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Tuesday, August 12, 2014

Driver in fatal Nashua crash argues blood tests violated his rights against unreasonable search and seizure

NASHUA – County prosecutors will fight a Massachusetts man’s attempts to have evidence thrown out of court that he had a blood-alcohol concentration nearly four times the legal limit to drive.

James Bazinet’s attorneys, public defenders Stephen Rosecan and Michael Davidow, have asked a judge to throw out the results of blood tests and argue that the law requiring drivers involved in crashes that cause death or serious injury be tested for alcohol or drugs violates defendants’ state and federal constitutional rights against unreasonable search and seizure. They also argued that hospital employees violated Bazinet’s HIPPA rights by turning over other lab tests to police, according to court documents. ...

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NASHUA – County prosecutors will fight a Massachusetts man’s attempts to have evidence thrown out of court that he had a blood-alcohol concentration nearly four times the legal limit to drive.

James Bazinet’s attorneys, public defenders Stephen Rosecan and Michael Davidow, have asked a judge to throw out the results of blood tests and argue that the law requiring drivers involved in crashes that cause death or serious injury be tested for alcohol or drugs violates defendants’ state and federal constitutional rights against unreasonable search and seizure. They also argued that hospital employees violated Bazinet’s HIPPA rights by turning over other lab tests to police, according to court documents.

Assistant Hillsborough County Attorney David Tencza said in a motion this month that the rules about legal searches, and HIPPA privacy rules, allow for exceptions that police relied on to test Bazinet’s blood.

Bazinet, 49, of 98 Penn Ave., Worcester, Mass., is scheduled to stand trial at Hillsborough County Superior Court on a charge of negligent homicide in December, more than two years after he crashed his car into a tree on Searles Road in Nashua, killing his passenger and fiance, Sheryl Laitinen, 55, according to court records.

Tencza’s motion states that lab tests showed Bazinet’s BAC was .29, approaching four times the .08 limit allowed for drivers.

Tencza said the judge should reject Bazinet’s arguments about illegal searches because detectives had probable cause to suspect alcohol was involved in the Dec. 1, 2012 crash after finding a cup of liquor in the car. There were also “exigent circumstances,” meaning police only had a brief window to draw the blood before Bazinet was transferred to a Massachusetts hospital for emergency surgery and therefore had no time to get a warrant, according to court records.

Bazinet’s lawyers said since he was seriously injured himself and was unconscious at the hospital when police told doctors to draw his blood to test it for alcohol, he was unable to give his consent. That constitutes an illegal search, the lawyers argued, and the results of those tests should be barred as evidence, according to their motion.

Bazinet was critically wounded in the crash, which was discovered quickly by firefighters returning to a fire station after clearing another call nearby. He suffered two broken arms, a possible spinal fracture and severe head trauma, according to court documents.

Tencza also argued that medical privacy rules allow for hospital workers to give police test results if they are part of a criminal investigation.

The state Supreme Court has also ruled in previous cases that suspects do not have an expectation of privacy of blood test results when they are the subject of a DWI investigation, according to court documents.

Bazinet was treated at Southern New Hampshire Medical Center, then transferred to Massachusetts General Hospital in Boston, where he was listed in critical condition. Laitinen was transported to St. Joseph Hospital, where she was pronounced dead, police said.

Bazinet is facing up to 15 years in prison, according to court documents.

His trial was scheduled to begin this fall but lawyers have agreed to delay those proceedings to give accident reconstruction experts more time to study the evidence, according to court documents.

Joseph G. Cote can be reached at 594-6415 or jcote@nashua
telegraph.com. Also, follow Cote
on Twitter (@Telegraph_JoeC).