If you’ve been stopped for a Massachusetts OUI, you might already know you have the right to refuse a breathalyzer. But what about a blood draw? Can police take your blood? Can they force it? And does it matter whether you were in an accident?
These questions have actually been the subject of some significant Massachusetts Supreme Judicial Court decisions in the last few years, and the law here is more protective of defendants than most people realize — with some important exceptions.
The General Rule: Consent Is Required
Under Massachusetts’ implied consent statute, G.L. c. 90, § 24, police need your consent to draw your blood in a standard OUI case. Not just a warrant, but your actual, voluntary consent.
This was made crystal clear in Commonwealth v. Bohigian (2020), where the SJC held that Massachusetts law creates a blanket prohibition against blood draws without consent in OUI prosecutions. Even a valid search warrant isn’t enough to override a refusal in a standard OUI case.
The Court explained that while the Constitution sets a floor for individual rights, the Massachusetts legislature went further — and specifically chose to require consent as a matter of state law.
So if you refuse a blood draw in a standard OUI stop, they cannot take your blood. And just like refusing a breathalyzer, refusing a blood test does result in a license suspension. Your refusal also cannot be used as evidence of guilt at trial.
What About If There Was an Accident — Serious Injury or Death?
This is where things get more complicated and where a lot of the recent litigation has been focused.
In April 2024, the SJC decided Commonwealth v. Zucchino, which addressed whether the consent requirement applies when someone is charged with OUI Serious Bodily Injury or OUI manslaughter. The Court held that the consent provision in G. L. c. 90, § 24 (1) (e) applies specifically to standard OUI charges and does not extend to the more serious aggravated offenses.
In plain terms: if there’s been a crash and you’re charged with OUI causing serious injury or death, the lack of consent does not automatically make BAC evidence inadmissible under § 24 (1) (e). However, this does not mean police can compel a blood draw after a refusal. Under G. L. c. 90, § 24 (1) (f) (1), as interpreted in later cases, a defendant’s refusal still bars the test from being performed at all, even with a warrant.
The Court reasoned that the Legislature is within its authority to treat simple OUI and aggravated OUI differently when it comes to evidentiary rules. Whether that’s the right policy call is a separate conversation, but that’s where the law stands right now.
What About Hospital Blood Draws?
This is another area that has generated significant SJC attention. In Commonwealth v. Moreau (2022), the SJC held that even when your blood is drawn by hospital personnel during medical treatment (not by police), the Commonwealth still needs to prove you consented to the testing of that blood for alcohol content if the testing is done by or at the direction of police in a standard OUI case.
So if you were in an accident, taken to the hospital, and your blood was drawn for medical treatment, that doesn’t automatically mean the results can come in against you. The prosecution still has to prove consent to the testing of that blood for it to be admissible.
Why Does This Matter?
Blood evidence is frequently the centerpiece of an OUI prosecution. If that evidence was obtained in a way that doesn’t comply with Massachusetts law, it may be suppressible — meaning the prosecution can’t use it at trial. In cases where the blood test is the key piece of evidence, suppression can be decisive.
The circumstances of how your blood was obtained, what you were told, what you agreed to, and what you were charged with all affect whether that evidence holds up.
If you’re facing an OUI charge in Massachusetts where a blood draw was involved, those details are worth examining closely with an attorney who can ensure your rights are best protected.
If you’re looking for an experienced OUI attorney in Boston, MA, the Law Office of Matthew W. Peterson has successfully handled numerous motor vehicle offense cases. Call 617-391-0060 today to discuss your situation.
Disclaimer: This information is for educational purposes and is not legal advice. If you need legal advice, contact a qualified attorney.
