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14-P-191                                                Appeals Court

                COMMONWEALTH     vs.   LLOYD W. THOMPSON.


                               No. 14-P-191.

           Plymouth.     February 4, 2015. - June 26, 2015.

              Present:   Green, Grainger, & Massing, JJ.


Motor Vehicle, Operating under the influence. Vessel, Alcoholic
     liquors. Evidence, Blood alcohol test. Constitutional
     Law, Blood test. Due Process of Law, Blood alcohol test.
     Consent. Search and Seizure, Consent. Practice, Criminal,
     Motion to suppress.



     Indictment found and returned in the Superior Court
Department on December 19, 2011.

     A pretrial motion to suppress evidence was heard by
Cornelius J. Moriarty, II, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Barbara A. Lenk, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by her to the Appeals Court.


     Gail M. McKenna, Assistant District Attorney, for the
Commonwealth.
     James J. Cipoletta for the defendant.
                                                                     2


     GRAINGER, J.    The defendant was indicted for operating a

vessel under the influence of alcohol pursuant to G. L. c. 90B,

§ 8A.    The Commonwealth appeals from a Superior Court judge's

order allowing the defendant's motion to suppress the results of

a blood test administered after his arrest.

     Background.    We recite the facts relevant to the issue on

appeal as found by the judge which, in any event, are

undisputed.   The defendant was operating his boat in Hull harbor

when he struck a moored sailboat.    His passenger was ejected

from the boat, suffered severe blunt force neck trauma and later

died as a result of her injuries.    The defendant complained of a

leg injury and was transported by ambulance to the South Shore

hospital after being placed under arrest by police who had

arrived on the scene responding to a report of the accident.1      At

the conclusion of the defendant's medical treatment, the

arresting officer asked the defendant for consent to give a

blood sample for chemical testing.    The officer testified that

he read the defendant his rights "word-for-word" from the

consent form created for a violation of operating a motor

vehicle while intoxicated, G. L. c. 90, § 24. Several hours

later the defendant signed a separate consent form required by

     1
       At the scene the arresting officer could smell an odor of
alcohol on the defendant's breath, noticed that his eyes were
bloodshot, that he was unsteady on his feet and appeared
lethargic.
                                                                     3


the hospital and the nurse took the defendant's blood sample.2

Before trial the defendant moved to suppress the results of the

blood sample, alleging that he did not give effective consent.

The judge allowed the motion and the Commonwealth filed an

interlocutory appeal.     Mass.R.Crim.P. 15, as appearing in 422

Mass. 1501 (1996).

     Discussion.     We accept the motion judge's findings of fact

absent clear error but review the conclusions of law

independently.   Commonwealth v. Mitchell, 468 Mass. 417, 421

(2014).   The motion judge allowed the defendant's motion to

suppress because he determined that the defendant's consent was

coerced when the officer mistakenly advised him of greater than

actual penalties for refusing to submit to the blood test.     The

officer read the defendant the statutory rights form for

operating a motor vehicle while under the influence of alcohol

(motor vehicle OUI).     That form indicated that if the defendant

refused to provide the blood sample, his license would be

suspended for a minimum of 180 days, with a maximum possibility

of life suspension,3 depending on the number of the defendant's


     2
       The defendant signed the law enforcement consent form at
1:17 A.M. and the consent form required by the hospital at 3:54
A.M. The nurse thereafter took the blood sample. At no time did
the defendant withdraw his consent.
     3
       The statute itself specifies that the length of suspension
depends on the defendant's number of previous convictions for
operating a motor vehicle while impaired. The form provides only
                                                                    4


previous convictions, if any, for operating a motor vehicle

while impaired. The form used by the officer was correct insofar

as it referred only to the motor vehicle OUI statute which

contains increased periods of suspension for previous OUI

convictions, whether related to a motor vehicle or a vessel.

See G. L. c. 90, § 24(1)(f)(1), as amended by St. 2003, c. 28,

§ 5.

