Warrant-Based Searches Do Not Override Statutory Consent Requirement for OUI Blood Draws

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by Emma Quinn-Judge

Case Focus

A licensed driver who uses the public roadways in Massachusetts has agreed—implicitly—to submit to blood alcohol testing (BAC) or a breathalyzer test if arrested for operating under the influence of alcohol (OUI). If the driver refuses to take a BAC test, the driver’s license is suspended for 180 days or longer. While there are consequences to declining testing, the Commonwealth’s implied consent statute is unequivocal: Where a driver declines a blood test, “no such test . . . shall be made.”

Drawing a blood sample is a search and seizure for constitutional purposes, because individuals have an expectation of privacy in their blood. However, both the Supreme Court of the United States and the Supreme Judicial Court (SJC) have long held that law enforcement may draw blood without consent where there is either a search warrant supported by probable cause, or exigent circumstances justifying a warrantless search. Schmerber v. California, 384 U.S. 757, 767 (1966); Commonwealth v. Angivoni, 383 Mass. 30, 32 (1981).

In Commonwealth v. Bohigian, 486 Mass. 209 (2020), the SJC considered whether, in an OUI prosecution, a BAC test performed without consent, but with a warrant, was admissible. In a 4-2 decision, the SJC concluded that the implied consent statute “flatly and unambiguously prohibits blood draws without consent,” and as such, BAC evidence obtained by a warrant is inadmissible. Id. at 214.

Following an accident in which he seriously injured another driver, Charles Bohigian refused to consent to a blood draw. A State Trooper obtained a warrant to draw Bohigian’s blood. After being presented with the warrant, Bohigian refused again to have his blood drawn. Troopers ultimately held down his arms and legs while a nurse drew his blood. A chemical analysis of his blood revealed that Bohigian’s BAC was more than twice the legal limit. See G. L. c. 90, § 24 (1)(a)(1). Bohigian was charged with and convicted of, among other things, OUI.

General Laws c. 90, § 24(1)(f)(1) provides that an individual operating on a public road “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.” If, however, “the person arrested refuses to submit to such test or analysis [and is informed of the consequences of such refusal], no such test or analysis shall be made.” G.L. c. 90, § 24(1)(e)(1) makes such tests admissible in OUI prosecutions, “provided . . . that if such test was made by or at the direction of a police officer, it was made with the consent of the defendant.” Thus, “[t]ogether the two subsections provide that, if an arrestee consents to a BAC test, the results are presumptively admissible at trial for a charge of OUI under § 24(1)(a).” Bohigian, 486 Mass. at 212.

Prior appellate decisions suggested that the statutory framework provided a right of refusal that was independent of, and in addition to, any constitutional requirements. In Commonwealth v. Davidson, 27 Mass. App. Ct. 846, 848 (1989), the Appeals Court noted that “[w]here there is probable cause to believe that a defendant has been operating a vehicle while under the influence of intoxicating liquor, the defendant has no constitutional right to refuse a blood test or breathalyzer test,” but rather, the “right of refusal he does have stems from the statute, which requires that a test not be conducted with his consent.” In Commonwealth v. Dennis, 96 Mass. App. Ct. 528, 532 (2019), the Appeals Court reiterated that “a requirement of consent is imposed by statute even when, because there is probable cause and exigent circumstances, one is not imposed by the Federal Constitution.”

Davidson and Dennis, however, both concerned how to evaluate consent. Neither case involved a situation in which police officers had obtained a warrant for a blood draw after an unequivocal refusal. Bohigian squarely presented that question for the first time and, following the reasoning and statutory interpretation in these earlier cases, the SJC held that the “plain statutory language . . . creates a blanket prohibition against blood draws without consent in the context of OUI prosecutions.” Bohigian, 486 Mass. at 213. While an individual’s blood may be drawn pursuant to a warrant in other contexts and for other purposes, the right of refusal in OUI cases is absolute.

The SJC’s decision treated constitutional rights as a floor or baseline for individual rights. “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.” Bohigian, 486 Mass. at 216. Viewing the statute within this analytical framework, the Court examined the plain language, giving weight to Davidson and Dennis, which articulated a longstanding interpretation of the statutory language. Indeed, the SJC noted that the legislature had repeatedly amended the relevant statutory provisions since Davidson was decided in 1989, without ever changing the consent requirements. The Court also pointed out that the Massachusetts statute was adopted just one year after the Supreme Court decided Schmerber v. California, 384 U.S. 757 (1966), implying that the legislative choice to require consent was made knowingly in the aftermath of a landmark Supreme Court decision establishing that blood draws are permissible with a warrant or under exigent circumstances. Moreover, the Court noted that other states with similar statutory schemes have interpreted them to categorically bar blood draws without consent. Finally, the SJC emphasized that there are valid public policy reasons to strike the balance the legislature struck, including the interest in avoiding violent confrontation and the risk of injury to patients and health care providers.

