38 Mass. App. Ct. 968

May 25, 1995

Anna M. Lembo for the defendant.

William C. O'Malley, District Attorney, & Brian D. Griffin, Assistant District Attorney, for the Commonwealth, submitted a brief.

The defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor and leaving the scene of an accident. His appeal raises two issues.

1. Denial of motion to dismiss. The defendant was involved in a sideswiping collision with a car driven by one Catherine Bruce at 7:30 P.M. in Pembroke. Bruce followed the defendant's car a short distance to a friend's driveway. Police were called, and Officer Edward Cain, after hearing accounts of the collision and having the defendant perform field sobriety tests, arrested the defendant at 8:30 P.M. and transported him to the Pembroke police station for booking. The defendant was not released on bail until 1:15 A.M. The motion to dismiss was based on a contention that the police failed to notify the defendant, who refused a breathalyzer test, of his right under G. L. c. 263, Section 5A, to seek a prompt physical examination and blood test. The defendant's affidavit stated that, if he had been told of the right and had been bailed promptly, he would have gone to a hospital to take a blood test. The judge found that the defendant was advised of his right under G. L. c. 263, Section 5A, at the time of booking and that the police officers notified the bail commissioner of the defendant's presence at 8:45 P.M. On these facts, the motion was correctly denied. There is no finding, and the stipulated record of the evidence would not have supported such a finding, that the defendant at any point indicated to the police that he wished to avail himself of the right to a prompt blood test. See Commonwealth v. Chistolini, ante at 966, also decided this day. The defendant did testify that he repeatedly asked to be bailed, but a delay in setting bail has not been held to be a ground for dismissal except where it amounts to active obstruction of the right to a prompt blood test under Section 5A. See Commonwealth v. Hampe, 419 Mass. 514 , 518 (1995); Commonwealth v. Priestley, 419 Mass. 678 , 681 (1995).

2. Exclusion of insurance and accident records. The defendant subpoenaed Catherine Bruce's auto insurance policy and records relating to an accident she had been involved in a year before the collision with the defendant. She testified as a prosecution witness to describe the accident and the defendant's condition. The defendant began cross-examination of Bruce by asking for the subpoenaed records, but the judge excluded them as irrelevant. The judge could properly exclude records of the prior accident; they had no apparent relevance to bias or prejudice on Bruce's part, and inquiry into the circumstances of the other accident would have been collateral to the issues of the trial. While a showing that the policy did not cover collision damage to Bruce's car or that such coverage was subject to deductibles would have had relevance to bias, Bruce could have been questioned

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directly as to such facts. Indeed, the defendant was permitted by the judge to bring out the fact of Bruce's earlier accident and to inquire into her concern about her husband's reaction to her being involved in a second accident. No sufficient showing is made that the defendant was precluded from inquiring into Bruce's motives to lie.

Deciding as we do, we need not consider the likelihood that a Massachusetts jury would be unaware either that most automobile insurance policies carry deductibles or that at-fault accidents carry potential insurance premium implications (i.e., loss of good driving credits, or surcharges, see G. L. c. 175, Section 113B).

Judgment affirmed.