       However the actual, and only, penalty for refusing a blood

test under the statute that prohibits operating a vessel while

under the influence of alcohol (boating OUI) is a license

suspension for 120 days, with no possibility of any greater

suspension regardless of the existence or number of prior motor

vehicle or boating OUI convictions. G. L. c. 90B,

§ 8(a)(2)(a)(A), as amended by St. 1994, ch. 318, § 11.     Thus,

unlike the motor vehicle OUI statute, the boating OUI statute

does not contain any reciprocal provision of enhanced penalties

for refusing a chemical test when a suspect has previous

convictions for motor vehicle or boating OUI.    Compare G. L.

c. 90B, § 8(a)(2)(a)(A), with G. L. c. 90, § 24(1)(f)(1).     In

sum there is no possibility under the statute that an operator's

driver's license can be suspended for life upon a refusal to

submit to a chemical test when arrested for a boating OUI.


the range of 180 days to life in summary fashion, without
stating how the precise length of suspension is determined.
                                                                       5


         We therefore agree with the motion judge that the

inaccurate and harsh warning provided to the defendant was

defective.    However, the judge evaluated this defect in the

context of the constitutional standard for evaluating consent to

a search which requires that the consent be "unfettered by

coercion, express or implied."     Commonwealth v. Walker, 370

Mass. 548, 555 (1976).4    He thereupon determined that the "threat

of a lifetime revocation of one's driver's license, a draconian

consequence, for refusal to submit to a blood test is, in my

view, unquestionably impliedly coercive" and suppressed the

results of the blood test.     However, the constitutional standard

does not apply in this case.

     The statute prohibiting boating while impaired, like the

motor vehicle OUI statute, contains an "implied consent"

provision, that permits a blood test at a medical facility

administered at the direction of a law enforcement officer.      See

G. L. c. 90B, § 8(a)(2)(a); G. L. c. 90, § 24(1)(f)(1).      This

provision means that any person arrested for a violation of the

boating OUI statute does not have a constitutional right to

refuse to submit to a blood test.     Commonwealth v. Davidson, 27


     4
       Commonwealth v. Walker, citing both Schneckloth v.
Bustamente, 412 U.S. 218, 222 (1973), and Commonwealth v.
Mendes, 361 Mass 507, 512 (1972), draws no distinction between
the State and Federal constitutional standards for consent.
Walker, supra at 554-555.
                                                                    6


Mass. App. Ct. 846, 848 (1989).5   Instead, the basis on which we

evaluate consent to undergo a chemical test for OUI is conferred

by statute, ibid., and valid consent only requires "verbal

agreement to undergo, lack of objection to, or cooperation in

the performance of, the blood testing."   Commonwealth v. Carson,

72 Mass. App. Ct. 368, 370 (2008).   "The ultimate question is

whether, in the light of all the circumstances, a man of

reasonable caution would be warranted in the belief that some

limitation was intended by the consent giver."   Commonwealth v.

Hinds, 437 Mass. 54, 59 (2002), quoting from Commonwealth v.

Cantalupo, 380 Mass. 173, 178 (1980).

     The motion judge credited the testimony of both the officer

at the hospital and the nurse who drew the defendant's blood,

finding that while the defendant was visibly upset and sobbing

at times, he was coherent and cooperative.6   While there is ample

evidence from the testimony of both the officer and the nurse

regarding the defendant's state of mind, level of cooperation,

     5
       Commonwealth v. Davidson discusses the implied consent
provision in the motor vehicle statute, which, but for the
penalty for refusal, is identical to the implied consent
provision in the boating OUI statute. Davidson, supra.
     6
       Among the undisputed facts is that when the officer asked
the defendant for consent, the defendant said "whatever you
want." The nurse testified without contradiction that the
defendant was not suffering from any neurological trauma, that
he again said "whatever you need to do is fine" when she asked
for his consent and that he willingly held his arm out for her
so she could draw his blood.
                                                                  7


and willingness to submit to the blood test under the criteria

enunciated in Davidson, supra, and Carson, supra, the motion

judge did not make any findings of fact regarding the criteria

under the correct, non-constitutional, standard.   Accordingly,

we vacate the allowance of the defendant's motion to suppress

and remand to the Superior Court for further proceedings

consistent with this opinion.

                                   So ordered.
