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OUI Blood Draws and Implied Consent

Posted by Joseph Bernard | Aug 08, 2017 | 0 Comments

In many OUI cases involving accidents, citizens have been taken to the hospital where their blood was improperly taken at the request of a police officer. Because it often not possible for an officer to perform field sobriety tests or request a breath test in a case involving an accident, an officer may follow a citizen to the hospital to obtain a blood sample. The blood sample will then be analyzed to determine the citizen's blood alcohol content which may be used as evidence of impairment.

A blood draw is “an invasion of bodily integrity implicates an individual's ‘most personal and deep-rooted expectations of privacy'" which implicates a citizen's Fourth Amendment rights. Recently, two decisions have been issued by the Supreme Court of the United States, Birchfield v. North Dakota and Missouri v. McNeely, that emphasize that a citizen has a reasonable expectation of privacy in their blood. The Court also emphasized that absent consent or exigent circumstances, an officer is required to obtain a warrant before obtaining a blood sample from a citizen.

The Court in Birchfield also discussed Implied Consent Laws. Massachusetts has an Implied Consent Law which states that anyone who operates a motor vehicle in Massachusetts “shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor…” This means that by driving a motor vehicle in Massachusetts, you are stating that if you are arrested for OUI, you consent to a breath or blood test to determine your blood alcohol concentration.

However, the Court in Birchfield explained that while a citizen may give implied consent to a blood draw, actual consent is still required to obtain the sample. In other words, an officer cannot simply obtain a blood sample from a citizen based solely on Massachusetts' Implied Consent Law. Rather, the officer must explain to the citizen that they are requesting a sample of their blood and the citizen must then indicate to the officer that they actually consent to a blood draw. The Court further stated that a citizen may withdraw their implied consent and refuse to provide a blood sample. If a citizen refuses to provide a blood sample, an officer may then obtain a warrant.

In Massachusetts, officers have routinely failed to obtain blood samples properly. In order to give valid consent to a warrantless blood draw, a citizen must give knowing and voluntary consent. This means that a citizen must have knowledge and understanding of exactly what it is that they are consenting to -- a blood draw. Typically an officer will read a Statutory Rights and Consent form to a citizen to obtain a blood sample. This form is most commonly used to obtain consent from a citizen to submit to a breath test, and does not explain in any way that an officer is requesting a blood sample. It only generally states that the officer is “requesting that you submit to a chemical test to determine your blood alcohol concentration.” But what does this mean? The average person does not know what a chemical test is or that there are multiple kinds of chemical tests to determine a blood alcohol concentration, let alone which test the officer is requesting. Therefore, citizen cannot give a knowing and voluntary consent based solely on this form. Yet officers routinely rely on this form alone to obtain a blood sample.

To learn more about information about whether the blood draw in your matter was properly obtained, contact Attorney Joseph D. Bernard at 413-731-9995.

About the Author

Joseph Bernard

Joseph Bernard has been practicing statewide in Massachusetts for over 20 years. He predominately handles OUI defense along with other motor vehicle charges.


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