Can the Police Test Your Blood Without Your Consent? The Massachusetts Appellate Court May Decide.

 The Massachusetts statutes state that when a chemical “test or analysis” of a defendant’s blood-alcohol content is made by or at the direction of police, it is admissible in court only if the defendant consents. In the case of Commonwealth v. Eric Moreau, the police obtained a warrant to seize blood drawn from the defendant by hospital personnel and then tested it in the State Police Crime Lab without the defendant’s consent. This case is pending before the Massachusetts Appellate Court and asks whether the result of the test is admissible in the prosecution of the defendant.

What happened in the Moreau case?

In September of 2020, Officer Willis of the Gardner Police Department responded to reports of a motor vehicle struck a tree. The officer observed Moreau to be unsteady on his feet, glassy eyed, and slurring his speech. He was transported to the hospital for treatment. The officer obtained a search warrant for Moreau’s blood. The warrant was executed but there was no evidence that Moreau consented.

Moreau was charged in Gardner District Court with operation of a motor vehicle while under the influence of liquor and negligent operation of motor vehicle. Moreau filed a motion to suppress the results of the blood alcohol analysis.

The motion judge denied Moreau’s motion to suppress the BAC results on the theory that the OUI statute only prohibits police from drawing a defendant’s blood without his consent but does not prohibit the police from then testing that blood without his consent.

Moreau is appealing this result on the theory that the judge misinterpreted the statute. The first reason is that the Massachusetts legislature provided residents with more protection than the United States Constitution. The statute plainly requires consent for BAC analysis and cannot be read to only apply to blood draws. Test and analysis are clearly intended to have their plain meanings.

Further, the statute must be construed as written. The legislature intended to create protections for OUI defendants the exceed those protections enshrined by the Constitution and the Declaration of Rights. The history of the statute supports that the legislature understood the scope of protection it was granting.

The involuntary collection of a blood sample is a search and seizure and therefore violates the defendant’s right to privacy. One’s blood and all the information contained in it, is private.

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