Com. v. Andrade

• Decision Date: 15 August 1983
• Citation: 453 N.E.2d 415,389 Mass. 874
• Parties: COMMONWEALTH v. Manuel M. ANDRADE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 415

453 N.E.2d 415

389 Mass. 874

COMMONWEALTH v. Manuel M. ANDRADE.

Supreme Judicial Court of Massachusetts Middlesex.

Argued April 5, 1983.

Decided Aug. 15, 1983.

Keith L. Miller, Cambridge, for defendant.

Patricia A. McEvoy, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

HENNESSEY, Chief Judge.

The defendant was arrested and charged in two complaints with operating a motor vehicle while under the influence of intoxicating liquor and operating a motor vehicle the wrong way on a one-way street. He claimed his right to a trial by jury in the first instance, and filed a motion to dismiss the charges pending against him on the grounds that the alleged rights afforded him under G.L. c. 263, § 5A, and G.L. c. 90, § 24(1)(e ), had been violated and that these violations denied him certain constitutional rights. A District Court judge reported, without decision, the various questions of law to the Appeals Court. We transferred the case to this court on our own motion.

Essentially, the judge has reported the questions: (1) Was the defendant denied rights under G.L. c. 90, § 24, or G.L. c. 263, § 5A? (2) If he was denied such rights, what should the remedy be in the circumstances of this case? We first determine that the police officers' actions did not violate the defendant's statutory rights under G.L. c. 90, § 24(1)(e ). We further conclude, however, that the police officers' failure to inform the defendant of his right to request an independent physical examination at his own expense violated the defendant's rights under G.L. c. 263, § 5A. We determine that, absent overwhelming evidence of guilt, dismissal of the complaint for driving a motor vehicle while under the influence of intoxicating liquor would be an appropriate remedy in this case for this violation of the defendant's statutory rights under G.L. c. 263, § 5A.

The District Court judge found the following facts. After being arrested on December 31, 1981, the defendant was brought to the Cambridge police station at approximately 1 A.M. for booking. The booking procedure was videotaped and replayed for the judge. It demonstrated that the police officers attempted to obtain the defendant's consent or refusal to a breathalyzer examination in accordance with G.L. c. 90, § 24(1)(e ). The defendant did not respond to the inquiries and explanations of the police officers. The defendant is a native of the Azores, and his capacity to understand the English language is "marginal at best." Consequently, the defendant did not understand the police officers when they attempted to obtain his consent or refusal to take the breathalyzer examination in accordance with G.L. c. 90, § 24(1)(e ). The police officers, nevertheless, deemed his failure to respond to be a refusal to take a breathalyzer examination. Furthermore, the police officers made no attempt to advise the defendant of his right under G.L. c. 263, § 5A, to request an independent physical examination at his own expense. A copy of G.L. c. 263, § 5A, with a Portuguese translation, was posted on the wall of the police station, but no one directed the defendant's attention to the posting. The defendant was unaware of his right to request an independent physical examination.

1. We conclude that no rights of the defendant under G.L. c. 90, § 24, have been violated in this case. In Commonwealth v. Alano, 388 Mass. 871, 875, 448 N.E.2d 1122 (1983), we recently determined that G.L. c. 90, § 24(1)(e ), "does no more than regulate the admissibility and effect of chemical tests of blood alcohol content." We stated: "If the police administer a blood alcohol content test, the section imposes certain requirements which must be met if the test is to be admissible on the issue whether the defendant was intoxicated. It does not establish a right to a police administered test." Id. Thus, the police officers had no statutory duty to ask the defendant whether he desired to consent to or to refuse to take a breathalyzer examination because they had no statutory duty to administer such a test. Id. It follows that the police officers' unsuccessful attempts to inquire of the defendant whether he desired to consent to or to refuse to take a breathalyzer examination similarly did not violate any rights of the defendant under G.L. c. 90, § 24(1)(e ).

