COMMONWEALTH vs. BRADLEY ZUCCHINO.

BUDD, C.J. The defendant, Bradley Zucchino, was charged with operating a motor vehicle while under the influence of 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. [Note 1]

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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 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.

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. [Note 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), [Note 3] and manslaughter by means of operating while under the influence of alcohol pursuant to G. L. c. 265, § 13 1/2. [Note 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

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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 . . . ."

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). [Note 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. [Note 6]

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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, including with regard to the admissibility of evidence. [Note 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).

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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.