Hey, there! Log in / Register

Police can't pin somebody down to have his blood drawn after an OUI crash, even with a warrant, court rules

The Supreme Judicial Court today ordered a new trial for a man convicted on OUI charges for a 2014 crash because state troopers handcuffed him and restrained him so a nurse could withdraw two blood samples that were then used against him at his trial.

Even though the troopers obtained a warrant from a judge to draw the blood, a 4-2 majority on the state's highest court ruled that state law is "flatly and unambiguously" clear: A suspect in an OUI crash case has the right to refuse to have his blood drawn to have it analyzed for alcohol content, and a judge can't overrule that. Suspects who refuse blood - or breath - tests can have their licenses suspended for six months.

In 2017, Charles Bohigian was convicted in Westborough District Court on charges of OUI causing serious bodily injury, witness intimidation and negligent operation for a 2014 crash in which police say he slammed into both a car whose driver had spun out on a highway on ramp and that car's driver, who was standing on the side of the road and who was then dragged some 200 feet by Bohigian's car. Bohigian was sentenced to 2 1/2 years in jail, with six months to serve.

Evidence against him included a blood-alcohol content level of .135 - in the hospital - derived from two vials of blood a nurse drew after he refused to be tested and troopers got a warrant from a judge.

Everything that happened after he refused to let his blood drawn was against the law, the court concluded:

Here, it is clear that the blood draw was performed without the defendant's actual consent (and, in fact, against his will). The defendant repeatedly objected to the blood draw, and in the end, several officers pinned him down and handcuffed him, while a nurse extracted his blood. The blood draw thus was impermissible under §24 (1) (f) (1),and consequently, the BAC test results were admitted improperly at trial.

The court said the legislature has amended state OUI law seven times since 1994 and yet has kept this provision intact - and noted the provision is also a safety issue for hospital workers, police and suspects themselves due to the risk of injury and disease transmission involved in drawing blood from an unwilling patient.

But was the error enough to lead to Bohigian's conviction, which would require overturning the verdict? The court concluded it was and it did.

The Commonwealth highlighted the blood draw and results during the trial and, in closing arguments, relied exclusively on the blood draw to prove that the defendant was under the influence. The BAC results introduced by the Commonwealth provided the strongest proof that the defendant was intoxicated at the time of the accident. Proof of intoxication was central to proving the defendant's guilt of both OUI causing serious bodily injury (§24L) and negligent operation (§24 [2] [a]). See Commonwealth v. Zagwyn, 482 Mass. 1020, 1022 (2019) ("evidence of an operator's intoxication is relevant to a charge of negligent operation"). We therefore cannot say that the tainted evidence was harmless beyond a reasonable doubt.

The court sent the case back to district court for a new trial, but without the blood-alcohol numbers as evidence.

Justices David Lowy and Scott Kafker dissented, saying the law refers specifically to blood samples taken "at the direction of a police officer" and that that was not the case here, because Bohigian's blood was drawn at the direction of the judge who issued a warrant allowing it:

Properly construed, those provisions do not require consent for blood drawn pursuant to a search warrant issued by a neutral and detached magistrate, upon a finding of probable cause. The magistrate's decision to issue a warrant bears no relation to a suspected offender's consent, nor does it implicate the regulatory apparatus of implied consent or its effects on evidentiary admissibility.

Briefs and docket for the case.

Free tagging: 
PDF icon Complete ruling452.25 KB


Like the job UHub is doing? Consider a contribution. Thanks!


Example # umptybillion

If refusing a test means only a 6 month suspension, of course repeat offenders will game that.

Refusing a test should mean permanent suspension if there are prior convictions. Reckless driving resulting in such extreme mayhem should also carry jail sentences and suspensions such that drunks can't game that, too.

It shouldn't take frustrated cops with handcuffs brutalizing a suspect - it should take laws that have meaningful consequences for repeat offenders and drivers who kill and maim.

Voting closed 0

For Police to know the law?

Voting closed 0

for that matter.

Voting closed 0

just not been paying attention for the last few years, or...

Voting closed 2

Our State "police"? They're too busy billing for fake overtime. Never have I distrusted the police as much as our "Staties"

Voting closed 0

Please address your complaints to Mr. DeLeo, who has been kept firmly entrenched at the public trough.

Voting closed 0

and I go along to amuse her.

Voting closed 0

And the reason the legislature hasn’t fixed this is?

Voting closed 0