Commonwealth v. Lively
Commonwealth v. Lively
Opinion of the Court
Having been convicted by a jury of six of operating a motor vehicle while under the influence of intoxicating liquor, the defendant appeals, arguing that his motion to dismiss the complaint or suppress breathalyzer
Except as noted, the facts are not in dispute. Approximately fifteen minutes after his arrest, the defendant was taken to the Leominster State police barracks at 12:50 a.m. on August 16, 1988, and the usual booking procedure was started.
Breathalyzer tests were administered at 1:15 a.m. and 1:19 a.m. Shortly thereafter, the results of the tests, indicating an alcohol level of .10 percent, were communicated to the defendant. The defendant was bailed and released at 1:55 a.m. The court clerk who admitted him to bail arrived at the barracks at 1:35 a.m. The defendant left the barracks with his wife, who had arrived just prior to his being bailed. Directly upon leaving the barracks, the defendant unsuccessfully sought to obtain a blood test at a Leominster hospital.
The defendant testified at the motion hearing that he was denied an opportunity to make a telephone call during the period between the com
General Laws c. 263, § 5A, generally requires that the police not unreasonably prevent or hinder a suspect in the exercise of his right to be examined by a physician selected by him. Commonwealth v. Alano, 388 Mass. 871, 879 (1983). It is well established that the police need not affirmatively assist a suspect to obtain an independent examination, Commonwealth v. Rosewarne, 410 Mass. 53, 55 (1991), but “need only inform him of his rights and allow him access to a telephone.” Commonwealth v. Alano, supra at 879. The defendant was given an opportunity to read a posted copy of his rights, including those here in issue, at the commencement of the booking procedure which was undertaken shortly after his arrest. Almost immediately thereafter, he was permitted extensive use of a telephone. The direction of a defendant’s attention to the posted rights, coupled with access to a telephone, satisfies the police obligation under G. L. c. 265, § 5A. See Commonwealth v. Andrade, 389 Mass. 874, 876-877 (1983); Commonwealth v. Gruska, ante 940, 941 (1991). The defendant may not now be heard to claim he unreasonably was delayed in the exercise of his right to be examined simply because he chose not to read the posted copy and, therefore, did not assert the right until it was recited to him following his telephone calls.
Moreover, when a defendant, during the course of a booking procedure, opts both to accept an offer of a breathalyzer test and claim his right to an examination by a physician, failure to permit exercise of the latter until completion of the former does not constitute unreasonable interference. The need to avoid stale and perhaps inaccurate breathalyzer test results dictates that delays in testing be avoided. Recognizing these “formidable practical!problems," Commonwealth v. Brazelton, 404 Mass. 783, 785 (1989), held that a defendant does not have a right to consult an attorney before deciding whether to take a breathalyzer test. We have no reason to assume as a general proposition that a physician could be contacted and convinced to conduct an examination more quickly than a lawyer’s advice could be obtained. Therefore, even if we ignore the motion judge’s finding of noninterference and the fact that the defendant was permitted to use a telephone after being made aware of the posted rights, the maximum delay that the defendant can claim is for the period between 1:19 A.M., the time of the completion of the last breathalyzer test, and 1:55 a.m., the time of his release. All circumstances should be considered in assessing the reasonableness of police conduct. Commonwealth v. Alano, supra at 879-880.
The defendant argues that he was not advised, prior to taking the breathalyzer test and in accordance with the provisions of 501 Code Mass. Regs. § 2.55 (1987), that a reading of .10 or greater could result in a suspension of his license to operate a motor vehicle pursuant to G. L. c. 90, § 24N. This argument ignores the motion judge’s finding that the defendant was properly advised of his rights at the time of his arrest and the evidence supporting that finding, to the effect that a statement of such consequences was contained in the posted copy which was pointed out to the defendant. As we have indicated, the defendant is bound by the information contained in that posted copy. In any event, police are not obligated to “advise a person arrested for driving under the influence of intoxicating liquor of the consequences” attendant to failing the breathalyzer test. Commonwealth v. Crowell, 403 Mass. 381, 388 (1988). Commonwealth v. Madden, 28 Mass. App. Ct. 975, 976 (1990).
Relying on statutory and regulatory provisions declaring invalid breathalyzer tests administered by other than a certified operator,
Judgment affirmed.
The booking procedure was captured on videotape, which was viewed by the motion judge, and a transcript of the audio portion is in our record.
General Laws c. 263, § 5A, as amended through St. 1983, c. 557, states: “A person held in custody at a police station or other place of detention, charged with operating a motor vehicle while under the influence of intoxicating liquor, shall have the right, at his request and at his expense, to be examined immediately by a physician selected by him. The police official in charge of such station or place of detention, or his designee, shall inform him of such right immediately upon being booked, and shall afford him a reasonable opportunity to exercise it. Such person shall, immediately upon being booked, be given a copy of this section unless such a copy is posted in the police station or other place of detention in a conspicuous place to which such person has access.”
G. L. c. 90, § 24K, and 501 Code Mass. Regs. § 2.03 (1987).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.