On January 7, 2010 the Appeals court in an unpublished opinion of COMMONWEALTH vs. WILLIAM E MALONE. 09-P-416, The court stated “The defendant moved to suppress the results of a blood test that was conducted at a hospital following a motor vehicle accident. In support of the motion, the defendant claimed that the blood test was not conducted for purposes of medical treatment and that it was conducted without his consent. As a result, he claimed that the test result was inadmissible under G. L. c. 233, § 79.
On appeal, the Commonwealth claims that the defendant failed to establish that his blood was drawn as a result of State action, and even if the statutory requirements of G. L. c. 233, § 79, are not met, the blood test result is still admissible by other competent means. We agree.
‘Evidence discovered and seized by private parties is admissible without regard to the methods used, unless State officials have instigated or participated in the search.’ Commonwealth v. Leone, 386 Mass. 329, 333 (1982). See Commonwealth v. Arruda, 73 Mass. App. Ct. 901, 904 (2008) (‘The State action requirement of art. 12 is well established. It is governmental, not private, compulsion that is prohibited’). The defendant has the burden of proving the existence of State action, i.e., whether a search in the constitutional sense took place. Commonwealth v. Pina, 406 Mass. 540, 544 (1990). ‘Then, but only then, the government has the burden to show that its search was reasonable and therefore lawful.’ Ibid.
Here, the defendant offered no evidence that the police instigated or participated in his blood being drawn. Instead, the evidence centered on whether the defendant consented to his blood being taken.”
“the record fails to establish any State action, and, thus, no search in the constitutional sense took place. See Commonwealth v. Netto, 438 Mass. 686, 697 (2003) (if record is unclear, the defendant, not the Commonwealth, has failed to meet his burden of proof, as defendant ‘must show that a ‘search’ in the constitutional sense’ has occurred). Because the defendant failed to establish that the police requested or instigated the taking of his blood, there is no reason to apply the exclusionary rule even if the blood was taken without his consent. See Commonwealth v. Brandwein, 435 Mass. 623, 631-632 (2002); Commonwealth v. Russo, 30 Mass. App. Ct. 923, 925 (1991); Commonwealth v. St. Hilaire, 43 Mass. App. Ct. 743, 749-750 (1997). [FN1] See also Stone v. Powell, 428 U.S. 465, 484, 486 (1976) (purpose of exclusionary rule is to ‘deter future unlawful police conduct,’ not to ‘redress the injury to the privacy of the victim of the search or seizure’).
Finally, that the blood test was lawfully conducted does not answer the question whether the result is admissible. The judge found that the defendant’s blood test ‘was not connected to medical treatment or pursuant to hospital protocol,’ and suppressed the results because the requirements of G. L. c. 233, § 79, were not met. However, there was no testimony on this subject, and, thus, no evidentiary basis for this finding. In any event, because the Commonwealth was the party offering the hospital records, it bore the burden to prove the evidence met the statutory requirements. Commonwealth v. Dunne, 394 Mass. 10, 16 (1985). We, therefore, construe the judge’s finding to mean that the Commonwealth did not meet its burden. But that does not end the matter. Contrary to the judge’s suppression order, the Commonwealth’s failure to meet the statutory requirements means only that the documented hospital records themselves cannot be admitted under the G. L. c. 233, § 79, hearsay exception. See Mass. G. Evid. § 803(6)(B) (2008-2009). Indeed, because the evidence was lawfully obtained, the results may be admissible through the use of a live witness, such as the nurse or the person who administered the test. Commonwealth v. Sheldon, 423 Mass. 373, 377 (1996). See Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 327 (2009).
Although its an unpublished opinion, A summary decision pursuant to rule 1:28, (which it is) issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. That being said, it provides a good illustration on conducting a followup for an OUI arrest that results in hospitalization.
Attorney Ronald. A. Sellon