Drunk driving case raises consent issues

Can police test blood drawn for medical reasons?

IT IS ESTABLISHED case law that someone suspected of drunk driving must consent before a blood test can be performed on them, for the safety of both the individual and the medical personnel performing the blood draw.   

But what happens if the suspect’s blood is drawn by medical personnel for medical reasons, with the person’s consent? Can the police later test that blood to determine blood alcohol content without consent? 

That’s the issue coming before the Supreme Judicial court on Wednesday. According to court briefs, Eric Moreau was driving in Gardner when his pickup truck struck a tree. The police said Moreau was unsteady on his feet; had glassy, bloodshot eyes; slurred speech; and smelled like alcohol. A police officer was unsure of the extent of Moreau’s injuries, so he called an ambulance. Moreau was transported to Heywood Hospital, where his blood was drawn by medical personnel for medical reasons. The police officer wrote a letter requiring the hospital to preserve Moreau’s blood, then obtained a warrant, picked up the blood sample, and had it analyzed by the State Police crime lab to determine Moreau’s blood alcohol content. 

Moreau argues that the police cannot use the evidence obtained from his blood because he did not consent to the analysis. A Gardner District Court judge denied his motion to suppress the evidence, and the SJC took up the case on appeal. 

“The questions presented in this case may have significant impact on the District Attorneys’ ability to protect the lives of the public from drunk drivers,” seven of the state’s 11 District Attorneys wrote in a court brief. 

The state law allowing a blood alcohol content test to be used in court states that it is only admissible provided that “if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the defendant.” 

Ann Grant, a public defender representing Moreau, argues in a court brief that the law uses the language “test or analysis” to indicate that the defendant needs to consent to the police analysis, not only the blood draw itself. “The defendant’s consent is required if police are to draw his blood and if police test it for BAC [blood alcohol content],” she wrote. Without that consent, she wrote, the analysis is inadmissible. 

While Grant acknowledged that the same safety concerns do not apply when the police are testing blood, rather than drawing it, she said the analysis still implicates a person’s right to privacy. 

Assistant District Attorney Donna-Marie Haran, representing Worcester District Attorney Joseph Early, who prosecuted the case, responded in a court brief that consent is necessary only for a blood draw, not for the police’s subsequent analysis. 

Haran argues that the law requires the blood test be done “at the direction of a police officer” in order for consent to be required. In a case where blood is drawn by medical personnel during the normal course of treatment, with the patient’s consent, there is no police action, so the legal protections against unreasonable search and seizure do not apply. As long as the police get a warrant, she says, the defendant’s rights were not implicated when the police took the blood from the hospital. 

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Shira Schoenberg

Reporter, CommonWealth

About Shira Schoenberg

Shira Schoenberg is a reporter at CommonWealth magazine. Shira previously worked for more than seven years at the Springfield Republican/MassLive.com where she covered state politics and elections, covering topics as diverse as the launch of the legal marijuana industry, problems with the state's foster care system and the elections of U.S. Sen. Elizabeth Warren and Gov. Charlie Baker. Shira won the Massachusetts Bar Association's 2018 award for Excellence in Legal Journalism and has had several stories win awards from the New England Newspaper and Press Association. Shira covered the 2012 New Hampshire presidential primary for the Boston Globe. Before that, she worked for the Concord (N.H.) Monitor, where she wrote about state government, City Hall and Barack Obama's 2008 New Hampshire primary campaign. Shira holds a master's degree from Columbia University's Graduate School of Journalism.

About Shira Schoenberg

Shira Schoenberg is a reporter at CommonWealth magazine. Shira previously worked for more than seven years at the Springfield Republican/MassLive.com where she covered state politics and elections, covering topics as diverse as the launch of the legal marijuana industry, problems with the state's foster care system and the elections of U.S. Sen. Elizabeth Warren and Gov. Charlie Baker. Shira won the Massachusetts Bar Association's 2018 award for Excellence in Legal Journalism and has had several stories win awards from the New England Newspaper and Press Association. Shira covered the 2012 New Hampshire presidential primary for the Boston Globe. Before that, she worked for the Concord (N.H.) Monitor, where she wrote about state government, City Hall and Barack Obama's 2008 New Hampshire primary campaign. Shira holds a master's degree from Columbia University's Graduate School of Journalism.

“It is clear that a defendant’s consent is required for a blood draw or submission to a BAC test (breathalyzer),” Haran wrote. “A defendant’s consent, however, is not required before blood drawn by hospital personnel for medical purposes, which the police subsequently submit to the crime lab, may be tested.” 

Seven district attorneys – from Hampden, Bristol, Essex, Norfolk, Middlesex, and Plymouth counties and the Northwestern District, which includes Hampshire and Franklin counties – submitted a brief siding with Early. The only district attorneys not to sign on were Cape and Islands District Attorney Michael O’Keefe, Suffolk District Attorney Rachael Rollins, and Berkshire District Attorney Andrea Harrington. 

The prosecutors say the reason for requiring consent to a blood draw is as a safety measure, to protect the defendant and the medical provider. The court does not want to provoke a physical confrontation between a person and a provider, or force someone with certain medical conditions to undergo a blood test.  “Once the blood is taken, however, the risk of injury from an involuntary blood draw is nonexistent,” the prosecutors said in their brief.