Com. v. Hampe

• Citation: 419 Mass. 514,646 N.E.2d 387
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Decision Date: 17 February 1995
• Parties: COMMONWEALTH v. Frederick H. HAMPE.

Page 387

646 N.E.2d 387

419 Mass. 514

COMMONWEALTH v. Frederick H. HAMPE.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 8, 1994.

Decided Feb. 17, 1995.

Lincoln S. Jalelian, Asst. Dist. Atty., (Sabita Singh, Asst. Dist. Atty., with him) for Com.

Peter W. Gubellini, Wellesley Hills, for defendant.

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

LIACOS, Chief Justice.

A judge of the District Court sitting in the jury-of-six session reported the following two questions to the Appeals Court pursuant to Mass.R.Crim.P. 34, 378 Mass. 905 (1979): "(1) Whether it is a violation of statutory or [c]onstitutional rights for an individual who is arrested ... for operating under the influence of alcohol when courts are not in session to be denied access to a bail commissioner and held over night; and (2) [i]f so, is the proper remedy dismissal of the charge?" ¹ We transferred the case here on our own motion. Our responses to these questions are: Question 1, "Yes, it is a violation of statutory rights"; Question 2, "Not necessarily."

We summarize the relevant facts found, after hearing, by the District Court judge. At approximately 2:30 A.M. on February 14, 1992, Officer Mark Alonzi of the Weston police, in response to a radio broadcast regarding a possible larceny in the area, stopped an automobile being operated by the defendant. Just prior to hearing this broadcast, Alonzi observed the defendant's vehicle to be proceeding without its headlights illuminated. During the course of questioning the defendant, Alonzi noticed that the defendant's eyes were red and bloodshot, that his speech was slurred, and that there was an odor of alcohol on his breath. The defendant consented to performing three field sobriety tests, all of which, in Alonzi's opinion, the defendant failed.

Officer Alonzi placed the defendant under arrest and brought him to the Weston police station. During the ride to the police station, the defendant was belligerent, sarcastic, and offensive toward the officer. The judge found, based on the testimony of Alonzi and another police officer, that this behavior of the defendant was not unusual for an individual arrested for operating under the influence of intoxicating liquor.

At the police station, Officer Francis Hines, the officer in charge of the shift, informed the defendant of his Miranda rights; his right to use the telephone, G.L. c. 276, § 33A (1992 ed.); his right to take a breathalyzer test, G.L. c. 90, § 24(1) (e ) (1992 ed.); and his right to obtain an independent blood test, G.L. c. 263, § 5A (1992 ed.). The defendant consented to a breathalyzer test. That test was administered twice and the results were 0.11 and 0.12 per cent, respectively.

The defendant expressed a desire to obtain an independent blood test pursuant to G.L. c. 263, § 5A, and an interest in being released as quickly as possible. ² The defendant was given a telephone and a telephone book and was observed to be looking up hospital telephone numbers. It is unclear whether the defendant made any telephone calls at that time.

Despite the defendant's request to be released on bail, none of the Weston police officers called a bail commissioner, nor does it appear that the defendant was allowed to make such a call. Officer Hines decided that the defendant was not in a condition to be released and needed to "sleep it off." The defendant was placed in a holding cell where he fell asleep. At approximately 8:30 A.M., he was brought to the Waltham District Court for arraignment. He was then released by the court. Later that day, the defendant underwent an independent blood test, but by that time any alcohol in his system would have been metabolized.

1. Access to bail commissioner. The District Court judge determined that the defendant's statutory and constitutional rights to have his bail considered were violated, relying on G.L. c. 276, §§ 42 and 58, the Eighth Amendment to the United States Constitution, and art. 26 of the Declaration of Rights of the Massachusetts Constitution.

For the purposes of this case, we need not explore the extent of a constitutional right to be considered for bail under the Eighth Amendment, or art. 26, the provisions on which the judge below based, in part, his decision. To reach our conclusion in affirmative response to the first reported question, we need only consider the statutory scheme which provides an arrested party the statutory right to prompt release on bail, see G.L. c. 276, §§ 42, 57, 58, ³ and his statutory right to an independent blood test under G.L. c. 263, § 5A. In doing so, we are mindful of our duty to consider these statutes as part of a statutory scheme which we ought harmonize so as to give full effect to the expressed intent of the Legislature. See Commonwealth v. Lightfoot, 391 Mass. 718, 720, 463 N.E.2d 545 (1984); Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514, 333 N.E.2d 450 (1975). These statutory rights, considered together, lead us to conclude that, in order for G.L. c. 263, § 5A, to have its intended force and effect, ⁴ it must be read as requiring the police to telephone a bail commissioner or to allow the defendant to do so in circumstances such as those present here.

