Recently, the Supreme Court of the United States decided three cases that require a new look at determining the standard for consent under the Fourth Amendment to the Constitution. In Missouri v. McNeely, the Court held that the taking and testing of a person’s blood could not be done without probable cause and a warrant unless there is some exception.  The Court further held that a search incident to an arrest cannot justify a warrantless blood draw in the case of  Birchfield v. North Dakota.  Finally, in Mitchell v. Wisconsin, a majority of the Court held that implied consent statutes do not give unfettered consent to a search to draw blood under the Constitution.

Given these decisions, the Appeals Court of Massachusetts reexamined how these cases impacted the decision in Commonwealth v. Dennis.  In this case, officers arrive at the scene of an accident and find the defendant behind the wheel.  At the scene, the defendant admitted that he had been drinking, there were empty alcohol containers in the car, and the officer observed the smell of alcohol on the defendant.  Because of his condition, officers transported him to a medical center.  After that, they placed him under arrest.  The officer attempted to get the defendant’s consent for a blood draw, but he was not medically cleared to give his consent.  Two and one-half hours later, the officer read the defendant the rights and consent form. Of significance, the request is only for a “chemical test.” It does not “specify that the “chemical test” will be on blood, as opposed to breath, urine, or anything else…”

The first step in evaluating whether a defendant has consented to a blood draw when there is probable cause for his or her arrest is to determine if the blood draw requires a warrant or are there exigent circumstances that excuse the police from obtaining a warrant.  Just because alcohol will dissipate from the blood the moment a person stops consuming alcohol does not automatically mean that there are exigent circumstances.  This was the ruling on Missouri v. McNeely.

If there are exigent circumstances, law enforcement may only draw a defendant’s blood if the defendant consents. Here, the court uses what it calls the “traditional indicia” standard to determine if the consent to a blood draw was valid.  This means the defendant’s consent must be actual, voluntary consent under the Federal Constitution.

Here, applying the principles outlined in McNeely, Birchfield, and Mitchell, the Appeals Court determined that the defendant’s consent was not valid because it did not meet the burden using this standard.  Here, the Commonwealth had probable cause to believe the defendant was operating a vehicle under the influence of alcohol.  However, the Commonwealth did not have a warrant. Further, the Commonwealth did not argue exigent circumstances here (despite three hours between the call of an accident and the blood draw).  Therefore, the only legal, proper means to obtain the defendant’s blood was through his consent.  The court found the ambiguity to the type of “chemical test” the defendant agreed to was not sufficient “to sustain the Commonwealth’s burden of demonstrating actual consent to a blood test.”

The Appeals Court’s ruling was well reasoned and held the the implied consent used for a breath test was not sufficient to deem that a defendant consented to a blood test.  Accordingly, the Appeals Court ruled in Dennis that the blood test results in the case should be suppressed.  This case had an interesting procedural history in that the defendant accepted a conditional plea, meaning that since his appeal was successful he will be allowed to vacate his plea and procedure to trial.

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