May 15—SALEM — A North Shore lawmaker and former police chief has filed a bill to amend language in the state's drunken driving law, after the state's highest court recently ruled that police — even with a court warrant — cannot collect blood samples from suspected drunk drivers if the driver does not want to submit to a test.
In December, the Supreme Judicial Court, in a 4-2 decision, said it believes lawmakers intended to create additional privacy protections for accused drunken drivers in Massachusetts when it left in place language that bars breath or blood alcohol tests taken "at the direction of police" when a driver has refused a test, even though the U.S. Supreme Court has found them constitutional and even when an officer gets a warrant from a judge.
"I don't think this is what was intended by the Legislature," said Rep. Paul Tucker, the Salem Democrat and former police chief, who filed a bill that would add language specifically authorizing a test in cases where a judge or magistrate has obtained a warrant, regardless of a defendant's consent.
Tucker said he believes the dissent, written by Justice David Lowy, who was joined by Justice Scott Kafker, reflects a "common sense" reading of the state's drunken driving statute.
Tucker initially filed House 3737 in February; on Monday five other representatives signed on as co-sponsors.
The ruling by the SJC came last fall in the case of a Worcester County man named Charles Bohigian, who was charged with drunken driving causing serious bodily injury and other offenses following a 2014 crash on a ramp to I-290 in Shrewsbury.
Another driver had crashed into a guardrail, then got out of her car. Moments later, Bohigian came upon the crash scene and collided with the woman's SUV. The SUV struck the woman and sent her airborne and into the path of Bohigian's sedan. She was dragged more than 200 feet, and suffered massive, life-altering injuries. At the scene, Bohigian told a trooper that someone else had struck the woman, someone who had left the scene after warning Bohigian to "keep his mouth shut."
Bohigian, whose head struck the windshield of his car in the crash, was also taken to a hospital. Bohigian, who had been arrested for drunken driving three prior times and convicted once, refused to submit to a blood alcohol test.
A state trooper went to an on-call judge and obtained a warrant, Bohigian continued to refuse, until he was held down and a nurse took the sample.
A chemist later testified that the result was consistent with Bohigian having been two to three times over the legal limit at the time of the crash.
But it was that image of troopers forcibly holding Bohigian down on a hospital bed that appeared to resonate, both with the defense bar and later with the SJC.
A friend of the court brief filed by the state public defender agency and the Massachusetts Association of Criminal Defense Attorneys opened with a dystopian, present-tense depiction of the events at the hospital: "Mr. Bohigian lies on a hospital bed. He has suffered a concussion and brain injury. State troopers stand around him, telling him that they have the authority to draw his blood. They ask him to agree to the blood draw. Mr. Bohigian refuses ... The troopers huddle and confer, then gather around Mr. Bohigian. They hold him down by the arms and legs. They handcuff his wrists to the hospital bed. They order the nurse to extract the blood ... The vial fills with Mr. Bohigian's blood," wrote lawyer Jin-Ho King.
The majority, in a decision written by now-Chief Justice Kimberly Budd, cited the safety of both a defendant and police and health care workers as part of its rationale.
"Requiring actual consent for blood draws is also a safety measure," Budd wrote for the court. "According to the National Center for Biotechnology Information, blood draws involve a variety of risks to the patient," including pain and bruising at the site of the puncture, and potentially more serious complications like nerve damage, and also pose risks to others, such as contracting blood-borne illnesses.
"It is well within the Legislature's authority to provide additional privacy protections over and above those granted by the Federal Constitution and the Massachusetts Declaration of Rights," Budd wrote.
The majority concluded that the Legislature has made multiple revisions to the drunken driving statute — including revisions in response to past court rulings — but did not address the warrant issue. They concluded that it meant that lawmakers intended for drunken driving suspects to have the right to refuse a test even when officers obtained a warrant. Bohigian's conviction was vacated.
But Lowy, in his dissenting opinion, said chemical testing is the best evidence — both for a defendant whose impairment could have been caused by something other than alcohol, and for protecting public safety.
"Collection and use of blood alcohol content evidence is the statute's principal engine of enforcement," Lowy wrote. He said the Legislature wrote the law in a way that creates an efficient procedure for warrantless testing, consistent with its goal of promoting the use of chemical tests — and not to create a means for defendants to avoid being tested under any circumstance.
"This is especially true where prohibiting that alternative procedure," the warrant, "would allow repeat offenders to shield themselves from conviction at a disturbing rate by declining to submit to forensic testing," Lowy wrote.
"Why not give jurors the best evidence?" said Tucker. "Unfortunately, every day we see lives lost and lives altered by drunken driving. To me this is a common-sense fix."
Courts reporter Julie Manganis can be reached at 978-338-2521, firstname.lastname@example.org or on Twitter at @SNJulieManganis.