COMMONWEALTH vs. MANUEL M. ANDRADE.

HENNESSEY, C.J. The defendant was arrested and charged in two complaints with operating a motor vehicle while under the influence of intoxicating liquor and operating a

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motor vehicle the wrong way on a one-way street. He claimed his right to a trial by jury in the first instance, and filed a motion to dismiss the charges pending against him on the grounds that the alleged rights afforded him under G. L. c. 263, Section 5A, and G. L. c. 90, Section 24 (1) (e), had been violated and that these violations denied him certain constitutional rights. A District Court judge reported, without decision, various questions of law to the Appeals Court. We transferred the case to this court on our own motion.

Essentially, the judge has reported the questions: (1) Was the defendant denied rights under G. L. c. 90, Section 24, or G. L. c. 263, Section 5A? (2) If he was denied such rights, what should the remedy be in the circumstances of this case? We first determine that the police officers' actions did not violate the defendant's statutory rights under G. L. c. 90, Section 24 (1) (e). We further conclude, however, that the police officers' failure to inform the defendant of his right to request an independent physical examination at his own expense violated the defendant's rights under G. L. c. 263, Section 5A. We determine that, absent overwhelming evidence of guilt, dismissal of the complaint for driving a motor vehicle while under the influence of intoxicating liquor would be an appropriate remedy in this case for this violation of the defendant's statutory rights under G. L. c. 263, Section 5A.

The District Court judge found the following facts. After being arrested on December 31, 1981, the defendant was brought to the Cambridge police station at approximately 1 A.M. for booking. The booking procedure was videotaped and replayed for the judge. It demonstrated that the police officers attempted to obtain the defendant's consent or refusal to a breathalyzer examination in accordance with G. L. c. 90, Section 24 (1) (e). The defendant did not respond to the inquiries and explanations of the police officers. The defendant is a native of the Azores, and his capacity to understand the English language is "marginal at best." Consequently, the defendant did not understand the police officers when they attempted to obtain his consent or refusal to take the breathalyzer examination in accordance with

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G. L. c. 90, Section 24 (1) (e). The police officers, nevertheless, deemed his failure to respond to be a refusal to take a breathalyzer examination. Furthermore, the police officers made no attempt to advise the defendant of his right under G. L. c. 263, Section 5A, to request an independent physical examination at his own expense. A copy of G. L. c. 263, Section 5A, with a Portuguese translation, was posted on the wall of the police station, but no one directed the defendant's attention to the posting. The defendant was unaware of his right to request an independent physical examination.

1. We conclude that no rights of the defendant under G. L. c. 90, Section 24, have been violated in this case. In Commonwealth v. Alano, 388 Mass. 871, 875 (1983), we recently determined that G. L. c. 90, Section 24 (1) (e), "does no more than regulate the admissibility and effect of chemical tests of blood alcohol content." We stated: "If the police administer a blood alcohol content test, the section imposes certain requirements which must be met if the test is to be admissible on the issue whether the defendant was intoxicated. It does not establish a right to a police administered test." Id. Thus, the police officers had no statutory duty to ask the defendant whether he desired to consent to or to refuse to take a breathalyzer examination because they had no statutory duty to administer such a test. Id. It follows that the police officers' unsuccessful attempts to inquire of the defendant whether he desired to consent to or to refuse to take a breathalyzer examination similarly did not violate any rights of the defendant under G. L. c. 90, Section 24 (1) (e).

2. The defendant next argues that the police officers' failure to inform him of his right, under G. L. c. 263, Section 5A, to an independent examination at his expense, violated G. L. c. 263, Section 5A, and warrants dismissal of the complaint. General Laws c. 263, Section 5A, as appearing in St. 1960, c. 237, provides: "A person held in custody at a police station or other place of detention, charged with operating a motor vehicle while under the influence of intoxicating liquor, shall have the right, at his request and at his expense, to be examined immediately by a physician selected by him.

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The police official in charge of such station or place of detention shall inform him of said right immediately upon being booked, and shall afford him a reasonable opportunity to exercise it. Such person shall, immediately upon being booked, be given a copy of this section unless such a copy is posted in the police station or other place of detention in a conspicuous place to which such person has access." It is undisputed that the police officers did not attempt in any fashion to inform the defendant of his right to an independent examination under this section. Indeed, although a Portuguese translation of the provision was posted on the wall of the police station, no one attempted to bring it to the attention of the defendant. We think it is clear that the defendant's statutory rights were violated in this case.

