Com. v. King

• Citation: 706 N.E.2d 685,429 Mass. 169
• Parties: COMMONWEALTH v. Tyson KING.
• Decision Date: 05 March 1999
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 685

706 N.E.2d 685

429 Mass. 169

COMMONWEALTH v. Tyson KING.

Supreme Judicial Court of Massachusetts Berkshire.

Argued Feb. 1, 1999.

Decided March 5, 1999.

Christopher J. Walsh, Assistant District Attorney, for the Commonwealth.

Robert J. Carnes, Pittsfield, for the defendant.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.

FRIED, J.

The defendant was charged with driving while under the influence of alcohol. He moved to dismiss the charge, alleging a violation of his right to an independent medical examination under G.L. c. 263, § 5A. The motion judge granted the motion. The Commonwealth appealed. We transferred the case here on our own motion and now remand for further proceedings consistent with this opinion.

I

Shortly after midnight, a State trooper saw the defendant driving erratically and, after following him for a while, stopped him. While speaking with the defendant, the trooper noticed that his speech was slurred and that there was an odor of alcohol coming from his vehicle. The trooper then asked the defendant to step out of his vehicle to perform a series of field sobriety tests. The defendant admitted that he had had something to drink that evening. He had some difficulty performing various sobriety tests, skipping and transposing some letters on the alphabet test, skipping some numbers and counting too far on the "count backwards" test, and losing his balance during the one-legged stand. The trooper concluded that the defendant was intoxicated, arrested him, and transported him to the State police barracks.

At the barracks, an inventory of the defendant's possessions showed that he had with him $465 in cash. The defendant was informed shortly after 1 A.M. of his Miranda rights and of his rights to make a telephone call, take a breathalyzer test, and have an independent medical examination. He refused to sign a form acknowledging that he had been informed of these rights, refused the blood test offered by the police, and refused to take a breathalyzer test. He did, however, inform the police that he wished to exercise his right to an independent medical examination. He also exercised his right to use the telephone and asked his father to come to the barracks for him. The trooper stood nearby during this telephone call and heard what the defendant said. The defendant's father did come to the barracks, but was denied access to his son. Neither the defendant nor the police had told the father that the defendant had asked for an independent medical examination. About twenty-five minutes after the defendant arrived at the barracks, the desk officer at the barracks called a clerk-magistrate ¹ to arrange a bail hearing. The desk officer told the magistrate that the defendant had been arrested for driving while under the influence and told him that he smelled of alcohol and that he had bloodshot eyes and slurred speech. The magistrate declined to come to the barracks to hold a bail hearing at that time and told the police to hold the defendant until the morning. The magistrate made this decision according to his policy of holding until morning defendants arrested for driving while under the influence who had refused to take a breathalyzer test. The defendant was finally released at approximately 8:40 A.M.

The defendant filed a motion to dismiss the complaint, alleging a deprivation of his right to a prompt bail hearing and of his right to an independent medical examination under G.L. c. 263, § 5A. ² The motion judge granted this motion, finding that the police had informed the defendant of his right to such an examination and that the defendant had told the police of his intention to exercise it, but that the clerk-magistrate had been remiss in refusing to hold a bail hearing according to G.L. c. 276, § 58. This prevented the defendant from exercising his right under § 5A.

The Commonwealth appealed from the dismissal of the charges against the defendant, arguing that dismissal was inappropriate because the police fulfilled their obligations under G.L. c. 263, § 5A, and under G.L. c. 276, §§ 57-58, which concerns a defendant's right to a bail hearing.

II

In most of the cases in which a defendant moves for dismissal due to a G.L. c. 263, § 5A, violation, the defendant's primary allegation is that his rights have been violated by police conduct, either by their failure to apprise him of his rights under that section or by their active hindrance of his exercise of those rights. In this case, by contrast, the primary allegation is that the defendant's rights were violated by the clerk-magistrate, who declined to come to the police barracks to hold a bail hearing immediately on being notified by the police of the defendant's arrest and detention.

