38 Mass. App. Ct. 966

May 24, 1995

Marcia B. Julian, Assistant District Attorney, for the Commonwealth.

Peter M. Dempsey for the defendant.

The defendant was arrested for operating a motor vehicle while under the influence of intoxicating liquor and was booked beginning at 1:26 A.M. and continuing to sometime between 2:00 A.M. and 2:15 A.M. The defendant then telephoned a friend who had experience with such matters to discuss breathalyzer and blood tests, after which the defendant declined to take a breathalyzer test. The defendant sought prompt release but was told that the bail commissioner was called at particular times and that, after his

Page 967

2:00 A.M. call, he would not be called again until 6:00 A.M. The booking sergeant also told the defendant that the policy of the department, in driving-under-the-influence cases, was to hold the defendant for four hours before calling the bail commissioner. The bail commissioner was called at 6:00 A.M. and the defendant was released at 7:18 A.M. He talked with his friend, who had come to the station at some unspecified earlier time, about taking a blood test, but they decided that too much time had gone by for such a test to be meaningful. There is no evidence that the defendant had told the police at any time that he wished to obtain a blood test or even that he had formed such an intention.

Our reading of Commonwealth v. Hampe, 419 Mass. 514 (1995), suggests that the judge erred in allowing the defendant's motion to dismiss. In Hampe, a defendant arrested for operating while under the influence sought release on bail for the express purpose of obtaining a prompt, independent blood test, as was his right under G. L. c. 263, Section 5A. The Hampe decision held "that, in order for G. L. c. 263, Section 5A, to have its intended force and effect, 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." Commonwealth v. Hampe, 419 Mass. at 518. The policy of the police in Hampe to require the defendant to "sleep it off" (id. at 517) before contacting a bail commissioner was held to be a deliberate (however well intentioned) obstruction of the defendant's release on bail. Id. at 521. Because of the "extremely fleeting" nature of blood alcohol evidence, id. at 520, the policy of delay was held to be tantamount in the circumstances to active obstruction of the defendant's right under Section 5A to seek an immediate, independent physical examination and blood test. See Commonwealth v. Rosewarne, 410 Mass. 53 , 55-56 (1991). Contrast Commonwealth v. Priestley, 419 Mass. 678 , 681-682 & n.4 (1995), where the court suggested that a mere failure to advise the defendant that he could make contact with the bail commissioner himself would fall short of obstructing the defendant's exercise of his rights under Section 5A.

Unlike the defendants in Rosewarne, Hampe, and Priestley, the defendant here at no point informed the police that he wished to exercise his right under Section 5A to an immediate independent physical examination or blood test. Those decisions, as we read them, do not call for dismissal simply for a delay in release on bail, but rather for the obstruction of the defendant's right to prompt independent testing under Section 5A. Commonwealth v. Hampe, 419 Mass. at 520, 521. This defendant, not having asserted such a right, is not entitled to have the charge against him dismissed.

Order dismissing complaint reversed.