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Prosecutors can't use results of man's blood-alcohol test in OUI case because he didn't give his consent for the test to be run, court rules

The Supreme Judicial Court ruled today that state law requires police to get an OUI suspect's permission to have his blood tested before they can hand over the results to prosecutors.

State law and a previous court ruling already required police to obtain a person's consent just to have his blood drawn. Today's ruling covers blood that was drawn for medical reasons at the hospital that police then obtained through a search warrant, specifically, some blood doctors had drawn from Eric J. Moreau for medical tests after he was admitted for treatment after he crashed his pickup into tree on Sept. 29, 2020 in Gardner.

Moreau, who, according to police was unsteady on his feet, with slurred speech, glassy eyes and the stench of alcohol following the crash, was taken to a local hospital for care. There, according to the court's summary of the case:

Police gave to hospital personnel a "preservation of evidence letter," seeking the preservation of any blood that might be drawn during medical treatment.

Police then obtained and executed a search warrant for the defendant's blood. The blood was transported to and analyzed by the crime lab for [blood alcohol content]. Police never requested or obtained the defendant's consent to test his blood for BAC.

Moreau's attorney objected to the use of the results of the blood test as evidence because Moreau had not consented to having his blood tested for alcohol. A Superior Court judge rejected his request, agreeing with prosecutors that police did not obtain the sample for the test from Moreau directly, but rather from an independent third party - the hospital - and so his blood was not taken at the direction of the police and no consent was required.

In its ruling today, however, the state's highest court concluded that is a distinction that makes no legal difference, that Moreau should have been asked for his consent even if the initial blood draw from which police took a sample was not done at their request. The court said the state OUI/blood test law is actually pretty clear, specifically saying that blood-alcohol evidence:

as shown by chemical test or analysis of [the defendant's] blood . . . shall be admissible . . . provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the defendant.

And so:

Thus, by its plain language, where a "chemical test or analysis . . . was made by or at the direction of a police officer," the defendant's consent is required for the resulting BAC evidence to be admissible, regardless of whether the preceding blood draw was done by or at the direction of a police officer. To hold that the consent provision is only triggered where the defendant's blood is first drawn by or at the direction of police would contradict the plain language of the statute.

The court concluded:

The plain language of the statute, the absence of any record of legislative intent to contradict that plain language, and our decision in Bohigian control here. 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 BAC evidence to be admissible in a prosecution under [the state law].

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PDF icon Complete ruling90.15 KB


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It has been pretty standard for a long time that the DA subpoenas blood records for these cases. I'm not sure why the police got involved here.

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Raise the penalties for driving recklessly - captures all sorts of situations, including all pharmaceuticals, testosterone poisoning, etc.

We don't need OUI when there is a video camera in every cruiser.

Hit and run? Automatic suspensions and even jail time.

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Wasn't this a Law and Order epiaode?

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There should be more cops who know the laws.
Reading that OUI blood test law cited here seems pretty straightforward to me, and I don't have any training in our laws like Police do.... Or should.

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And wasn't the intent of the legislature to have warrants signed by a court not be admissible in the same court. A District Court judge in Gardner also thought the warrant was sufficient.

We also don't know if the DA had a subpoena for the blood?

From the law book:

Option 1: Safest course of action - preserve blood & get search warrant. Altlough
hospital-tested blood is generally admissible, the best practice is for police to seize and test it.

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That's what courts are for they tell you. If you limit their Qualified Immunity they will quickly learn the law and the Constitution that they took an oath to uphold.

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