Com. v. Ames

• Decision Date: 09 July 1991
• Citation: 410 Mass. 603,574 N.E.2d 986
• Parties: COMMONWEALTH v. Richard F. AMES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 986

574 N.E.2d 986

410 Mass. 603

COMMONWEALTH v. Richard F. AMES.

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued May 8, 1991.

Decided July 9, 1991.

Stella Xanthakos (Ellen M. LaCroix, with her), for defendant.

Danielle J. Barshak, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

In this appeal from his conviction of vehicular homicide while operating under the influence of intoxicating liquor (G.L. c. 90, § 24G[a ] [1990 ed.] ), the defendant argues that his motion to dismiss the charge should have been allowed because the police failed to give him notice of his statutory right to an examination by a physician of his choice. See G.L. c. 263, § 5A (1990 ed.). ¹ He also contends that the evidence did not warrant his conviction and that the judge erred in several respects in his jury instructions. ² We transferred the case to this court on our own motion. We affirm the conviction.

The jury could have found the following facts. About 8:20 P.M. on October 1, 1989, State police trooper Richard P. Leydet found the dead body of James A. Hayes on the side of route 112 in Huntington. The victim's badly damaged motorcycle lay nearby. A pickup truck owned by the defendant's father, with extensive front end damage, straddled the double line in the middle of the road. There was a "smell of alcohol" inside the vehicle. The police spoke with the defendant's father who came to the scene. After several attempts to locate the defendant, Leydet and the defendant's father, with two other police officers, went to the Worthington home of the defendant's brother. They arrived there about 11:30 P.M., more than three hours after the accident. The defendant was sleeping in the basement. He was not easily awakened. Leydet concluded that the defendant was under the influence of alcohol. The defendant smelled of alcohol, had bloodshot and watery eyes, and moved slowly. The defendant was arrested for operating a motor vehicle while under the influence of alcohol. Because the defendant was limping and wanted medical attention, Trooper Leydet took him to a hospital in Westfield. We shall set forth what happened next when later we discuss the defendant's claim that he was denied his statutory right to a medical examination by a physician of his choice.

There was evidence that the defendant had consumed nine beers during the day, and that a bartender at the last saloon he had visited prior to the accident had refused to serve him any more alcoholic beverages. A friend had driven the defendant from this drinking establishment in the defendant's vehicle. The friend left the vehicle when they arrived at the friend's residence. It was there that the defendant began driving. After the accident, saying that his truck had become stuck in a ditch, he persuaded an acquaintance who lived about one mile from the accident scene to drive him to his brother's house. She noticed that the defendant smelled of alcohol.

1. The defendant's argument that he was entitled to a required finding of not guilty must fail under the standard expressed in Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). Although there was evidence that tended to show that the defendant was not under the influence of alcohol at the time of the accident, the evidence that we have just recited presented a case for the jury. ³

2. The principal issue in this appeal concerns the defendant's claim that the charge of vehicular homicide should have been dismissed because the police failed to advise the defendant of his right to an independent medical examination and failed to make a reasonable opportunity for such an examination available, as provided by G.L. c. 263, § 5A.

Section 5A requires that the police officer in charge of the police station or other place of detention inform a person held in custody in such a place and charged with operating a motor vehicle while under the influence of intoxicating liquor, immediately on being booked, that he has the right "at his request and at his expense, to be examined immediately by a physician selected by him." Section 5A further requires that the police afford that person a reasonable opportunity to exercise that right. On being booked, a person must also be given a copy of § 5A unless a copy is posted in a conspicuous place to which the person has access.

The § 5A issue in this case must be resolved on the basis of the police conduct. We turn, therefore, to the judge's findings on the defendant's motion to dismiss the charge, picking up from the point where Trooper Leydet arrested the defendant at his brother's house and took him to a hospital. On the way to the hospital, Leydet told the defendant and his father, who came along in the cruiser, that he could have either a blood alcohol test at the hospital or, after his release from the hospital, a breathalyzer test at the State police barracks in Russell.

Two State police sergeants met the defendant at the hospital. One of them told the defendant that, since he was at the hospital, he could take a blood alcohol test but that he could not take a breathalyzer test because there was no breathalyzer machine at the hospital. The defendant declined a blood test, saying that he wanted a breathalyzer test. The sergeant told him that a breathalyzer test was not an option, and asked him to take a blood test which the defendant refused to do.

The hospital released the defendant at 12:45 A.M. (October 2), and Trooper Leydet drove the defendant to the Russell barracks for booking. He arrived there at 1:10 A.M. His father and other family members were there. The police gave the defendant no further advice as to his rights. A copy of G.L. c. 263, § 5A, was hanging on the wall by the booking desk, but no one directed his attention to it. He was released from custody at 2:15 A.M.

The judge adopted the option mentioned in Commonwealth v. Andrade, 389 Mass. 874, 882 n. 3, 453 N.E.2d 415 (1983), and deferred ruling on the motion until after the trial. The judge concluded after trial that the evidence of guilt was very substantial, "while not perhaps overwhelming," and that dismissal of the case was not warranted by the minor, and probably immaterial, flaw of the troopers' failure to tell the defendant of his right to an examination by a physician of his own choosing.

The judge pointed out in his discussion of the issue that the offer at the hospital of a blood alcohol content test was more than the defendant was entitled to. The judge concluded, however, that the offer made was not an offer of an examination by a physician of the defendant's choice and at the defendant's expense but rather a test initiated by whatever physician was on duty at the hospital's emergency room. The judge inferred, as he was justified in doing on the evidence, that the defendant, who was in consultation with his father, declined the blood test at the hospital and asked for a breathalyzer test because he believed that the passage of time would reduce the possibility of an inculpatory test result. The judge concluded that the failure to tell the defendant that he could have an examination by a physician of his choice and at his expense did not prejudice the defendant in any way because, if he had been so advised, he would not have changed his mind and had a blood test. The judge made no finding as to what the defendant would have done if he had been advised of his § 5A right not only to a blood test but also to an examination by a physician of his choice.

Section 5A does not state the consequences that should flow from a violation of its terms. See Commonwealth v. Andrade, supra at 877-878, 453 N.E.2d 415. Dismissal of the charges is inappropriate if the evidence against the defendant is overwhelming. Id. at 882, 453 N.E.2d 415.

The police fulfilled the basic objective of § 5A when they took the defendant to a hospital for a physical examination, which he had, and advised him of his right to have a blood alcohol content test performed at the hospital, which he declined. The defendant was in a far better position than is a person who is booked in the middle of the night at a police station on the charge of operating a motor vehicle while under the influence of alcohol. Such a person is not entitled to a police-administered blood alcohol content test (Commonwealth v. Alano, 388 Mass. 871, 877, 448 N.E.2d 1122 [1983] ), nor is such a person entitled to active police assistance in obtaining such a test (id. at 879, 448 N.E.2d 1122).

When the police transported the defendant to a hospital in the middle of the night for a medical examination and advised him of his right to...