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SJC

- 13384

COMMONWEALTH vs . BRADLEY ZUCCHINO

.

Essex. November 6, 2023.

– Apr il 1 , 2024.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.

Motor Vehicle , Operating under the influence , Homicide

. Evidence , Blood alcohol test. Practice, Criminal , Motion to suppress. Consent

. Statute , Construction.

I ndictments found and returned in the Superior Court Department on December 10 , 2020.
A pretrial motion to suppress evidence was heard by Salim Rodriguez Tabit , J. , and a question of law was reported by him to the Appeals Court.
The Supreme Judicial Court granted an application for direct appellate review.

Murat Erkan ( Eric Burdette also present) for the defendant. Marina Moriarty , Assistant District Attorney, for the Commonwealth. Barbara A. Smith & George G. Brell , of Missouri, & Matthew J. Stanford , of Arizona, for Mothers Against Drunk Driving, amicus curiae, submitted a brief.

BUDD , C. J. The defendant, Bradley Zucchino, was charged

with operating a motor vehicle while under the influence of2

alcohol causing serious bodily injury and dea th. T he defendant

contends that pursuant to G. L. c. 90, § 24 (1) ( e )
(§ 24 [1] [ e ]) , evidence of his blood alcohol content (BAC) at

the time of the accident is inadmissible at trial because , although his blood was drawn in the course of treatment, the BAC
analysis was conducted without his consent

. As discussed infra ,
the defendant's reading of § 24 (1) ( e ) is too broad. 1

1. Facts and prior proceedings

. We summarize the relevant

facts from the pleadings , which are undisputed for the purposes

of the instant appeal. On the evening of January 12, 2020,
police responded to the scene of a two

- car accident. In one

car , first responders located Yahaira Colon, the driver, and her

front seat passenger, Jessica Mercado. The other car was empty
when police arrived, its airbags deployed. The responding
officer observed the defendant sitting outside of the car with a
bloody nose. A firefighter at th e scene noted that the

defendant smelled of alcohol. The defendant told police he was
heading home from a bar and initially claimed a friend had been
driving. The defendant later told emergency responders that he

was the one driving. All three individua ls were transported to
the hospital , where Colon was pronounced deceased

.

1 We acknowledge the amicus brief submitted by Mothers Against Drunk Driving.3

A t the hospital , the defendant's blood was drawn i n the
ordinary course of treatment. The next day, l aw enforcement
applied for , obtained , and executed a search warrant to collect

the defendant's blood samples to perform a BAC test

. A chemist

determined that the defendant's BAC on the night of the accident

was between . 322 and .326 percent

. 2 The defendant was arraigned

in the Superior Court and was later indicted for , as relevant
here, operating a motor vehicle while under the influence of
alcohol causing serious bodily injury ( OUI

- SBI ) pursuant to

G. L. c. 90, § 24L (1) , 3 and manslaughter by means of operating

while under the influence of alcoh ol p ursuant to G. L. c. 265,

§ 13 1/2

. 4

2 A blood alcohol content of .08 percent or above is over the legal limit. See G. L. c. 90, § 24 (1) ( a ) (1); G. L.
c. 90, § 24L (1).

3 General Laws c. 90, § 24L (1), provides in part:

" Whoever . . . operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one

hundredths or greater, or while under the influence of intoxicating liquor, or marihuana, narcotic drugs, depressants, or stimulant su bstances, all as defined in [ G. L. c. 94C, § 1 , ] , . . . and so operates a motor vehicle recklessly or negligently so that the lives or safety of the public might be endangered, and by any such operation so described causes serious bodily injury, shall be p unished . . . . "

4 General Laws c. 265, § 13 1/2 , provides in part: "Whoever commits manslaughter while operating a motor vehicle in violation of [ G. L. c. 90, § 24 ( 1 ) ( a ) , or G. L. c. 90B, § 8A ] , shall be punished . . . ."4

T he defendant filed a motion to suppress the BAC results
pursuant to § 24 (1) ( e ) , contend ing that because he did not
give his consent to have his blood tested, his BAC results were

not admissible at trial. T he judge denied the defendant's

motion but reported the following question to the Appeals Cour t :

" I s the Commonwealth required to seek a defendant's consent in

order to admit his blood testing resul ts in the prosecution of a
G. L. c. 90 , § 24L [OUI

- SBI] offense?" See Mass. R. Crim. P.

34 , as amended, 442 Mass. 1501 (2004) . This court granted the
defendant's application for direct appellate review , and we now
affirm the denial of his motion to suppress .
2. Discussion

. " [ T ] he meaning of a statute must, in the
first instance, be sought in language in which the act is
framed, and if that is plain, . . . the sole function of the
courts is to enforce it according to its terms." Commonwealth

v. Dalton , 467 Mass. 555, 557 (2014), quoting Commonwealth v.

Boe , 456 Mass. 337, 347 (2010). See Commonwealth v. LeBlanc , 475 Mass. 820, 821 (2016) ("Clear and unambiguous language is
conclusive as to legislative intent" [ citation omitted ] ).

