Appeals Court (October 31, 2008)

A defendant's refusal to allow medical personnel to take blood for treatment purposes, even though the defendant was in police custody, does not violate the defendant's 5th amendment right against self incrimination because there is no state action and therefore, the refusal is admissible against the defendant at trial.

The defendant was taken to the hospital after causing a fatal collision. While in police custody, not only did the defendant refuse the officer's request to take a blood test, but the defendant refused requests by medical personnel to take blood for treatment purposes. The defendant filed a pretrial motion to exclude any reference to the defendant's refusal to consent to blood alcohol testing. After a hearing, the judge allowed the defendant's motion excluding all testimony regarding the defendant's refusal to allow medical personnel to take blood for treatment purposes ruling it would be a violation of the defendant's right against self incrimination.

The Commonwealth filed an interlocutory appeal arguing that the defendant's refusal to submit to a blood draw for purposes of treatment is admissible because even though the defendant was in police custody at the time, the request was not made at the direction of the officer and therefore, there was no state action. The Court agreed reasoning that the State action requirement of Article 12 is well established. "It is governmental, not private compulsion that is prohibited. Neither G.L. c. 90, § 24(e)(1), nor Article 12 renders inadmissible evidence of the defendant's refusal to consent to a blood test requested by medical professionals for medical purposes, even where the defendant is in custody and police may have an interest in the test results. The request here was made by private parties; it was not made by State actors or those acting at their behest and was made for medical reasons."