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17-P-1279                                               Appeals Court

                COMMONWEALTH   vs.   BRIAN G. DENNIS.


                           No. 17-P-1279.

        Hampden.       April 2, 2019. - November 19, 2019.

            Present:   Rubin, Henry, & Wendlandt, JJ.


Motor Vehicle, Operating under the influence. Evidence, Blood
     alcohol test. Constitutional Law, Search and seizure,
     Blood test. Search and Seizure, Blood sample, Consent,
     Exigent circumstances. Consent. Practice, Criminal,
     Motion to suppress.



     Complaint received and sworn to in the Palmer Division of
the District Court Department on November 14, 2016.

     A pretrial motion to suppress evidence was heard by Matthew
J. Shea, J., and a motion for reconsideration was heard by him.


     Erica M. Bruno for the defendant.
     Benjamin Shorey, Assistant District Attorney, for the
Commonwealth.


    RUBIN, J.   In this case, we are required to examine the

consequences with respect to police practices in the

Commonwealth of three relatively recent United States Supreme

Court decisions relating to the scope of governmental authority
                                                                      2


to draw and test the blood of an individual arrested for

operating while under the influence of intoxicating liquor.      The

defendant argues that, because of these decisions, the motion

judge erred in denying his motion to suppress.    We agree and

therefore reverse.

    Background.      In reviewing the denial of a motion to

suppress, we "accept the judge's subsidiary findings absent

clear error but conduct an independent review of his ultimate

findings and conclusions of law."    Commonwealth v. Jimenez, 438

Mass. 213, 218 (2002).    In his decision on the motion to

suppress, the judge credited the testimony of Officer Melissa

Dion of the Ludlow Police Department, who testified at the

motion to suppress hearing.    The judge made findings of fact and

adopted Officer Dion's version of events as true.     His findings,

supplemented by the testimony that he credited, Commonwealth v.

Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818

(2008), include the following:

    At approximately 12:11 A.M. Officer Dion and another

officer, Andrew Roxo, responded to a report of a car crash, and

found the defendant unconscious in his vehicle, which had

apparently crashed into a utility pole.    Witnesses from the

sheriff's department were present, and they extracted the

defendant from his car.    The defendant regained limited ability

to respond to questions in a yes/no fashion and admitted that he
                                                                      3


had had something to drink.     Officer Dion observed a number of

empty alcohol containers in the defendant's car and the odor of

alcohol on the defendant.     When asked, the defendant responded

that he did not have any preexisting medical conditions.

    Officers Dion and Roxo called for an ambulance, which

arrived and took the defendant to Baystate Medical Center in

Springfield, where it arrived at approximately 1:00 A.M.

Officer Dion went with the defendant in the ambulance and stayed

with him at the hospital.     The defendant was placed under arrest

for operating while under the influence of alcohol, and Miranda

warnings were administered to him by Officer Dion in the

ambulance.   In the emergency room, Miranda warnings were

readministered by Officer Dion and the defendant said that he

had been drinking and was guilty.

    Officer Dion's initial attempt to obtain the defendant's

consent to a blood draw was delayed when a nurse indicated that

the defendant was not medically cleared to consent.     At

approximately 3:30 A.M., when the defendant apparently had been

medically cleared for a conversation about obtaining a blood

draw, and his demeanor had materially changed from his initial

one-word answers, Officer Dion read to the defendant at the

hospital a "statutory rights and consent form."     That form

states, as relevant here:
                                                                      4


    "I am requesting that you submit to a chemical test to
    determine your blood alcohol concentration. . . . If you
    refuse this test, your license or right to operate in
    Massachusetts shall be suspended for at least a period of
    up to 180 days or up to life for such refusal. The
    suspension if you take the test and fail it is 30 days.
    . . . If you decide to take the test and complete it, you
    will have the right to a comparison blood test within a
    reasonable period of time at your own expense. The results
    of this comparison test can be used to restore your license
    or right to operate at a court hearing within 10 days.
    . . . It is not your option which type of chemical test to
    take. Refusal or failure to consent to take the test that
    I am requesting is a violation of the Implied Consent Law,
    and will result in your right to operate a motor vehicle
    being suspended as I have stated to you."