The statute, however, is silent as to the remedy for violations of its provisions. The Commonwealth contends that the Legislature has already addressed this issue and has indicated that dismissal of the complaint is not an appropriate remedy. Prior to 1960, G. L. c. 263, Section 5A, ended with the sentence providing that the police official in charge of the station where the defendant is held should inform the defendant of his right and allow a defendant reasonable opportunity to exercise that right. St. 1958, c. 401. In 1960, the Legislature added the sentence requiring the police either to provide a defendant with a copy of G. L. c. 263, Section 5A, or to post a copy of it in a conspicuous place. The Commonwealth notes that the Legislature had considered a draft bill which did not contain the sentence requiring a copy of G. L. c. 263, Section 5A, to be posted, but rather included the following provision: "If such police official fails to advise the accused of his rights as aforesaid, the complaint arising out of such arrest shall be dismissed on motion made by the accused." 1960 House Doc. No. 2401. The Commonwealth urges that the Legislature's failure to enact this version indicates that the only "remedy" under G. L. c. 263, Section 5A, is that a copy of the section be posted or be given to a defendant. This contention is without merit. The

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requirement that a defendant either be provided with a copy of G. L. c. 263, Section 5A, or that one be posted is not a remedy at all, but rather is another statutory right. The Legislature's creation of this additional right evinces the Legislature's concern that defendants be adequately informed of their right to an independent examination.

The Commonwealth further suggests, however, that the Legislature's failure to enact the draft bill, providing for dismissal of a complaint where the police do not inform a defendant of his right to an independent examination, demonstrates that the Legislature does not approve of dismissal of a complaint as an appropriate remedy. We do not think that this inference can be drawn from the Legislature's failure to enact this provision. To preclude dismissal of a complaint as a remedy would contravene the Legislature's clear concern with protecting a defendant's right to an independent examination under this section. It is more consistent with legislative intent to conclude that the Legislature chose to leave the task of shaping the appropriate remedies for violations of this section to the courts. Dismissal of a complaint may not be an appropriate or necessary remedy in all cases. Cf. Commonwealth v. Atencio, 12 Mass. App. Ct. 747, 750 (1981) (where defendant was injured in automobile accident and brought to hospital and where police officers were involved with exigent circumstances, failure of police to inform defendant of his right to independent examination did not require suppression of evidence obtained by police). Rather, each case must be considered on its own set of facts and a remedy adequate to cure potential or actual prejudice resulting from a violation of G. L. c. 263, Section 5A, should be allowed.

Turning to the facts of the case at bar, it appears that dismissal of the complaint for operating a motor vehicle while under the influence of intoxicating liquor may be an appropriate remedy. The police officers made no attempt to inform the defendant of his right under G. L. c. 263, Section 5A, to an independent examination, even though there was a Portuguese translation of the statute that could easily

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have been shown to him. There were no exigent circumstances in this case which might have justified the police officers' failure to communicate the defendant's right to him. Cf. Commonwealth v. Atencio, supra. To the contrary, the police officers were well aware that the defendant did not understand that he might have an option of having some form of examination of his blood alcohol content level performed. They apparently attempted several times to explain to the defendant his right to consent to or to refuse to take a breathalyzer examination. Further, there is no evidence that the defendant was so inebriated that an attempt at compliance with Section 5A would have been futile. Compare id. at 750 n.3. There is also no indication that the defendant was belligerent or otherwise so unwilling or unable to cooperate as to justify the failure to comply with G. L. c. 263, Section 5A.

The Commonwealth argues that the defendant has not demonstrated that he was prejudiced by the police officers' failure to comply with G. L. c. 263, Section 5A. We do not think, however, that the defendant should be required to make this proof. See Garcia v. District Court, 21st Judicial Dist., 197 Colo. 38, 46 (1979), citing United States v. Bryant, 439 F.2d 642, 652 n.21 (D.C. Cir. 1971) ("It is not necessary for a defendant to demonstrate that the evidence he seeks to discover, but which is no longer available for examination by the court, would have been favorable to him . . . so long as that evidence is not merely `incidental' to the prosecution's case or to the defendant's affirmative defense . . . . It is sufficient that the material requested `might' be `favorable' to the accused" [citations omitted]). In the case at bar, a chemical test of blood alcohol content by a physician may have provided exculpatory evidence for the defendant. Moreover, in this case no chemical test was ever performed and, thus, the only evidence of the Commonwealth on the issue of the defendant's intoxication is the testimony of the police officers. This increases the likelihood that the defendant may have been prejudiced by the police officers' failure to comply with G. L. c. 263, Section 5A. See In re

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Newbern. 175 Cal. App. 2d 862, 865 (1959), quoting People v. Duroncelay, 48 Cal. 2d 766, 772 (1957) ("The accuracy of blood tests for the purpose of determining intoxication has been recognized in many courts. . . . [Whereas] the accounts of eyewitnesses are often uncertain and conflicting on the issue of intoxication . . .").

