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Commonwealth v. Dennis

Appeals Court of Massachusetts, Hampden

November 19, 2019

Brian G. DENNIS.

         Argued April 2, 2019

         [135 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 him.

          Erica M. Bruno, for the defendant.

          Benjamin Shorey, Assistant District Attorney, for the Commonwealth.

         Present: Rubin, Henry, & Wendlandt, JJ.


         RUBIN, J.

         [135 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.

         Background .

         In reviewing the denial of a motion to suppress, we "accept the judge’s 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 Dion’s 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:

          At 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 sheriff’s 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 defendant’s 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 Dion’s initial attempt to obtain the defendant’s 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 ...

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