Blood Draw in Massachusetts Drunk Driving Cases Must Be Done With Consent

Drunk-Driving-Accident-Attorney-300x200-300x200-1When investigating a person for suspected of operating under the influence of alcohol, Massachusetts Drunk Driving Laws require that a test of the suspect’s breath or blood to determine blood alcohol content must be done with the person’s consent in order for the results to be admissible at a defendant’s trial.

Pursuant to statute, however, or the “implied consent” statute, because persons drive on public roadways, every driver gives “consent” in Massachusetts to submit to a breath alcohol content (“BAC”) test if arrested for suspected operating under the influence of alcohol. If the persons arrested refuses to submit to a test, however, the statute provides that “no such test or analysis shall be made.” In other words, the “implied consent” law, which applies when a driver users public roadways, may be withdrawn. Without actual consent, therefore, no testing may be conducted. By law, if the driver refuses, the person is subject to losing their license for at least 180 days (depending on whether the refusal is the person’s first or if the person had previously refused and/or been convicted of suspected drunk driving in the past).

In circumstances where a person arrested for suspect DUI did not give actual consent, a blood draw for testing the person’s alcohol content would be inadmissible at trial. Even if the government had obtained a warrant for the taking of the blood draw as an “alternative” to consent, this would likewise be impermissible and inadmissible at trial.

This is so because the statute that provides for the blood draw specifically prohibits blood draws for the purpose of analyzing blood alcohol content without the consent of the person. Without consent, therefore it is irrelevant who directs the blood draw, the police and/or even the the court by way of a warrant.

The consent requirements of blood alcohol tests in OUI/DUI cases means that, in the Commonwealth of Massachusetts, a requirement of consent is imposed by statute where there is no probable cause and “exigent circumstances.” Although it might be constitutional to obtain a blog sample from an unwilling person with a warrant where there isprobable cause, an involuntary blood draw is prohibited by statute if it is sought for the purpose of a DUI/OUI investigation.

There are more practical reasons for this reasoning as well. The Massachusetts legislature, by way of statute, requires actual consent for blood draws also as a safety measure. Blood draws involve certain potential risks to the person, including pain, bruising, and the potential for fainting, nerve damage and hematoma. Of even greater concern, is the risk if the person suffers with hemophilia, diabetes, or some other medical condition that requires the use of anticoagulants and to whom a blood draw may potentially endanger the person.

Aside from the patient, there are also risks to the officers and/or health care workers drawing the blood. What if the police officers have to restrain the person while the blood is being drawn? Or there might be exposure to blood borne pathogens, such as HIV, hepatitis, and/or other viruses. Such risks, of course unknown when given a person whose medical history is unknown, are very real when a person does not consent to their blood being drawn.

The taking of a blood draw, therefore, without the consent and/or against the will of a person is inadmissible at any trial.

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