The Commonwealth also urges that dismissal of the complaint is an extreme sanction and is not warranted in this case. The Commonwealth contends that we have approved dismissal of a complaint as an appropriate remedy only where there has been deliberate or intentional misconduct on the part of the police, see Commonwealth v. Manning, 373 Mass. 438, 443 (1977), or where the action of the police "is so unfair that any prosecution of the defendant would raise due process considerations." Commonwealth v. Garrett, 14 Mass. App. Ct. 953, 954 (1982). See Commonwealth v. Best, 381 Mass. 472, 483-486 (1980). The Commonwealth urges that a mere statutory violation, absent intentional or deliberate misconduct, does not warrant, by itself, dismissal of a complaint. [Note 1] We note that in Commonwealth v. Bouchard, 347 Mass. 418, 420-421 (1964), we indicated that a violation of a defendant's statutory rights under G. L. c. 276, Section 33A, should not result in dismissal of an indictment. General Laws c. 276, Section 33A, as amended through St. 1963, c. 212, provides: "The police official in charge of the station or other place of detention having a telephone wherein a person is held in custody, shall permit the use of the telephone, at the expense of the arrested person, for the purpose of allowing the arrested person to communicate with his family or friends, or to arrange for release on bail, or to engage the services of an attorney. Any such person shall be informed forthwith upon his arrival at such station or place of detention, of his right to use the telephone, and such use shall be permitted within one hour thereafter."

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In considering an appropriate remedy for a police officer's failure to inform a defendant of this right, we indicated that if the defendant "had made any admissions, confessed, or disclosed a lead to the discovery of unfavorable evidence," exclusion of such evidence might be appropriate remedy. Id. at 420-421. We stated, however, that a violation of the statute "should not entitle the defendant to a directed verdict of acquittal." Id. at 421. See Commonwealth v. Jones, 362 Mass. 497, 502-504 (1972); Commonwealth v. McGaffigan, 352 Mass. 332, 336 (1967).

We think, however, that our reasoning in Bouchard is not controlling in the case at bar. In enacting G. L. c. 263, Section 5A, the Legislature clearly recognized that the "essence of the offence of operating a motor vehicle while under the influence of intoxicating liquor is the condition of the defendant at the time" (emphasis in original). Commonwealth v. Mangan, 293 Mass. 531, 533 (1936). Thus, G. L. c. 263, Section 5A, creates a right to obtain evidence that is available for only a short period of time and also seeks to protect this right by requiring that the defendant be informed of its existence. In contrast, G. L. c. 276, Section 33A, is not primarily concerned with ensuring access to evidence which has a short period of availability. Consequently, while suppression of unfavorable evidence is an appropriate remedy for violations of a defendant's rights under Section 33A, suppression of evidence will not always be an effective remedy for a violation of a defendant's rights under G. L. c. 263, Section 5A, since a violation of Section 5A may actually prevent exculpatory evidence from being revealed. For example, in this case, the police officers did not conduct a breathalyzer examination. Therefore, there is no unfavorable evidence to suppress. [Note 2] Nevertheless, the defendant might still be unfairly prejudiced by the police officers' violation of his Section 5A rights because, had an independent

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examination been conducted, evidence which exculpated him may have emerged.

We recognize, however, that the Legislature's intention of protecting an individual's right to obtain potentially exculpatory evidence would not be served by requiring dismissal of a complaint in a case where there was overwhelming evidence that the defendant was operating a motor vehicle under the influence of intoxicating liquor. If such persuasive evidence existed in this case apart from the officers' testimony (as shown on videotape, for example), it could fairly be said that the defendant was not prejudiced by the police officers' violation of G. L. c. 263, Section 5A. The record submitted to us does not reveal the nature of the evidence regarding the defendant's state of intoxication. Accordingly, the proper course in this case is to remand the case to the District Court for findings, and a hearing if necessary, [Note 3] as to whether there is sufficient evidence of intoxication to negate any substantial possibility that the defendant was prejudiced by the police officers' failure to inform him of his right under G. L. c. 263, Section 5A, to an independent examination. If such persuasive evidence is shown, the complaint should not be dismissed, and the case should be set for trial. [Note 4]

So ordered.