    The form contains an additional "notice to persons holding

a commercial driver's license" that referred to a "required test

of blood, breath, or urine," but there is no evidence that this

notice was applicable to the defendant.     The part of the form

that was applicable to the defendant does not specify that the

"chemical test" will be on blood, as opposed to breath, urine,

or anything else, nor does it state that blood will be drawn.

The judge found that the defendant stated that he understood the

form, that he signed the form, and that "[b]lood was taken from

the defendant after the form was signed."     In denying the motion

to suppress, the judge concluded that "[a]t no time did the

defendant object to the drawing of blood or otherwise attempt to

frustrate the procedure."

    The defendant filed a motion for reconsideration, which was

denied, and from which he also appeals.     He subsequently entered
                                                                    5


a conditional plea, admitting to facts sufficient for a finding

of guilty to operating while under the influence of alcohol,

G. L. c. 90, § 24 (1) (a) (1), but the parties and the motion

judge agreed that the defendant's right to appeal from the

denial of his motion to suppress and his motion for

reconsideration would be preserved.     In Commonwealth v. Gomez,

480 Mass. 240, 252 (2018), the Supreme Judicial Court approved

this procedure, and consequently we turn to the merits of the

appeal.1

     Discussion.     The defendant argues that he did not consent

to the blood draw.    The Commonwealth argues that he did.   They

disagree about the standard that we should use to evaluate the

question.    Some background about the law is in order.

     A.    Blood draws and consent.   It is well settled that one

has a reasonable expectation of privacy in one's blood such that

the piercing of one's skin with a needle to draw blood, and the

testing of that blood, constitute a full-blown seizure and

search for purposes of the Fourth Amendment to the United States

Constitution.   Commonwealth v. Angivoni, 383 Mass. 30, 32


     1 Although it "does not object to the appeal on these
grounds," the Commonwealth argues that the procedures set out in
Gomez were not followed because the motion to suppress was not a
"dispositive motion." Gomez, however, grants the plea judge
discretion to allow a guilty plea conditioned on the ability to
appeal from the denial of a nondispositive motion, and provides
that we may hear the ensuing appeal with respect to that denial.
Gomez, 480 Mass. at 252.
                                                                     6


(1981).   As a matter of constitutional law, neither can be

undertaken by government officials without probable cause and a

warrant, absent some exception to the warrant requirement.     See

Missouri v. McNeely, 569 U.S. 141, 148 (2013), quoting Winston

v. Lee, 470 U.S. 753, 760 (1985) ("Such an invasion of bodily

integrity implicates an individual's 'most personal and deep-

rooted expectations of privacy'").   In the absence of probable

cause and a warrant (or exigent circumstances excusing the

failure to obtain that warrant), police thus may not draw blood

without consent.2   An agreement to have one's blood drawn and

tested amounts to a waiver of one's constitutional right.

Consequently, the constitutional standard for consent applies.

Such consent must be "voluntary" under the Federal Fourth

Amendment standard.   This is not the "intentional relinquishment

of a 'known' right" standard.   See Schneckloth v. Bustamonte,

412 U.S. 218, 238 (1973).   Rather "[t]he Commonwealth must show

consent unfettered by coercion, express or implied, and also

something more than mere acquiescence to a claim of lawful

authority" (quotations and citation omitted).   Commonwealth v.

Ortiz, 478 Mass. 820, 823 (2018).




     2 The search incident to an arrest exception cannot justify
a warrantless blood draw. See Birchfield v. North Dakota, 136
S. Ct. 2160, 2185 (2016).
                                                                    7


    By contrast, where there is an exigency, the drawing and

testing of blood requires probable cause, but the requirement of

a warrant is excused.   If there is probable cause to believe an

individual has been driving while under the influence of

intoxicating liquor, and there are exigent circumstances

excusing the warrant requirement, the Federal Constitution

imposes no requirement of consent before blood may be drawn from

an individual, even if the police have no warrant.