Justice Lowy, joined by Justice Kafker, dissented on the ground that the decision of a “neutral and detached magistrate” to issue a warrant upon a finding of probable cause, “bears no relation to the suspected offender’s consent, nor does it implicate the regulatory apparatus of implied consent or its effects on evidentiary admissibility.” Bohigian, 486 Mass. at 221. In other words, the dissent viewed constitutional provisions regarding unlawful search and seizure not as the minimum level of protection for individual rights, but rather as an exception to the rights set forth by statute. Rejecting the majority’s statutory interpretation, the dissent focused on the statute’s overriding public safety purpose: “[F]or every hemophiliac, diabetic, or person on anticoagulant medication who is arrested for OUI, or for every medical worker who is injured by a sharp needle when blood is drawn . . . immeasurably more danger results from permitting repeat OUI offenders to get behind the wheel.” Bohigian, 486 Mass. at 235.

In cases where a defendant unequivocally refuses to take a breathalyzer or BAC test, the implied consent statute establishes an unambiguous standard: “[N]o such test or analysis shall be made.” G.L. c. 90 § 24(f)(1). The civil penalties for refusal are not insignificant: They include immediate license suspension for at least six months per test (and for substantially longer periods for those with a record of prior OUI convictions), with no right to reinstatement or a hardship permit during the period of suspension, as well as vehicle impoundment and related costs. The statute provides that the minimum periods of license suspension apply to each refusal, with suspensions to run concurrently, not consecutively “as to any additional suspension periods arising from the same incident, and as to each other.” Id.

Bohigian has simplified the legal questions for a driver who refuses a blood alcohol test. Because not all individuals refuse testing as clearly as Mr. Bohigian did, whether a driver—especially a highly-intoxicated or seriously-injured driver—has legally consented to a blood test is likely to remain contested in many cases. The answer to that question will still require a court to analyze whether the driver consented voluntarily, within the meaning of the Fourth Amendment. And where the Fourth Amendment is satisfied, a court will need to examine whether an individual has met the lower statutory standard for consent discussed in Dennis and Davidson (i.e., the “traditional indicia of waiver of rights”). While Bohigian may be the final word on refusal, it is unlikely to be the last word on consent.

Emma Quinn-Judge is a partner at Zalkind Duncan & Bernstein LLP, where she focuses on criminal defense, employment litigation, and appeals.


SJC Addresses the Enforceability of Settlements Entered Without Insurers’ Consent

by Austin Moody

Case Analysis

The Massachusetts Supreme Judicial Court (SJC) recently issued an important decision addressing three issues that can arise in the fairly common scenario in which an insurer recognizes its duty to defend its insured, does so under a reservation of rights, and then brings a separate action seeking a declaratory judgment that it owes no duty to indemnify its insureds.

In Commerce Ins. Co. v. Szafarowicz, 483 Mass. 247 (2019) the court addressed 1) whether the lower court properly denied the insurer’s motion to stay the underlying action until the question of its duty to indemnify had been determined in a declaratory judgment action, 2) whether the lower court properly denied the insurer’s motion to deposit its policy limit with the court – which would prevent the accrual of postjudgment interest, and 3) whether the insurer was bound by the settlement/assignment agreement the insured reached in the underlying matter.

The underlying case involved a wrongful death suit brought by the estate of David M. Szafarowicz.  On August 3, 2013, shortly after a verbal altercation at a bar, Mr. Szafarowicz was struck and killed by a vehicle operated by Matthew Padovano.  The vehicle was owned by Matthew’s father, Stephen Padovano, who had purchased an automobile insurance policy from Commerce Insurance Company (Commerce). Id. at 249 – 50.

Commerce agreed to defend the Padovanos in the underlying case.  In addition, Commerce agreed to pay the $20,000 in compulsory insurance offered by the policy.  However, it issued a reservation of rights regarding $480,000 in optional insurance based on the fact that the policy did not cover intentional acts and there was substantial evidence that Matthew Padovano struck the decedent intentionally.  Commerce subsequently brought a declaratory judgment action seeking to establish that it had no duty to indemnify the Padovanos. Id. at 250 – 51.

Less than three weeks before the trial of the underlying action, Commerce filed a motion to intervene in the case based on its claim that both plaintiff and defendants were presenting Mr. Szafarowicz’s death as arising out of negligence rather than an intentional act – ostensibly to maximize the available insurance coverage.  The judge denied the motion but held that Commerce would be allowed to challenge the fairness of the underlying litigation in the future.  Id. at 252 -53.  After the denial of its motion to intervene, Commerce moved to stay the wrongful death trial until after the question of insurance coverage was resolved in the declaratory judgment action.  Again, Commerce’s motion was denied. Id. at 253.

