THE POLICE CANNOT test a person’s blood to determine blood alcohol content without that person’s consent, even if the person authorized the blood draw itself, the Supreme Judicial Court ruled Friday. 

It is well-established law that the police cannot order a blood test without a person’s consent, in order to protect the safety of both the subject and medical personnel. But the SJC was presented with a unique drunk driving case in which the driver, Eric Moreau, was taken to the hospital after a collision and agreed to a blood test for medical purposes. The Gardner police then obtained a warrant for his blood and tested it to determine his blood alcohol content. Based on the results, Moreau was charged with operating under the influence and negligent driving.  

Moreau’s attorneys argued that the test results cannot be used as evidence because Moreau never agreed to the test. The SJC, in an 18-page decision written by Justice Elspeth Cypher, sided with Moreau and ruled that a subject must consent not only to the blood draw but to having the blood tested for alcohol content.  

Cypher wrote in the decision that the plain reading of the statute says the defendant’s consent is required, regardless of whether the blood draw was done at the direction of a police officer. “The statute contains no exception to the consent requirement where the blood was first drawn without police involvement,” Cypher wrote.  

She said while the issue of safety is only implicated in the blood draw itself, there are also privacy concerns, and there is no evidence that safety was the only thing lawmakers were concerned about in drafting the law. “Where a ‘chemical test or analysis’ of the defendant’s blood is ‘made by or at the direction of a police officer,’ including where the blood is first withdrawn independently by a third party, the defendant’s consent is required for the resulting [blood alcohol content] evidence to be admissible in a prosecution,” the court concluded. 

Cypher wrote that when the Legislature criminalized operating under the influence, it considered the possibility of a lack of consent for blood alcohol testing by writing a law that automatically suspends for six months the license of any driver who refuses to take a test. While a refusal might make OUI prosecutions more challenging, the policy is a matter of balancing competing interests, and Cypher wrote, “It is beyond the power of this court to undermine that balancing by rewriting the statute as the Commonwealth proposes.” 

In this case, Cypher noted that the police could have arrested Moreau and given him a breath test at the scene, and his license would have been suspended had he refused. So the police had options other than later getting a warrant for his blood. “While it is not our role to pass judgment on the Legislature’s policy decisions, it appears that the statutory scheme provides for the protection of the public from dangerous offenders. All that is required is that the police follow the procedures set forth by the Legislature,” Cypher wrote.