    Nonetheless, we have held that, in this Commonwealth, a

requirement of consent is imposed by statute even when, because

there is probable cause and exigent circumstances, one is not

imposed by the Federal Constitution.   As we held in Commonwealth

v. Davidson, 27 Mass. App. Ct. 846, 848-849 (1989), where a

blood draw by police is for these reasons permitted under the

Fourth Amendment, "[t]he right of refusal [a defendant] does

have stems from the statute, which requires that a test not be

conducted without his consent."   In this regard, and perhaps

surprisingly, as we described in Davidson, a State law right to

refuse is provided by what is colloquially called our "implied

consent" law.   Like other States, the Commonwealth has such a

law, and its text states:

    "Whoever operates a motor vehicle upon any way or in any
    place to which the public has right to access, or upon any
    way or in any place to which the public has access as
    invitees or licensees, shall be deemed to have consented to
    submit to a chemical test or analysis of his breath or
                                                                    8


    blood in the event that he is arrested for operating a
    motor vehicle while under the influence of intoxicating
    liquor; provided, however, that no such person shall be
    deemed to have consented to a blood test unless such person
    has been brought for treatment to a medical facility
    licensed under the provisions of [G. L. c. 111, § 51]
    . . . ."

G. L. c. 90, § 24 (1) (f) (1).

    But, despite purporting to state in the quoted passage that

one is "deemed to have consented" simply by operating a motor

vehicle in the manner described, it is clear that the statute in

fact requires actual consent before the police may undertake a

blood (or breath) test.   That is because it goes on to say,

   "If the person arrested refuses to submit to such test or
   analysis, after having been informed that his license or
   permit to operate motor vehicles or right to operate motor
   vehicles in the commonwealth shall be suspended for a
   period of at least 180 days and up to a lifetime loss, for
   such refusal, no such test or analysis shall be made and
   he shall have his license or right to operate suspended in
   accordance with this paragraph for a period of 180 days
   . . . ."

(Longer periods of revocation are provided for those who have

certain previous convictions.)   In Davidson, however, we held

that the test for consent under the statute is easier to meet

than the test for consent under the Federal Constitution.      We

said, "Typically, where a right is conferred by statute and

is not a fundamental constitutional right, we apply

traditional indicia of waiver of rights. . . .   Traditional

indicia include waiver by inaction, by express agreement, by

untimely motion, and by failure to object. . . .   It is
                                                                   9


apparent from context that G. L. c. 90, § 24(1)(e) and (f),

do not contemplate voluntary consent in the constitutional

sense" (quotation and citations omitted).     Davidson, 27 Mass.

App. Ct. at 848-849.

    B.     When are there exigent circumstances?   Where, as in

this case, there is probable cause to believe an individual

has been operating while under the influence of intoxicating

liquor but there is no warrant authorizing a blood draw,

which test for consent applies thus depends upon whether

there are exigent circumstances excusing the need for a

warrant.   In Schmerber v. California, 384 U.S. 757 (1966), a

case in which there was probable cause to believe that an

individual involved in a one-car accident had been operating

the vehicle while under the influence of intoxicating liquor,

the United States Supreme Court held that no warrant was

necessary because of exigent circumstances.    See id. at 770

("Search warrants are ordinarily required for searches of

dwellings, and, absent an emergency, no less could be

required where intrusions into the human body are

concerned").   The Supreme Court concluded that the police

officer in that case "might reasonably have believed that he

was confronted with an emergency, in which the delay

necessary to obtain a warrant, under the circumstances,

threatened 'the destruction of evidence,' Preston v. United
                                                                    10


States, [376 U.S. 364, 367 (1964)].    We are told that the

percentage of alcohol in the blood begins to diminish shortly

after drinking stops, as the body functions to eliminate it

from the system.    Particularly in a case such as this, where

time had to be taken to bring the accused to a hospital and

to investigate the scene of the accident, there was no time

to seek out a magistrate and secure a warrant."    Id. at 770-

771.