Shortly before trial, the wrongful death action was settled.  Matthew Padovano agreed that he was grossly negligent, the estate agreed not to enforce any judgment beyond the amounts payable by the insurance policy, and the Padovanos agreed to assign all rights under the Policy to the estate.  Commence objected to the settlement, but again, its motion was denied.  Judgment ultimately entered in the amount of $7,669,254.41 – $5,467,510 in damages plus prejudgment interest in the amount of $2,201,744.41. Id. at 254.

Commerce appealed, challenging the denial of its motions to stay the wrongful death action so that the declaratory judgment action could be adjudicated first, and the overruling of its objections to the settlement.  In addition, it sought to deposit the policy limits plus accrued postjudgment interest with the court.  Commerce’s objective was to limit its liability for future postjudgment interest under a policy provision stating “[w]e will not pay interest that accrues after we have offered to pay up to the limits you selected.”  Commerce’s motion to deposit the funds was denied and Commerce filed an interlocutory appeal.  On its own motion, the SJC transferred both appeals to its court. Id. at 254 – 56.

During the pendency of the appeal, Commerce prevailed in its declaratory judgment action in which the trial court held that the death was caused by Michael Padovano’s intentional conduct. The SJC therefore found that Commerce had no duty to contribute to the judgment above the $20,000 in compulsory insurance it had already paid.  However, under the terms of the policy, Commerce still had an obligation to pay postjudgment interest on the entire judgment

In its decision, the SJC addressed three issues.  First, the SJC found that the lower court did not abuse its discretion by denying Commerce’s motion to stay.  The Court found that Commerce did not suffer prejudice when the judge refused to stay the wrongful death action pending a resolution of the coverage dispute.  Commerce was protected from prejudice based on the fact that it was subsequently permitted to challenge any underlying findings of negligence in the wrongful death action and was not bound by that court’s findings.  In fact, Commerce had successfully done so and prevailed in the coverage litigation.  Additionally, the Court found that it would be unfair to the claimant to delay the wrongful death action pending the resolution of the coverage case. Id. at 257 -58.

Second, the SJC found that the court did not abuse its discretion by denying Commerce’s motion to deposit the policy limits and accrued interest. Commerce was not permitted to prevent the accrual of postjudgment interest by conditionally depositing the policy limits plus accrued postjudgment interest with the court.  The Court held that in order to prevent the accrual of postjudgment interest, Commerce would have to agree to pay its limits without conditions or qualifications.  However, Commerce was actively seeking a declaratory judgment that it did not owe indemnity due to the intentional acts exclusion and, if successful, it planned to seek the return of the policy limits.  Therefore, Commerce could not prevent the accrual of postjudgment interest. Id. at 259.

Finally, the Court found that Commerce was only bound by the underlying settlement/assignment agreements to the extent that they were found to be reasonable by the trial court.  The SJC ruled that reasonableness should be considered based upon the “totality of the circumstances” including the facts bearing on the liability and damage aspects of plaintiff’s claim, as well as the risks of going to trial.  Id. at 265.  Because no reasonableness hearing was conducted by the trial court in this case, the SJC remanded for a hearing on the reasonableness of the settlement/assignment agreements. Id. at 267.

The SJC declined to consider an alternative inquiry into whether the settlement was collusive, because it opined that all settlement agreements of this nature – in which only the insurer is at risk of paying the plaintiff’s damages – can be characterized as somewhat collusive. It held that any concern an insurer may have that the plaintiff and the insured defendant have colluded to improperly inflate a settlement or stipulated judgment may be addressed as part of a reasonableness hearing.  Id. at 266 – 67.  Presumably, any settlement that was reached as the result of improper collusion would be determined to be unreasonable.  The Court also declined to join a minority of states that in all circumstances, “because of the risk of collusion, declare such settlement/assignment agreements to be unenforceable where an insurer has honored its duty to defend.”  Id. at 264.

The SJC noted that “the procedure we direct on remand is different from what we expect to happen in the future where an insurer successfully challenges a settlement/assignment agreement before judgment.” Id. at 267. In that event, the trial court “may decline to enter judgement in that amount and invite the parties to renegotiate “an agreement that might prove reasonable in amount”.  Id. at 267 – 68.

Ultimately, the SJC’s opinion provides helpful guidance as to how an insurer offering an insured a defense under a reservation of rights in Massachusetts should proceed.  It recognizes that the insurer will not always be bound by the findings of fact in an underlying case and preserves an insurer’s ability to challenge unreasonable settlements.

Austin Moody is an associate with White and Williams LLP in Boston, where he represents insurance carriers in complex coverage disputes.