COMMONWEALTH vs. KENNETH DAVIDSON.

ARMSTRONG, J. Following the deaths of two persons whose car was struck from the rear by the defendant's car, the defendant was convicted of two counts of manslaughter and two counts of vehicular homicide. There was abundant evidence that the defendant was intoxicated -- that he had been drinking in the hours before the accident, that his car was travelling erratically and at high speed, that his breath smelled strongly of alcohol, that his voice was "thick-tongued," his eyes glassy, and his gait wobbly, that he failed a field sobriety test, and that his breathalyzer readings (.25 and .21) and blood test reading

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(.22) were substantially in excess of the statutory standard (.10) for a presumption that he was under the influence of intoxicating liquor. G. L. c. 90, Section 24(1)(e), as amended through St. 1980, c. 383, Section 1. [Note 1]

Before trial, in response to a motion to suppress various statements the defendant made to police officers at the accident scene and during booking, the judge excluded all such statements based on "overwhelming evidence of [the] defendant's high degree of intoxication," from which the judge concluded that the "statements were not voluntary and the product of a rational intellect and a free will and that the defendant was too intoxicated to have voluntarily, knowingly and intelligently waived his Miranda rights."

At trial the defendant objected to the admission in evidence of the breathalyzer and blood test results on the ground that the defendant had not been informed prior to electing to take the tests that the accident victims had died. [Note 2] It was conceded, however, that the police officers did tell the defendant that he was being charged with operating under the influence of intoxicating liquor, and it is inferable that the defendant must have known from the crushed condition of the victims' car that they at least suffered serious bodily injury. [Note 3] The judge overruled the objection, and this ruling is the principal claim of error.

The defendant casts his contention on appeal somewhat differently from his objection below: there, he focused on the officers' failure to inform him of the full seriousness of the charges; on appeal, he focuses on an alleged contradiction

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between the pretrial finding that he was too intoxicated to waive his Miranda rights and the judge's implied finding during the trial that he had given his consent to the breathalyzer and blood tests, as required by G. L. c. 90, Section 24(1)(e) and (f). While arguably different (as to which see Commonwealth v. Owens, 402 Mass. 639, 641 [1988]), we think the defendant's objection at trial and his argument here are merely different facets of the same underlying contention: namely, the defendant cannot be deemed to have consented to the breathalyzer and blood tests because the Commonwealth cannot show that any choice he made that evening was knowing, voluntary, and intelligent.

Where there is probable cause to believe that a defendant has been operating a vehicle while under the influence of intoxicating liquor, the defendant has no constitutional right to refuse a blood test or a breathalyzer test. Schmerber v. California, 384 U.S. 757, 770-772 (1966). Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 624-626 (1989). Burnett v. Anchorage, 806 F.2d 1447, 1449-1450 (9th Cir. 1986). Commonwealth v. Angivoni, 383 Mass. 30, 32 (1981). The right of refusal he does have stems from the statute, which requires that a test not be conducted without his consent. Typically, where a right is conferred by statute and "is not a fundamental constitutional right, we apply traditional indicia of waiver of rights." Commonwealth v. Carr, 3 Mass. App. Ct. 654, 656 (1975), citing Commonwealth v. Davis, 367 Mass. 422, 423-424 (1975). To the same effect, see Barry v. Commonwealth, 390 Mass. 285, 296 (1983), Commonwealth v. Farris, 390 Mass. 300, 305 (1983), and Commonwealth v. Deeran, 397 Mass. 136, 140-142 (1986). See also the discussion in Spence v. Reeder, 382 Mass. 398, 410-412 (1981). Traditional indicia include waiver by inaction, Commonwealth v. Davis, supra at 423; by express agreement, Barry v. Commonwealth, supra at 298; by untimely motion, Commonwealth v. Deeran, supra at 140-141; and by failure to object, Commonwealth v. Carr, supra at 656-657. Thus, "[t]he `knowing' and `intelligent' standard . . . applies only to a defendant's `consent' to the actual relinquishment of [a] constitutional right." Commonwealth v. Deeran, supra at 141.

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It is apparent from context that G. L. c. 90, Section 24(1)(e) and (f), do not contemplate voluntary consent in the constitutional sense. A drunk driving suspect who refuses a test after being advised of the automatic 120-day suspension of his driver's license for refusing is subjected to coercive pressure not normally regarded as consistent with voluntary waiver of constitutional rights. The statute, moreover, contemplates the admission in evidence of breathalyzer test results that establish presumptively the inebriated condition of the suspect or, at least, the impairment of his faculties. The purpose of the provisions regarding actual consent (as opposed to the implied consent established by the first sentence of Section 24 [1][f]) seems to have been to avoid forced testing -- i.e., testing by means of physical compulsion -- that was thought after Rochin v. California, 342 U.S. 165 (1952), to be of dubious constitutional validity. See the discussion in State v. Newton, 291 Or. 788, 791-798 (1981). See also Lerblance, Implied Consent to Intoxication Tests: A Flawed Concept, 53 St. John's L. Rev. 39, 47 n.22 (1978).

"Implied consent" statutes typically forbid testing where the suspect refuses or withholds his consent at the scene. [Note 4] So far as we have found, no State court has interpreted its statute to require consent or waiver in accordance with the "voluntary, knowing, and intelligent" standard applicable to waiver of important constitutional rights. Decisions suggesting the contrary are numerous. See Bush v. Bright, 264 Cal. App. 2d 788, 793 (1968); People v. Doherty, 144 Ill. App. 3d 400, 403-404 (1986); Corum v. McNeill, 716 S.W.2d 915, 917 (Mo. App. 1986); Jensen v. Jensen, 222 Neb. 23, 26-27 (1986); Hoban v. Rice, 25 Ohio St. 2d 111, 118-119 (1971); Department of Motor Vehicles v. McElwain, 80 Wash. 2d 624, 628-629 (1972). See generally 3 Erwin, Defense of Drunk Driving Cases Section 33.06[5] (3d ed. 1988) and cases cited therein. See also State v. Taylor, 12 Conn. App. 427, 433-434 (1987)

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(absent duress, apparent consent to breath test satisfies implied consent statute). Compare State v. Locke, 418 A.2d 843, 850 (R.I. 1980); In re Kean, 520 A.2d 1271, 1274 (R.I. 1987) (assuming without deciding that waiver of statutory right must satisfy constitutional standards).

Here there is no question that the defendant consented to the two breathalyzer tests in the customary sense of that term and that he requested the blood test when told of his right to such a test by the police. The only suggestion of nonconsent arose from doubts as to his sobriety at the time. The testing therefore complied with the statutory requirements, and the results were properly admitted in evidence. [Note 5]

The judgments require modification, however, for a different reason. The Commonwealth concedes that the motor vehicle homicide convictions were duplicative of the manslaughter convictions. See Commonwealth v. Jones, 382 Mass. 387, 395-397 (1981). See also Commonwealth v. Cerveny, 387 Mass. 280, 289 (1982); Commonwealth v. Thomas, 400 Mass. 676, 682 (1987). Accordingly, the defendant's convictions on those two counts must be vacated and the indictment charging motor vehicle homicide dismissed. The judgments on the manslaughter convictions are affirmed.

So ordered.