       Although Schmerber involved an accident and the need to

investigate, in 1989 in Davidson we construed Schmerber broadly,

holding that "[w]here there is probable cause to believe that a

defendant has been operating a vehicle while under the influence

of intoxicating liquor, the defendant has no constitutional

right to refuse a blood test or a breathalyzer test"    (emphasis

added).   Davidson, 27 Mass. App. Ct. at 848.   Although not

stated explicitly, this holding necessarily reflects our

conclusion that Schmerber stands for the proposition that there

is always exigency when there is probable cause to believe an

individual has been operating while under the influence of

intoxicating liquor, presumably because of the predictable

dissipation of blood alcohol.

       Under Davidson, then, whenever there was probable cause to

arrest a driver for operating while under the influence of

intoxicating liquor, because there was always an exigent
                                                                  11


circumstance, even in the absence of a warrant, the Federal

Constitution was held to play no role in preventing even a

compelled blood draw.   Rather, since Davidson was decided,

whenever there has been probable cause to believe an individual

was operating while under the influence of intoxicating liquor,

we have, employing only the restrictions imposed by our implied

consent law, applied the "traditional indicia" standard to

determine the validity of consent to a blood test.   Utilizing

that standard, we have held that "valid consent only requires

'verbal agreement to undergo, lack of objection to, or

cooperation in the performance of, the blood testing.'"

Commonwealth v. Thompson, 87 Mass. App. Ct. 572, 575 (2015),

quoting Commonwealth v. Carson, 72 Mass. App. Ct. 368, 370

(2008).

    Recent United States Supreme Court decisions, however, make

clear that the holding in Davidson on the scope of the exigent

circumstances exception is no longer good law.   Six years ago,

in Missouri v. McNeely, 569 U.S. 141 (2013), the Supreme Court

clarified that the scope of the exigent circumstances exception

to the warrant requirement articulated in Schmerber is not as

broad as we concluded it was in Davidson.   Specifically, in

McNeely, the Court held that the exigent circumstances that

justify dispensing with a warrant are not invariably present

when there is probable cause in drunk driving cases, even though
                                                                    12


blood alcohol will predictably dissipate.     In McNeely, the Court

held that unless, upon an examination of the "totality of the

circumstances," the government has demonstrated that "the

officer might reasonably have believed that he was confronted

with an emergency, in which the delay necessary to obtain a

warrant, under the circumstances, threatened the destruction of

evidence" a warrant is required before blood may be drawn from

an individual with respect to whom there is probable cause to

believe he or she has been operating while under the influence

of intoxicating liquor (quotation and citation omitted).

McNeely, supra at 150.   The Court reaffirmed Schmerber, in which

a defendant had been driving a car that had collided with a

tree.   See Schmerber, 384 U.S. at 758 n.2.   The Court, however,

rejected the contention that "whenever an officer has probable

cause to believe an individual has been driving under the

influence of alcohol, exigent circumstances will necessarily

exist because [blood alcohol content] evidence is inherently

evanescent."   McNeely, supra at 151.   The Court held that, "[i]n

those drunk-driving investigations where police officers can

reasonably obtain a warrant before a blood sample can be drawn

without significantly undermining the efficacy of the search,

the Fourth Amendment mandates that they do so."    Id. at 152.

The Court held that this was so notwithstanding the fact that a

police officer must typically transport a drunk-driving suspect
                                                                   13


to a medical facility and obtain the assistance of someone with

appropriate medical training before conducting a blood test, see

Schmerber, supra at 771-772, such that "some delay between the

time of the arrest or accident and the time of the test is

inevitable regardless of whether police officers are required to

obtain a warrant."   McNeely, supra at 153.   The Court

specifically stated, "Consider, for example, a situation in

which the warrant process will not significantly increase the

delay before the blood test is conducted because an officer can

take steps to secure a warrant while the suspect is being

transported to a medical facility by another officer.      In such a

circumstance, there would be no plausible justification for an

exception to the warrant requirement."   Id. at 153-154.     The

Court also noted that many jurisdictions now permit police

officers to obtain warrants telephonically, or electronically,

reducing the amount of time necessary to obtain a warrant.      See

id. at 154-155.

