Com. v. Troy, 94-P-182

• Decision Date: 26 May 1995
• Docket Number: No. 94-P-182,94-P-182
• Citation: 650 N.E.2d 371,38 Mass.App.Ct. 969
• Parties: COMMONWEALTH v. Edward T. TROY.
• Court: Appeals Court of Massachusetts

Page 371

650 N.E.2d 371

38 Mass.App.Ct. 969

COMMONWEALTH v. Edward T. TROY.

No. 94-P-182.

Appeals Court of Massachusetts Bristol.

Argued April 7, 1995.

Decided May 26, 1995.

Edward T. Troy, pro se.

Christopher Markey, Asst. Dist. Atty., for Com.

RESCRIPT.

The defendant appeals from his conviction of operating a motor vehicle while under the influence of intoxicating liquor. His principal claim is that the judge erred in denying his motion to dismiss based on an alleged denial of his right under G.L. c. 263, § 5A, to a prompt, independent physical examination and blood test. The evidence at the motion hearing was that the defendant was arrested in Norton at 6:15 P.M. on a Saturday evening in January; that the Norton police department's breathalyzer machine was inoperative; that the Norton police offered to drive the defendant to Mansfield to use the breathalyzer of the Mansfield police; and that the defendant refused the breathalyzer test but made known promptly (and apparently repeatedly) his desire to have a blood test. The officers told the defendant that he could have such a test if he could arrange for the appropriate medical personnel to come to the Norton police station to administer it. The defendant twice tried to telephone his wife, without reaching her. Sometime around 7:00 P.M. the police reached the defendant's wife by telephone and told her that she should not come to the station, that they were waiting for a bail commissioner to come in, and that they would telephone her when they were ready to release the defendant. The bail commissioner arrived at the station around 10:30 P.M., and the defendant was released to his wife at 10:45 P.M. They drove to Sturdy Memorial Hospital hoping to obtain a blood test, but the hospital personnel refused, indicating, according to the defendant's wife, that they would only perform such a test if it were ordered by a physician and a police officer were present.

The judge denied the motion to dismiss. Not having the benefit of the recent decisions in Commonwealth v. Hampe, 419 Mass. 514, 646 N.E.2d 387 (1995), and Commonwealth v. Priestley, 419 Mass. 678, 646 N.E.2d 754 (1995), the judge suggested that he saw nothing improper in the police officers' holding the defendant in custody until he had sobered up. With the acuity of hindsight, we can say that view was wrong; so too, the suggestion of the Norton police that the defendant's right to a prompt independent examination could be conditioned on his arranging for medical personnel to come to the lockup.

Nevertheless, the defendant has...