General Laws c. 276, § 58 (1992 ed.), provides, in relevant part, that "a bail commissioner ... shall, when a prisoner is held under arrest or committed either with or without a warrant for an offense ... hold a hearing in which the defendant and his counsel, if any, may participate and inquire into the case and shall admit such person to bail on his personal recognizance without surety unless said ... bail commissioner ... determines, in the exercise of his discretion ... that such a release will not reasonably assure the appearance of the prisoner before the court" (emphasis supplied). Rule 14 of the Superior Court Rules Governing Persons Authorized to Take Bail (1991) provides, in relevant part, that "all persons authorized to take bail are entitled to participate fairly in the out-of-court bailing activity in their jurisdiction so long as they are willing and able to respond with all reasonable promptness to calls for their services" (emphasis supplied).

As the above quoted paragraph of G.L. c. 276, § 58, demonstrates, an arrestee must be released on bail without surety unless there is a risk that he will not appear in court. To assist in this process, individuals are appointed as bail commissioners, and those individuals are permitted to participate in bail activity as long as they are ready, willing and able to do so with all promptness. Part of the responsibility of a bail commissioner is, as rule 14 provides, "to respond with all reasonable promptness to calls for their services." This requirement is clearly within the knowledge of police officers.

General Laws c. 263, § 5A, confers on a defendant the right to a reasonable opportunity to obtain his own evidence regarding his alleged intoxication. Commonwealth v. Andrade, 389 Mass. 874, 881, 453 N.E.2d 415 (1983). Commonwealth v. Marley, 396 Mass. 433, 443, 486 N.E.2d 715 (1985) (Liacos, J., concurring). ⁵ This evidence, obtained through an independent blood or breath test, is extremely fleeting and thus time is of the essence in obtaining the requisite testing. Andrade, supra. See G.L. c. 263, § 5A (statute confers right to be examined immediately and defendant must be informed of this right immediately). However, the "statute places primary responsibility for an independent blood test in the hands of the defendant, not the police." Commonwealth v. Lindner, 395 Mass. 144, 148, 478 N.E.2d 1267 (1985).

It is true that the police have no obligation to assist the defendant in obtaining a medical examination. Commonwealth v. Ames, 410 Mass. 603, 608, 574 N.E.2d 986 (1991). Commonwealth v. Rosewarne, 410 Mass. 53, 55, 571 N.E.2d 354 (1991). Commonwealth v. Alano, 388 Mass. 871, 879, 448 N.E.2d 1122 (1983). Nevertheless, the police may not prevent or hinder the defendant's reasonable and timely attempt to obtain such an examination. Rosewarne, supra 410 Mass. at 55, 571 N.E.2d 354. Alano, supra 388 Mass. at 879, 448 N.E.2d 1122. Furthermore, the "reasonable opportunity" which the statute compels the police to afford to a defendant will depend on the particular circumstances of the case. Alano, supra at 879-880, 448 N.E.2d 1122.

In Rosewarne, the defendant telephoned a local hospital from a State police barracks to arrange for a blood test. Id. at 54, 571 N.E.2d 354. The hospital employees would not go to the barracks to administer the test and the police would not transport the defendant to the hospital. The defendant's girl friend then telephoned the barracks to arrange the defendant's release on bail. She was informed that it would not be possible. Id. Although it was unclear in Rosewarne whether the judge dismissed the complaint because of the police refusal to transport the defendant or because of their refusal to arrange bail, we noted that "[i]f the police did in fact obstruct the defendant's attempts to get released on bail, his c. , § 5A, rights were violated." Rosewarne, supra 410 Mass. at 55, 571 N.E.2d 354.

The Legislature has expressed clearly its concern that the right of a defendant to an independent examination under this section be protected. Andrade, supra 389 Mass. at 878, 453 N.E.2d 415. While the police do not have to help the defendant by transporting him to a hospital, it remains true that, absent exigent circumstances, the police should telephone a bail commissioner or other authorized person, when courts are not in session, to facilitate a defendant's release in a timely fashion, or at least to allow him to make his own arrangements for a hearing on bail. The police should advise the defendant of this right at the time of booking. For us to require anything less would repeal this statute, in effect.

In determining whether the police...