On January 5, 2022, the Massachusetts Supreme Court came down with a decision in the case
of Commonwealth v. Moreau, that requires the police to get your consent if they want to test your
blood in a drunk driving case. Read on to learn more about this case and whether it applies to your
situation and how it may help you beat your next drunk driving case.
Won’t Apply to Everyone’s Case
This case doesn’t apply to everyone’s situation. It’s likely only going to apply if you were involved
in an accident, where you were taken to the hospital and the police suspected you were driving under
the influence of alcohol or drugs (i.e., OUI or DUI). Then at the hospital, as part of normal medical
treatment, the hospital personnel took a sample of your blood.
In those cases, the police will get a search warrant for your blood and give it to the hospital.
The police will get the vials of blood that the hospital took from you. The police then take that blood
back to their own lab and perform a blood test on it. The blood test is to determine whether
there is alcohol or drugs in your blood and in what concentration. They would then use those results to
prosecute you for DUI.
Now These Results Can’t be Used Against You Without Your Consent
Commonwealth v. Moreau says the police can’t do this anymore. Even with a search
warrant, the police would still need your consent to take that blood from the hospital and bring it to
their lab to have it tested. The police can still take the blood and do the test, but now the results will be
inadmissible against you in Court.
The Supreme Judicial Court based the Moreau decision on the specific language in the drunk
driving law which requires your consent. In that law, it essentially says they need your consent to
perform a blood or breath test, as well as, to analyze your blood or breath for alcohol or drugs. So, while
this case can be a great help in a OUI/DUI alcohol or OUI/DUI drugs case, it won’t work for any other
For instance, if you are taken to the hospital after being involved in some
other type of incident (think assault and battery, rape, murder, etc.) where the police suspect you of
committing a crime and they want to get and test the blood samples taken by the hospital for DNA or
something else, they may be able to do so. The police would still need a search warrant or your consent
to do this, but they would be able to get the blood, analyze it and use those results in the prosecution
for a crime which does not involve DUI. The Moreau case is specifically limited to OUI/DUI cases.
Does This Mean the Hospital Blood Test Can Never Be Used Against Me in a DUI Case?
Unfortunately, the answer to this question is “No.” This case won’t help in the situation where
the hospital takes your blood as part of the normal medical procedure and the hospital does their own
test on it. The results of the hospital’s test may be able to be used against you in the DUI case. This still
requires the police and prosecutor to follow certain rules to make this happen, but it is often done in
these types of cases.
This New Case Could Mean the Police Will Seek Your Consent at the Hospital
The other thing this case could bring up is that more and more you may see police
going to the hospital after an accident to try to get you to sign a piece of paper giving or otherwise give
your consent to give them your blood and have it tested.
Never Consent to This or Any Other Type of Test or Search
Our advice in that situation would be do not give that consent. You should never consent to any type of search, field sobriety test, breath test, or any type of blood test. If you follow this simple rule you are going to limit the evidence that can be used against you in court. It can really help you defend your drunk driving case.