The Commonwealth of Massachusetts Appeals Court is currently considering the case of  Commonwealth v. Brian Dennis 

raise the issue of how the Commonwealth proves consent to a blood test.  Dennis is being represented by a very talented DUI lawyer Joesph Bernard out of Springfield who I have known for many years.  Lawyers for Brian Dennis, a man who was arrested for suspected drunk driving, are arguing that the use of a blood sample taken from him after his arrest is a violation of his constitutional rights and should have been suppressed from evidence at his OUI trial in Palmer District Court.

What happened in the case? 

Witnesses to a car crash in Ludlow, Massachusetts saw Brian Dennis drive his car into a pole on the night of November 13, 2016. Finding him to be unconscious, the onlookers went to his aid and removed him from the vehicle. When the authorities arrived, they found Mr. Dennis to be conscious but in a very impaired state. He verbally admitted to police at the scene that he had been drinking. The officer on the scene testified that she accompanied him to the hospital and read him his Miranda rights several times, explaining to him that he was being placed under arrest for operating under the influence of alcohol. She also provided him with a Statutory Rights and Consent form, which he signed at the hospital before his blood was drawn to be taken back to law enforcement as evidence.

Arguments to exclude the Blood test

There are several components to Mr. Dennis’ argument for exclusion of his blood sample evidence. The first argument is that the Massachusetts Declaration of Rights and Constitution give the inherent right to refuse a blood test. The Fourth Amendment of the Constitution provides that citizens have the right to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.“ Since the taking of a blood sample is considered to be a “search and seizure” under the law, Dennis argues that he had a Fourth Amendment right to refuse the test to begin with. The Commonwealth argues in response that current case law clearly supports the doctrine of implied consent, which allows for law enforcement to test any individual driving on a public road if they are arrested for driving under the influence.  The defense correctly pointed out that the United States Supreme Court in Missouri v. McNeely, 133 S. Ct. 1552 (2013), rejected the argument that the implied consent allows warrantless blood draws; had that been the case, the Supreme Court would not have had to address the exigent circumstances exception.  Further, in the case of Wisconsin v. Mitchell, the United States held that exigent circumstances allows the warrantless blood draw of an unconscious individual.

The constitutionality of the implied consent law aside, the Commonwealth also relies on the fact that Mr. Dennis gave his express consent to the blood test when he voluntarily signed the Statutory Rights and Consent Form and allowed for his blood to be taken without any objection. Dennis argues that when viewed with the “totality of the circumstances” as the law requires, the ambiguity in the language of the Statutory Rights and Consent Form combined with Dennis’ interaction with law enforcement created a situation in which he cannot be deemed to have given his consent voluntarily. The Consent Form states that a “chemical test” will be given to determine blood alcohol content, but does not specify that it will be a blood test. And while a law enforcement officer could provide that clarification to an arrestee in the process of obtaining valid consent, there is no evidence that the officer in Dennis’ case made any such clarification.

Oral argument was held in April and a decision from the Appeals Court is expected in the coming months. The decision could have a significant impact on the way that blood alcohol test are administered by law enforcement in the future.  If the defense argument is successful the implied consent form would have to change to more manfully advise a person of their right regarding a blood test.

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