|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal
Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Madden, 28 Mass.App.Ct.
975 (1990)
Appeals Court of Massachusetts,
No. 89‑P‑238.
Argued
Decided
Neal M. Brown, for defendant.
Jane A. Donohue, Asst. Dist. Atty., for Com.
Before ARMSTRONG, CUTTER and KASS,
JJ.
RESCRIPT.
When
arrested for operating a car while under the influence of alcohol, the
defendant Madden was driving left of the center line, smelled of liquor, was
red‑eyed and slurry of speech. He
failed field sobriety tests (alphabet, nine‑step, toe‑heel, walk‑the‑straight‑line,
one‑leg stand). At the police
station house he submitted to breathalyzer tests on which the percentage, by
weight, of alcohol in his blood registered as .18 and .19. A factor of .10 is sufficient to trigger a statutory
presumption of intoxication, G.L. c. 90, § 24(1)(e ), as amended through St.1980, c. 383,
§ 1, and immediate suspension of an accused's driving
license at arraignment. G.L. c. 90, § 24N.
Madden was convicted of operating under the influence at a jury‑waived
trial before a judge of the Boston Municipal Court. His appeal raises the question whether G.L. c. 263, § 5A, with which the police complied, provides
sufficient notice to a drunk driving defendant that he is entitled to a blood
test. The defendant urges two other
points which he may not have properly preserved, but we comment on them
briefly.
[1] 1. Adequacy of the G.L.
c. 263, § 5A, warning. Under § 5A,
inserted by St.1958, c. 401, a person held in custody for driving under the
influence of alcohol is to be informed of the right, "at his
request and at his expense, to be examined immediately by a physician selected
by him." It is the defendant's
contention that being told of a right to a medical examination inadequately
informs the person in custody that under G.L. c. 90,
§ 24(1)(e ), he or she is entitled to
an opportunity to have a blood test performed by a physician of choice and that
under G.L. c. 90, § 24N, only an exculpatory blood
test can secure restoration of a license suspended at arraignment on the basis
of a prima facie showing by the Commonwealth of high blood alcohol levels.
Not the
least of the defendant's difficulties with his position is that G.L. c. 263, § 5A, came on the statute books, in 1958,
before G.L. c. 90,§§ 24(1)(e ) and 24N, were inserted in 1961 (St.1961, c. 340) and 1986,
respectively (the latter as part of the Safe Roads Act of 1986, see St.1986, c.
620, § 17). It is unconvincing to hold G.L. c. 263, § 5A, to a specificity of reference to methods
of testing for intoxication which did not appear in the statutes when G.L. c. 263, § 5A, was originally inserted.
When blood
alcohol levels have been at issue, our cases, without discussion, have treated
notice under G.L. c. 263, § 5A, of the right to
independent and immediate medical examination as adequate to apprise someone[28 Mass.App.Ct.
976]
in custody for "driving under" of that person's rights, among
other things to an independent blood test.
See Commonwealth v. Alano, 388 Mass. 871, 874‑878, 448 N.E.2d 1122
(1983);
Commonwealth v. Andrade, 389 Mass. 874, 875‑877, 453 N.E.2d
415 (1983); Commonwealth v. Kelley, 404 Mass. 459,
463‑464, 535 N.E.2d 1251 (1989); Commonwealth v. Brazelton,
404 Mass. 783, 785, 537 N.E.2d 142 (1989); Commonwealth v. Paiva,
16 Mass.App.Ct. 561, 563‑564, 453 N.E.2d 469
(1983);
Commonwealth v. Schatvet, 23 Mass.App.Ct. 130, 138, 499 N.E.2d 1208 (1986);
Commonwealth v. Carey, 26 Mass.App.Ct.
339, 343, 526 N.E.2d 1329 (1988). Cf. Commonwealth v. Marley, 396 Mass. 433,
440‑441, 486 N.E.2d 715 (1985); Commonwealth v. Mahoney, 400 Mass. 524,
526, 510 N.E.2d 759 (1987). It is a
merit of G.L. c. 263, § 5A, that it alerts a person
accused of driving under the influence of intoxicating liquor to the potential
value of a medical examination which, in the face of scientific innovation or
particular circumstances, may take a form other than a blood test. The statute is inclusive. We may assume that, if an accused calls a
physician to seek assistance in rebutting a charge of intoxication, the
physician will do a blood test so long as that is the most reliable diagnostic
procedure.
[2] To be
sure, under G.L. c. 90, § 24N, it is a blood test‑‑not
some other diagnostic test‑‑which can rebut the presumption of
being under the influence expressed in § 24(1)(e ). For that reason a blood
test, whether chemical or through breath analysis, should be the diagnostic
procedure of choice. The police,
however, are not obligated to assist accused persons in preparing an optimal
defense. They are to afford reasonable
opportunity to prepare a defense when an accused, having been alerted to his
right to seek assistance from a physician, takes steps to get it. See
Commonwealth v. Alano, 388 Mass. at 879, 448
N.E.2d 1122; Commonwealth v. Lindner, 395 Mass. 144,
146‑148, 478 N.E.2d 1267 (1985).
Nor are police obligated to instruct a person arrested that a positive
breathalyzer test result (i.e., showing the subject to be under the influence)
will result in a 90‑day license suspension. Commonwealth v. Crowell,
403 Mass. 381, 386, 529 N.E.2d 1339 (1988).
Although we do not think there is a constitutional obligation upon
police to coach persons in custody about what sort of medical test is
desirable, it would be sound practice, i.e., beyond constitutional or statutory
imperatives, if police were to notify a person taken into custody for driving
under the influence of the right to be examined by a physician and to have an independent blood
test. Cf. Commonwealth v. Doyle, 392 Mass. 23, 25, 465 N.E.2d 1192 (1984);
Commonwealth v. Crowell, 403 Mass. at 383, 529 N.E.2d 1339.
[3] 2. Right to presuspension
hearing. The defendant argues the
unconstitutionality of G.L. c. 90, § 24N, because it
requires suspension of a driver's license, without hearing, upon a prima facie
showing of blood alcohol level of .10 or more.
The point that § 24N is not facially defective was dealt with in Commonwealth v. Crowell, 403 Mass. at
385, 529 N.E.2d 1339, in which the court assumed that the right to a presuspension hearing, if asked for, exists under § 24N‑‑in
addition to the hearing available within ten days to present blood test results
contradicting the breathalyzer test. In
the instant [28 Mass.App.Ct.
977] case, the defendant was
afforded a hearing to rebut the breathalyzer test result at a later date. The defendant does not suggest that he was
prejudiced by the delay. The evidence
was strong that he was not merely under the influence but, in fact, drunk.
3. Right to counsel. The defendant argues the invalidity of § 24N
because it requires punishment of a defendant (license suspension) at a time
when the defendant is rarely represented by counsel. It is enough to observe that in the instant
case the defendant was represented by counsel at arraignment.
Judgment affirmed.