The Massachusetts Supreme Judicial Court decided the case of Commonwealth v. Charles Bohigian today holding that a blood draw without the consent of the defendant is inadmissible into evidence. This case arose out of the Westborough District Court and was transferred to Worcester District Court for trial.
The defendant was charged with OUI causing Serious Bodily Injury.
The Massachusetts Supreme Judicial Court stated that it is Constitutional to draw blood without consent as long as an officer has a warrant or exigency circumstances make getting a warrant impractical. However, the legislature created a statutory framework for getting Blood in the context of an OUI.
Chapter 90 Section 24 states that when defendant’s breath or blood is tested at the direction of a police officer it must be done with consent. The statute states that if the defendant refuses consent, no testing shall be done but sets forth penalties in terms of the length of license suspension for refusing a breath test.
The defendant argued that his blood was taken in violation of the statute since he did not consent to the blood draw.
The majority found that the statute clearly prohibits blood draws without consent in the context of an OUI. The motion judge and dissent argued that the blood was not taken at the direction of a police officer because it was done pursuant to a warrant.
The SJC held that Section 24(1)(f)(1) prohibits blood draws without consent regardless of who directs it.
The SJC found that decision of the Appeals Court properly found that a requirement of consent is imposed by statute even when there is probably cause and exigency circumstances. The Appeals Court has found that involuntary blood draws are specifically prohibited for OUI prosecutions.
The SJC held that the legislature can create greater privacy protections over those granted by the Federal and State Constitution. Further, the majority indicated that several other states, including Rhode Island have laws that prohibit blood draws with consent. The SJC noted that requiring consent is important to protect the health care workers and avoid violate confrontation to obtain someone’s blood. In the Bohigian case, there was a violate struggle to obtain the defendant’s blood. There was a violate struggle to obtain his blood. The SJC properly held that the law is clear that consent is required for a blood draw. This is an important decision protecting the privacy interests of the person having their blood drawn as well as protecting health care workers from putting their safety at risk in obtaining blood.
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