Section 24 (1) ( e ) provides in pertinent part:
"In any prosecution for a violation of paragraph ( a ), evidence of the percentage, by weight, of alcohol in the defendant ' s blood at the time of the alleged offense, .

. . shall be admissible . . . provided, however, that .

. . such test or analysis . . . w as made with the consent of the defendant . . . ."5

Paragraph ( a ) refer s to G. L. c. 90, § 24 (1) ( a ) (§ 24 [1]
[ a ]), which punishes operating a motor vehicle while under the
influence of alcohol or drugs (OUI). 5 Thus, a defendant's BAC is
admissible in a prosecution for OUI under § 24 (1) ( a ) only if

the test had been performed with the defendant's permission

.
See Commonwealth v. Moreau , 490 Mass. 387 , 392

- 393 (2022);

Commonwealth v. Bohigian , 486 Mass. 209, 211 (2020). Despite

th is unamb iguous language , the defendant contends that , read as
a whole, § 24 (1) ( e ) applies not only to simple OUI, but also

to the ag g ravated OUI

- related offenses with which he has been
charged

. 6

5 General Laws c. 90, § 24 (1) ( a ) , states in relevant part:

" Whoever, upon any way or in any place to which the public has a right of access . . . operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight
one - hundredths or greater, or wh ile under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances . . . shall be punished

. . . . "

6 A lthough § 24 (1) ( a ) is the only offense mentioned in § 24 (1) ( e ), the defendant posits that the phrase "[i]n any prosecution for a violation of paragraph ( a )" i s "shorthand" for all types of OUI offenses. This reasoning ignores the most basic canon of statutory construction: words in a statute are presumed to mean what they say. See Commonwealth v. Young , 453 Mass. 707, 713 (2009). Moreover, t he Legislature has amended various p r o visio ns of § 24, including § 24 (1) ( e ) after the enactment of § 24L (OUI

- SBI) , as recently as 2020

. See, e.g., St. 2005, c. 122, § 9 (added cross reference s of §§ 24G and 24L, and G. L. c. 265, § 13 1/2 , to § 24 [ 1 ] [ f ] [ 1 ] ); St. 2002,
c. 52, § 2. It readily is apparent , the n, that the Legislature could have amended the consent requirement of § 24 (1) ( e ) to apply to aggravated OUI offenses had it wished to do so.6

As support for this interpretation , t he defendant reasons

that because simple OUI is a lesser included offense of both

OUI

- SBI and manslaughter

- OUI , prosecution of the more serious
offenses necessarily includes the prosecution of the lesser

included offense. This reading ignores the plain language of

§ 24 (1) ( e ), which clearly limits its application to
prosecutions for violations of § 24 (1) ( a ). H ad the
Legislature wanted § 24 (1) ( e ) to apply to every offense that

includes the elements of § 24 (1) ( a ), it could have done so.

See , e.g., G. L. c. 276, § 58A (1) ("The commonwealth may move,
based on dangerousness, for an order of pretrial detention or
release on conditions for a felony offense that has as an

element of the offense the use, attempted use or threatened use
of physical force against the person of another . . ." [ emphasis

added ] ). T here is a difference between being charged with
simple OUI and being charged with an aggravated OUI offense , including that § 24 (1) ( e ) applies to the former but not the

latter.
Nor does a plain language interpretation of § 24 (1) ( e )

lead to absurd results. Given the Legislature's interest in
reducing serious injury and loss of life due to impaired
driving, i t is well within the purview of the Legislature to
treat simple OUI and aggravated OUI o ffenses differently ,7

including with regard to the admissibility of evidence. 7 See

Commonwealth v. Russ R ., 433 Mass. 515, 523 (2001), quoting

Commonwealth v. Leno , 415 Mass. 835, 841 (1993). See also

Moreau , 490 Mass. at 395 ("it is for the Legislature to weigh
the benefits and drawbacks of the statutory scheme"). T he
defendant's remaining arguments similarly do not per suade us to
ignore the plain language of § 24 (1) ( e )

.
3. Conclusion

. The language of G. L. c. 90, § 24 (1) ( e ) , requiring consent for blood test results to be admissible is
clear and unambiguous in its specific reference to violations of

§ 24 (1) ( a ). As the consent provision of § 24 (1) ( e ) does not
reference violations under any other section or chapter,

includin g G. L. c. 265, § 13 1/2 , or G. L. c. 90, § 24L , th e denial of the defendant's motion to suppress is affirmed

.
So ordered

.

7 T he preamble of the bill that introduce d § 24L note d that the purpose of the law was to "preserv[e] . . . public safety" and "avoid loss of life." 2003 House Doc. No. 3929. Similarly, the preamble of the equivalent act that introduced G. L. c. 265, § 13 1/2 , state d that its purpose was "to increase penalties for drunk drivers in the Commonwealth . . . necessary for the immediate preservation of the public safety." 2005 House Doc. No. 4403.