Mass. high court hears challenge over converting hospital serum ethanol into blood-alcohol evidence

The Massachusetts Supreme Judicial Court heard argument in Commonwealth v. Denny Gannett over whether applying a mathematical conversion to a hospital’s serum ethanol result constitutes a “chemical test or analysis” under the state’s operating-under-the-influence statute, G.L. c. 90, §24(1)(e), and therefore should be suppressed as nonconsensual evidence.

The question matters because, if the court adopts the defendant’s reading, prosecutors say a commonly used method to convert hospital serum ethanol readings into whole‑blood alcohol content (BAC) could be excluded at trial; the decision could affect OUI prosecutions across the Commonwealth.

Kevin Hennessy, arguing for the Commonwealth, told the court the statute should be read so that a mathematical conversion of an existing hospital serum ethanol result is not a new chemical test or analysis done “of the defendant’s blood.” Hennessy described the factual mechanics: the hospital’s laboratory produced a serum ethanol result of 292 milligrams per deciliter, which the State Police crime lab converted to a whole‑blood BAC by dividing by 1,000 and applying conversion factors the lab used (1.12, 1.14 and 1.18), yielding a BAC range the Commonwealth described as about 0.24 to 0.26. Hennessy argued that the conversion is analogous to converting inches to centimeters and that prior precedent and the statute’s history support admitting the converted value.

Defense counsel Michael S. Bowser Jr. urged a contrary reading. Bowser said the statutory consent mechanism protects bodily autonomy and that permitting the Commonwealth to convert and use hospital blood results would undermine a defendant’s choice to refuse chemical testing by police. He emphasized that the hospital blood draws were performed for medical purposes, that hospital laboratory assays are chemical tests (albeit screening-level ones), and that applying conversion factors produces an analysis that, in his view, falls within the statutory phrase “chemical test or analysis.”

Justices pressed both sides on statutory language and purpose. One justice asked whether the word “chemical” modifies both “test” and “analysis”; counsel for each side disputed whether mathematical conversion of a hospital result should be treated as a new chemical analysis. Another justice queried why the Commonwealth had invoked interlocutory review under the rule the petition cited (referred to in argument as “2 11 3”), and counsel said the Commonwealth sought early resolution because the ruling below—allowing suppression—could significantly hamper prosecutions.

Both sides discussed precedent. The Commonwealth pointed to decisions the court has cited in the past (Moreau; Bohegan) and to earlier appeals‑court rulings (including Commonwealth v. Riley and other cases referenced in argument) to argue that the type of evidence at issue has been admitted previously and that the legislature did not materially alter the consent provision over multiple amendments. The defense cautioned that permitting converted hospital results to be used would allow prosecutors to obtain evidence without the defendant’s consent and could deter necessary medical treatment if patients believe hospital testing will be used in prosecutions.

Counsel also debated technical and evidentiary distinctions: the Commonwealth described hospital enzymatic serum assays as a different testing hierarchy from gas chromatography and breath testing and argued that the conversion step is a mathematical application to an existing result; the defense countered that the conversion is an analysis of a chemical (ethanol) in a biological sample and thus falls within the statutory restriction when used to prosecute an OUI case.

The court heard argument but did not announce a decision at the proceeding. No ruling or vote appears in the transcript; the case remains submitted for further consideration.