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SJC-13384

COMMONWEALTH vs. BRADLEY ZUCCHINO.

Essex. November 6, 2023. – April 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.

Indictments 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 of 
2

alcohol causing serious bodily injury and death. The 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 the 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 individuals were transported to 

the hospital, where Colon was pronounced deceased. 

1 We acknowledge the amicus brief submitted by Mothers 

Against Drunk Driving. 
3

At the hospital, the defendant's blood was drawn in the 

ordinary course of treatment. The next day, law 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 alcohol pursuant 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 onehundredths or greater, or while under the influence of 

intoxicating liquor, or marihuana, narcotic drugs, 

depressants, or stimulant substances, 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 

punished . . . ." 

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

The defendant filed a motion to suppress the BAC results

pursuant to § 24 (1) (e), contending that because he did not 

give his consent to have his blood tested, his BAC results were 

not admissible at trial. The judge denied the defendant's 

motion but reported the following question to the Appeals Court:

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

order to admit his blood testing results 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 . . . was made with the consent of 

the defendant . . . ."
5

Paragraph (a) refers 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 

this unambiguous language, the defendant contends that, read as 

a whole, § 24 (1) (e) applies not only to simple OUI, but also 

to the aggravated 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 while under the influence of 

intoxicating liquor, or of marijuana, narcotic drugs, 

depressants or stimulant substances . . . shall be punished 

. . . ." 

6 Although § 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)" is "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, the Legislature has amended

various provisions 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 references 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, then, 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, the 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). Had 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]). There 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, it is well within the purview of the Legislature to 

treat simple OUI and aggravated OUI offenses 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"). The 

defendant's remaining arguments similarly do not persuade 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, 

including G. L. c. 265, § 13 1/2, or G. L. c. 90, § 24L, the 

denial of the defendant's motion to suppress is affirmed. 

So ordered.

7 The preamble of the bill that introduced § 24L noted 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, stated 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.