    To be sure, after McNeely was decided, in 2015 we handed

down Thompson, 87 Mass. App. Ct. 572, in which, in reliance on

Davidson, we applied the statutory traditional-indicia test for

consent to a blood draw by someone with respect to whom there

was probable cause without discussing the presence or absence or

exigent circumstances.   But this court in Thompson did not cite

McNeely; nor was it cited in the parties' briefs, which did not
                                                                  14


indicate that there had been any change in the law since

Davidson.   In any event, if there was any question after McNeely

whether, in the absence of exigent circumstances, we could still

apply only the weaker traditional-indicia test for consent in

cases in which there was probable cause that the individual had

been driving drunk, it was resolved by the Supreme Court's post-

Thompson decision in Birchfield v. North Dakota, 136 S. Ct.

2160, 2186 (2016), in which the Court stated that, in such

cases, in the absence of a warrant or exigent circumstances, the

defendant's actual consent to a blood test must be "voluntary"

under the Federal Fourth Amendment standard.   The Court remanded

for determination whether the consent given to the blood tests

was "voluntary" under the constitutional standard.   Id.   See

Commonwealth v. Myers, 640 Pa. 653, 681 (2017) ("The Birchfield

Court's application of its holding further supports the

conclusion that, despite the existence of an implied consent

provision, an individual must give actual, voluntary consent at

the time that testing is requested").   See also State v. Vargas,

2017-NMSC-029, ¶ 22, 404 P.3d 416, 422 (holding that, after

Birchfield, "[i]mplied consent laws can no longer provide that a

driver impliedly consents to a blood draw"); State v. Romano,

369 N.C. 678, 691 (2017) (interpreting Birchfield, and holding

that "[t]reating [a statute according to which unconscious

drivers are deemed to have consented to a blood draw] as an
                                                                  15


irrevocable rule of implied consent does not comport with the

consent exception to the warrant requirement because such

treatment does not require an analysis of the voluntariness of

consent based on the totality of the circumstances").

    Finally, the Commonwealth argues that, even if the

constitutional standard applies, it is satisfied by the "implied

consent" described in the implied consent statute, such that

even in the absence of a warrant or exigent circumstances, only

the statutory requirement of consent measured by "traditional

indicia" stands in the way of a compelled blood test of any

person driving on any of the roadways defined in the statute.

This bold argument, however, founders on an even more recent

Supreme Court decision, Mitchell v. Wisconsin, 139 S. Ct. 2525

(2019), in which a majority of the Supreme Court made clear that

implied consent statutes, despite their monicker, have never

been held to give constitutionally adequate consent to a search.

See id. at 2533 (plurality opinion of Alito, J., joined by

Roberts, C.J., and Breyer and Kavanaugh, JJ.) ("[O]ur decisions

have not rested on the idea that these laws do what their

popular name might seem to suggest -- that is, create actual

consent to all the searches they authorize"); id. at 2545

(Sotomayor, J., joined by Ginsburg and Kagan, JJ., dissenting)

("The plurality does not rely on the consent exception here.
                                                                   16


See [id.] at 2532.   With that sliver of the plurality's

reasoning I agree").

    To summarize, the consequences of McNeely, Birchfield, and

Mitchell for our assessment of the standards for evaluating

consent to a blood draw by a defendant with respect to whom

there is probable cause to believe he or she was operating a

motor vehicle while under the influence of intoxicating liquor

are as follows:

    1.   A blood draw requires a warrant or exigent

circumstances excusing the failure to obtain a warrant.    There

are not necessarily exigent circumstances when there is probable

cause to believe someone has been operating while under the

influence, despite the predictable dissipation of blood alcohol.

When there is neither a warrant nor exigent circumstances, blood

may be drawn only with consent that meets the Federal

constitutional standard of actual, voluntary consent under the

Fourth Amendment, not the lower standard of consent required

under our statute.

