COMPLAINT received and sworn to in the Palmer Division of the
District Court Department on November 14, 2016. A pretrial
motion to suppress evidence was heard by Matthew J.
Shea, J., and a motion for reconsideration was heard by
M. Bruno, for the defendant.
Benjamin Shorey, Assistant District Attorney, for the
Rubin, Henry, & Wendlandt, JJ.
N.E.3d 1073] In this case, we are required to examine the
consequences with respect to police practices in the
Commonwealth of three relatively recent United States Supreme
Court decisions relating to the scope of governmental
authority to draw and test the blood of an individual
arrested for operating while under the influence of
intoxicating liquor. The defendant argues that, because of
these decisions, the motion judge erred in denying his motion
to suppress. We agree and therefore reverse.
reviewing the denial of a motion to suppress, we "accept
the judges subsidiary findings absent clear error but
conduct an independent review of his ultimate findings and
conclusions of law." Commonwealth v. Jimenez,
438 Mass. 213, 218, 780 N.E.2d 2 (2002). In his decision on
the motion to suppress, the judge credited the testimony of
Officer Melissa Dion of the Ludlow Police Department, who
testified at the motion to suppress hearing. The judge made
findings of fact and adopted Officer Dions version of events
as true. His findings, supplemented by the testimony that he
credited, Commonwealth v. Isaiah I., 448 Mass. 334,
337, 861 N.E.2d 404 (2007), S . C ., 450
Mass. 818, 882 N.E.2d 328 (2008), include the following:
approximately 12:11 A.M. Officer Dion and another officer,
Andrew Roxo, responded to a report of a car crash, and found
the defendant unconscious in his vehicle, which had
apparently crashed into a utility pole. Witnesses from the
sheriffs department were present, and they extracted the
defendant from his car. The defendant regained limited
ability to respond to questions in a yes/no fashion and
admitted that he had had something to drink. Officer Dion
observed a number of empty alcohol containers in the
defendants car and the odor of alcohol on the defendant.
When asked, the defendant responded that he did not have any
preexisting medical conditions.
Officers Dion and Roxo called for an ambulance, which arrived
and took the defendant to Baystate Medical Center in
Springfield, where it arrived at approximately 1:00 A.M.
Officer Dion went with the defendant in the ambulance and
stayed with him at the hospital. The defendant was placed
under arrest for operating while under the influence of
alcohol, and Miranda warnings were administered to him by
Officer Dion in the ambulance. In the emergency room, Miranda
warnings were readministered by Officer Dion and the
defendant said that he had been drinking and was guilty.
Officer Dions initial attempt to obtain the defendants
consent to a blood draw was delayed when a nurse indicated
that the defendant was not medically cleared to consent. At
approximately 3:30 A.M., when the defendant apparently had
been medically cleared for a conversation about obtaining a
blood draw, and his demeanor had materially changed from his
initial one-word answers, Officer Dion read to the defendant
at the hospital a "statutory rights and consent
form." That form states, as relevant here:
"I am requesting that you submit to a chemical test to
determine your blood alcohol concentration.... If you refuse
this test, your license or right to operate in Massachusetts
shall be suspended for at least a period of up to 180 days or
up to life for such refusal. The suspension if you take the
test and fail it is 30 days.... If you decide to take the
test and complete it, you will have the right to a comparison
blood test within a reasonable period of time at your own
expense. The results of this comparison test can be used to
restore your license or right to operate at a court hearing
within 10 days.... It is not your option [135 N.E.3d 1074]
which type of chemical test to take. Refusal or failure to
consent to take ...