2. The defendant next argues that the police officers' failure to inform him of his right, under G.L. c. 263, § 5A, to an independent examination at his expense, violated G.L. c. 263, § 5A, and warrants dismissal of the complaint. General Laws c. 263, § 5A, as appearing in St.1960, c. 237, provides: "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 shall inform him of said 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." It is undisputed that the police officers did not attempt in any fashion to inform the defendant of his right to an independent examination under this section. Indeed, although a Portuguese translation of the provision was posted on the wall of the police station, no one attempted to bring it to the attention of the defendant. We think it is clear that the defendant's statutory rights were violated in this case.

The statute, however, is silent as to the remedy for violations of its provisions. The Commonwealth contends that the Legislature has already addressed this issue and has indicated that dismissal of the complaint is not an appropriate remedy. Prior to 1960, G.L. c. 263, § 5A, ended with the sentence providing that the police official in charge of the station where the defendant is held should inform the defendant of his right and allow a defendant reasonable opportunity to exercise that right. St.1958, c. 401. In 1960, the Legislature added the sentence requiring the police either to provide a defendant with a copy of G.L. c. 263, § 5A, or to post a copy of it in a conspicuous place. The Commonwealth notes that the Legislature had considered a draft bill which did not contain the sentence requiring a copy of G.L. c. 263, § 5A, to be posted, but rather included the following provision: "If such police official fails to advise the accused of his rights as aforesaid, the complaint arising out of such arrest shall be dismissed on motion made by the accused." 1960 House Doc. No. 2401. The Commonwealth urges that the Legislature's failure to enact this version indicates that the only "remedy" under G.L. c. 263, § 5A, is that a copy of the section be posted or be given to a defendant. This contention is without merit. The requirement that a defendant either be provided with a copy of G.L. c. 263, § 5A, or that one be posted is not a remedy at all, but rather is another statutory right. The Legislature's creation of this additional right evinces the Legislature's concern that defendants be adequately informed of their right to an independent examination.

The Commonwealth further suggests, however, that the Legislature's failure to enact the draft bill providing for dismissal of a complaint where the police do not inform a defendant of his right to an independent examination, demonstrates that the Legislature does not approve of dismissal of a complaint as an appropriate remedy. We do not think that this inference can be drawn from the Legislature's failure to enact this provision. To preclude dismissal of a complaint as a remedy would contravene the Legislature's clear concern with protecting a defendant's right to an independent examination under this section. It is more consistent with legislative intent to conclude that the Legislature chose to leave the task of shaping the appropriate remedies for violations of this section to the courts. Dismissal of a complaint may not be an appropriate or necessary remedy in all cases. Cf. Commonwealth v. Atencio, 12 Mass.App. 747, ---, Mass.App.Ct.Adv.Sh. (1981) 2020, 2023, 429 N.E.2d 37 (where defendant was injured in automobile accident and brought to hospital and where police officers were involved with exigent circumstances, failure of police to inform defendant of his right to independent examination did not require suppression of evidence obtained by police). Rather, each case must be considered on its own set of facts and a remedy adequate to cure potential or actual prejudice resulting from a violation of G.L. c. 263, § 5A, should be allowed.

Turning to the facts of the case at bar, it appears that dismissal of the complaint for operating a motor vehicle while under the influence of intoxicating liquor may be an appropriate remedy. The police officers made no attempt to inform the defendant of his right under G.L. c. 263, § 5A, to an independent examination, even though there was a Portuguese translation of the statute that could easily have been shown to him. There were no exigent circumstances in this case which might have justified the police officers' failure to communicate the defendant's right to him. Cf. Commonwealth v. Atencio, supra. To the contrary, the police officers were well aware that the defendant did not understand that he might have an option of having some form of examination of his blood alcohol content level performed. They apparently attempted several times to explain to the defendant his right to consent to or to refuse to take a breathalyzer examination. Further, there is no evidence that the defendant was so inebriated that an attempt at compliance with...