    2.   When there are exigent circumstances so that the Fourth

Amendment poses no bar to a compelled blood test, a right to

refuse is provided by statute, and blood may be drawn only with

the individual's consent as measured under the "traditional

indicia" articulated in Davidson.
                                                                   17


     C.   Application of the law to the facts.   In this case, the

Commonwealth had probable cause to believe the defendant was

operating while under the influence of intoxicating liquor, but

lacked a warrant.    The Commonwealth has not argued that there

were exigent circumstances, and at oral argument it explicitly

disclaimed any reliance on the exigent circumstances exception.

It has therefore waived any such claim, and we will proceed on

the basis that there were no exigent circumstances.

Commonwealth v. Louraine, 390 Mass. 28, 38 n.13 (1983).3   Under

the Federal Constitution, then, the defendant's blood could be

drawn only with his consent, and the question before us is

whether the Commonwealth has met its burden of demonstrating

that the defendant gave actual, voluntary consent under the

Federal constitutional standard.    See Birchfield, 136 S. Ct. at

2186.    The defendant argues that because the statutory rights

and consent form language about a "chemical test" is ambiguous,

his agreement to what was requested by the form is insufficient

to meet the Commonwealth's burden of proving voluntary consent

under this standard.

     The motion judge did not analyze the case in this way

because he concluded, incorrectly, that the defendant had no




     3 Consequently we need not and do not reach the question
whether the Commonwealth could have established an exigency on
the facts of this case.
                                                                    18


constitutional right to refuse a blood test, and therefore

examined only the less stringent "traditional indicia" of

consent set forth in Davidson, under which the defendant's

failure to object has greater significance than it does under

the constitutional test.   The judge did not address the

defendant's argument that the statutory consent form was too

ambiguous for his signature to manifest consent.    Instead, the

judge found and emphasized the fact that "[a]t no time did the

defendant object to the drawing of his blood, exhibit any

reluctance to submit to the draw, or otherwise indicate his lack

of consent."

    However, under the constitutional test, "[t]he isolated

fact that a person does not object to an entry does not

establish consent."   Commonwealth v. Brown, 32 Mass. App. Ct.

649, 652 (1992).   Contrast Thompson, 87 Mass. App. Ct. at 574

(reversing the allowance of a motion to suppress because the

judge incorrectly applied the constitutional standard instead of

the "traditional indicia" standard).

    The consent form did not specify that the defendant was

consenting to a blood test.   It stated a "chemical test."   The

closest it came was stating, "It is not your option which type

of chemical test to take."    But without some enumeration of the

types that may be given, that is inadequate to inform the

defendant that he is being asked to allow a blood test, a
                                                                   19


"physical intrusion beneath [his] skin and into his veins to

obtain a sample of his blood for use as evidence in a criminal

investigation.   Such an invasion of bodily integrity implicates

an individual's 'most personal and deep-rooted expectations of

privacy.'"   McNeely, 569 U.S. at 148, quoting Winston, 470 U.S.

at 760.   Indeed, at one point the form provides, "If you decide

to take the test and complete it, you will have a comparison

blood test within a reasonable period of time at your own

expense," which might be understood to be contrasting a "blood

test" with the kind of "chemical test" for which the form was

seeking consent.

    Because it is ambiguous what the defendant was agreeing to

by signing the form, the evidence cannot suffice to sustain the

Commonwealth's burden of demonstrating actual consent to a blood

test.   Cf. Commonwealth v. Rogers, 444 Mass. 234, 239 (2005)

("[T]he ambiguity of both the officers' and [the occupant's]

words and actions makes it difficult to discern whether there

was actual consent in this case").   To the extent the

defendant's conduct in not objecting at the time of the blood

draw is relevant, the temporal proximity between the signature

and the blood draw is not clear from the evidence, nor is there

any evidence the nurse who took the blood indicated in any way

that it was for the police, rather than for medical purposes.
                                                            20


On this record, it cannot make up for the weakness in the

Commonwealth's evidence of consent to the blood test.

    The order denying the motion to suppress is reversed.

                                   So ordered.