It is undisputed that the police informed the defendant of his right to an independent medical examination, as they are required to do by § 5A. As the defendant recognizes, once the police have fulfilled their duty to inform a defendant of his right under § 5A, they have no obligation to help him in exercising that right. See Commonwealth v. Hampe, 419 Mass. 514, 520, 646 N.E.2d 387 (1995); Commonwealth v. Alano, 388 Mass. 871, 876-877, 448 N.E.2d 1122 (1983); Commonwealth v. McIntyre, 36 Mass.App.Ct. 193, 202, 204, 629 N.E.2d 355 (1994). Rather, the statute places on the defendant the responsibility of availing himself of that right once told of it. See Commonwealth v. Finelli, 422 Mass. 860, 862, 666 N.E.2d 144 (1996). If he does not do so, he cannot later seek dismissal of the charges against him based on a violation of § 5A, because there has been no violation of that right. In this case, the motion judge specifically found that the defendant asserted his right to an independent medical examination. Although the Commonwealth asserts in its brief that the defendant did not attempt to exercise this right, we defer to the motion judge's finding of fact in the absence of clear error. See Commonwealth v. Magee, 423 Mass. 381, 384-385, 668 N.E.2d 339 (1996), and cases cited.

Although the police were not required to assist the defendant in exercising his rights and thus were not, for example, required to transport him to the hospital for administration of a blood alcohol test or to arrange for a physician to travel to the police station, see Commonwealth v. Hampe, supra at 521, 646 N.E.2d 387; Commonwealth v. Rosewarne, 410 Mass. 53, 54-55, 571 N.E.2d 354 (1991); Com v. Alano, supra; Commonwealth v. McIntyre, supra at 204, 629 N.E.2d 355, they were obligated to afford the defendant a "reasonable opportunity" to exercise his right to an independent medical examination, see Commonwealth v. Ames, 410 Mass. 603, 606, 574 N.E.2d 986 (1991); Commonwealth v. McIntyre, supra at 203, 629 N.E.2d 355, and were forbidden from impeding his exercise of that right, see Commonwealth v. Alano, supra at 876-877, 448 N.E.2d 1122. The defendant argues that the police in fact interfered with his exercise of the right to an independent examination by failing, when they called the clerk-magistrate, to inform him that the defendant had money on his person, that his father was coming to pick him up, or that he was exercising his right to an independent medical examination. He argues further that the clerk-magistrate also violated his § 5A right by failing to conduct a bail hearing with reasonable promptness, which prevented him from obtaining an independent medical examination. With respect to § 5A, as is discussed below, the crucial question is whether a defendant's right to an independent medical examination has been violated, and not who violated it.

The right to a prompt bail hearing intersects with the § 5A right, see Commonwealth v. Finelli, supra; Commonwealth v. Chistolini, 422 Mass. 854, 858, 665 N.E.2d 994 (1996): a defendant ordinarily will be unable to exercise his right to an independent medical examination without being promptly released to bail. Normally, a defendant must go to a hospital if he wishes an independent medical examination because of the difficulty of finding medical personnel willing to come to a police station to draw blood for a blood test. See Finelli, supra at 861, 666 N.E.2d 144. And this usually means that the defendant will have to be released from custody, as the police have no obligation to transport him to the hospital for the blood test, see Commonwealth v. Hampe, supra at 521, 646 N.E.2d 387; Commonwealth v. Rosewarne, supra at 54, 571 N.E.2d 354; Commonwealth v. Alano, supra at 876-877, 448 N.E.2d 1122; Commonwealth v. McIntyre, supra at 204, 629 N.E.2d 355, and normally refuse to do so, see, e.g., Rosewarne, supra at 54, 571 N.E.2d 354 (defendant telephoned hospital to arrange test but police refused to transport him); McIntyre, supra at 201, 629 N.E.2d 355 (police refused to transport defendant to hospital four blocks away). Because the evidence that may be obtained through the blood test is fleeting, such a test must be conducted promptly; thus, the bail hearing must be conducted promptly. Where the clerk-magistrate refuses to conduct a prompt bail hearing, the arrestee's right to an independent medical examination is necessarily frustrated.

There was no permissible ground for the clerk-magistrate's refusal to hold a bail hearing for the defendant promptly on being notified of the defendant's arrest. Cf. Commonwealth v. Troy, 38 Mass.App.Ct. 969, 970, 650 N.E.2d 371 (1995) (motion judge's view that there was "nothing improper in the police officers' holding the defendant in custody until he had sobered up" was "wrong"). He declined to come to the barracks to conduct a bail hearing according to a "policy" of his own, pursuant to which he asked the police whether a detainee had submitted to a breathalyzer test and, if not, what was the officer's opinion of the detainee's state of intoxication. He would then instruct the police to hold until morning those detainees who had refused to take...