Opinion
No. 15–P–1275.
12-05-2016
COMMONWEALTH v. William E. McNEIL, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, William E. McNeil, Jr., was charged with operating under the influence of alcohol (OUI), G.L. c. 90, § 24(1)(a)(1) ; negligent operation of a motor vehicle, G.L. c. 90, § 24(2)(a) ; and marked lanes violation, G.L. c. 89, § 4A. A District Court judge allowed the defendant's motion to suppress blood tests. This is the Commonwealth's interlocutory appeal from the allowance of the defendant's motion to suppress. We affirm.
Background. On June 23, 2014, the defendant was the operator of a vehicle involved in a single car accident. Trooper Patterson, of the State police, responded to the accident scene and observed the defendant standing outside of his heavily damaged car. The defendant had a visible head injury and looked disoriented. The trooper detected an odor of alcohol on the defendant's person and breath. The defendant was transported by ambulance to Massachusetts General Hospital. The trooper followed the ambulance to the hospital and spoke with the nursing staff. Trooper Patterson left the hospital after learning that the defendant was expected to remain at the hospital for three or four hours. The medical record included blood tests that reflected the defendant's blood alcohol level.
At the hearing on his motion to suppress, the defendant claimed that his blood was taken for testing at the direction of the police and without his consent. The Commonwealth argued that the blood tests should be admissible as they were part of the defendant's medical treatment and included in his medical record. The trooper and the defendant testified at the motion hearing. The trooper provided testimony on direct examination that he asked the medical personnel whether they would be conducting blood tests and when they informed him that they intended to do so, he indicated that the test would most likely be subpoenaed. However, on cross-examination the trooper acknowledged that at an earlier hearing, he may have testified that he asked the medical personnel to draw the defendant's blood. The defendant testified that he never consented to the tests. The judge entered the following endorsement on the motion: "After hearing, the motion to suppress is allowed. There is no evidence that the [defendant] consented to these tests or that [the] tests were a necessary part of the medical treatment for the [defendant]. All MGH records are excluded."
Discussion. 1. Standard of review. We accept the motion judge's findings of fact absent clear error but review the conclusions of law independently. Commonwealth v. Mitchell, 468 Mass. 417, 421 (2014). "The clear error standard is a very limited form of review," wherein we defer to the findings of the motion judge who heard the testimony and observed the witnesses. Commonwealth v. Carr, 458 Mass. 295, 298–299 (2010) (quotation omitted).
2. Admissibility of blood tests. Our statutes distinguish between blood tests conducted at the direction of police and those conducted by medical personnel for medical purposes. In cases where there is probable cause to believe that a defendant has been operating a motor vehicle under the influence of alcohol, G.L. c. 90, § 24(1)(e) and (f), provides a procedure for police to request an operator to submit to a blood test. The defendant has no constitutional right to refuse a blood test. Commonwealth v. Carson, 72 Mass.App.Ct. 368, 370 (2008). His consent is needed, however, in order for the test results to be admissible as evidence. G.L. c. 90, § 24(1)(e), (f). In addition, properly certified hospital records related to relevant issues of treatment and medical history may be admitted in accordance with G.L. c. 233, § 79. In Commonwealth v. McLaughlin, 79 Mass.App.Ct. 670, 675 (2011), this court held that in an OUI case, the Commonwealth may introduce under § 79, "[o]bjectively determinable facts resulting from medical tests and procedures conducted for diagnostic and treatment purposes and appearing in hospital records." "Blood alcohol tests are admissible so long as their purpose was medical diagnosis or treatment." Ibid.
The Commonwealth urges this court to find that the motion judge erred in deciding: (1) that there was no evidence that the medical tests were a necessary part of the medical treatment for the defendant; and (2) that there was no evidence of the defendant's consent to a blood test. While the Commonwealth argues that we should look beyond the judge's findings to the medical records to make this determination, we decline to do so. We are mindful of "our long-standing jurisprudence [which] makes plain, in no event is it proper for an appellate court to engage in what amounts to independent fact finding in order to reach a conclusion of law that is contrary to that of a motion judge who has seen and heard the witnesses, and made determinations regarding the weight and credibility of their testimony." Commonwealth v. Jones–Pannell, 472 Mass. 429, 438 (2015).
Here, although the motion judge made spare findings, we detect no clear error and determine that his findings are sufficient to sustain his conclusions of law. Even though the judge failed to make a finding whether the trooper requested the blood tests, the judge's finding that the defendant did not consent to the tests, makes them inadmissible pursuant to G.L. c. 90, § 24(1)(e ) and (f ). The statute requires a suspect's consent, and whether the defendant consented is a question of fact. The evidence here did not require the judge, as matter of law, to find that there was a meaningful consent.
Section 79 of G.L. c. 233 provides a judge the discretion to admit in evidence certified hospital records so long as the records relate to the treatment and medical history of the defendant. Commonwealth v. Gogan, 389 Mass. 255, 263 (1983). However, such records are not admissible where, as here, a judge finds no evidence that the tests related to the defendant's medical treatment. "The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses.... In such a situation, where subsidiary findings of fact have been made by the trial judge, ... we do not substitute our judgment for his, absent clear error." Commonwealth v. Moon, 380 Mass. 751, 756 (1980). We find no error, much less clear error, in the judge's findings of fact.
3. Conclusion. The order of the District Court allowing the motion to suppress is affirmed.
So ordered.