COMMONWEALTH vs. BRIAN T. CHISTOLINI

LIACOS, C.J. Early on the morning of July 25, 1992, a Westfield police officer arrested the defendant, Brian T. Chistolini, for operating a motor vehicle while under the influence of intoxicating liquor (OUI). At the police station, the book-

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ing officer properly provided Miranda warnings, informed Chistolini of the right to use a telephone, G. L. c. 276, s. 33A (1994 ed.), and gave proper notice of the right to an independent physical examination pursuant to G. L. c. 263, s. 5A (1994 ed.). At the station the defendant was given a field sobriety test. He was largely successful in performing that test. [Note 1] Chistolini telephoned a friend to obtain advice regarding the wisdom of taking breathalyzer and blood tests. He refused the breathalyzer test and made no request for a blood test, but asked about bail.

The Westfield police have an established policy regarding release on bail for persons arrested during the night. The police officer telephones the bail commissioner in four-hour intervals at 10 P.M., 2 A.M., and at 6 A.M. [Note 2] The commissioner comes to the station thereafter to bail any persons in custody. In Chistolini's case, police completed booking sometime around 2 A.M.

Chistolini filed a pretrial motion to dismiss. He advanced three theories: (1) that the delay in procuring him a bail hearing violated his statutory right to a reasonably prompt bail hearing; (2) that the delay impermissibly interfered with his right to obtain an independent physical examination; and (3) that the delay violated his due process rights by preventing the gathering of potentially exculpatory evidence by an independent physical examination. The judge, having made written findings of fact, allowed the motion without specifying which violation (or combination thereof) supported that remedy. The Appeals Court reversed, Commonwealth v. Chistolini, 38 Mass. App. Ct. 966 (1995), and we granted the defendant's application for further appellate review. We address each possible basis for that ruling and reverse the allowance of the motion to dismiss.

1. The first contention is that the delay in arranging for a

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bail hearing violated Chistolini's rights conferred by the bail statute, G. L. c. 276, s.s. 42, 57, 58 (1994 ed.). The argument is two fold, initially claiming that police policy resulted in an improper delay before the bail hearing. Yet the statute sets no time limits. Rule 14 of the Superior Court Rules Governing Persons Authorized to Take Bail (1991) only prescribes that clerk-magistrates and bail commissioners respond to requests for hail "With all reasonable promptness." [Note 3] Cf. G. L. c. 276, s. 57 (requiring persons taking bail to act in accordance with rules "established by the supreme judicial court or the superior court"). Also, G. L. c. 276, s. 58, sets no express time limit within which a bail hearing must be held.

We recently created a "safe harbor" for postarrest police interrogation, Commonwealth v. Rosario, ante 48, 56 (1996) (discussing a safe-harbor rule to implement Mass. R. Crim. P. 7 [a] 1, as amended, 397 Mass. 1226 [1986]). See Commonwealth v. Perito 417 Mass. 674, 679-680 (1994) (construing together bail statute and rule 7 [a] 1). The bright-line six-hour limit on police questioning arguably is suggestive of the permissible outer limit of confinement. [Note 4] Chistolini obtained his release six hours and six minutes after his arrest. [Note 5] Considering the fact that Chistolini was given the right to make a telephone call and chose not to call a lawyer or a

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bail magistrate but to call a friend for advice, we cannot conclude the police interfered with his right to a more prompt bail hearing. See Commonwealth v. Priestley, 419 Mass. 678, 681 (1995); Commonwealth v. Hampe, 419 Mass. 514 (1995). [Note 6]

Rule 28 of the Superior Court Rules Governing Persons Authorized to Take Bail (1991) requires that persons admitted to bail understand the nature of bail and any conditions of release. Additionally, police need not commence interrogation while the detainee is "incapacitated because of a self-induced disability." Rosario, supra at 56-57 (safe harbor tolled during such period). Intoxication could impair the detainee's understanding of the bail proceeding, and could therefore be a justifiable basis for extending the reasonable time delay before police must call or allow a defendant to call a clerk-magistrate or a bail commissioner. Rules 19 and 28 of the Rules Governing Persons Authorized to Take Bail, supra, require that bail release proceedings be conducted with solemnity and that persons admitted to bail understand the nature of bail and any conditions of release.

Chistolini contends, however, that an independent judicial officer should have to determine whether bail should be delayed based on intoxication, and that it is improper for police policy to delay a bail hearing on such grounds. The judge's findings do not show any police interference with the defendant's right to make a telephone call. We note also that implicit in the tolling of the safe-harbor period because of intoxication is the ability of police themselves to make that determination, subject to subsequent judicial review. We discern no reason for bail practices, which also concern the period before the detainee's first contact with a judicial officer, to be any different. Police will quite often, as they did here, videotape the booking, giving the judiciary ample basis to review subsequently a police determination as to the arrestee's intoxication. For these reasons, there was no violation of Chistolini's statutory rights.

2. Chistolini asserts that the delay of the bail hearing had the practical result of impairing his rights pursuant to G. L. c. 263, s. 5A. See Commonwealth v. Priestley, supra at 681 (police must either call bail commissioner or advise arrestee

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of opportunity to arrange bail in order to facilitate release, thereby providing reasonable opportunity for § 5A examination). See also Hampe, supra at 520, citing Commonwealth v. Rosewarne, 410 Mass. 53, 55-56, 571 N.E.2d 354 (1991). Thus, the right to a prompt bail hearing, which is the method of obtaining release from custody, "intersects" with § 5A rights. See, e.g., Rosewarne, supra at 55-56 (interference with release on bail might violate § 5A rights).

However, for the intersection of medical examination and bail rights to occur, Chistolini must have properly preserved his § 5A rights. He did not do so, for he did not request an independent examination, as the statute requires. See Commonwealth v. Finelli, post 860 (1996). [Note 7]

3. Chistolini's final argument is that the police interfered with his ability to obtain an independent medical examination that may have produced exculpatory evidence. This, he argues, violated his right to due process of law. We note that there is within Federal due process principles "what might loosely be called the area of constitutionally guaranteed access to evidence" California v. Trombetta, 467 U.S. 479, 485,(1984), quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). In its October, 1988, term, however, the Supreme Court made clear that in these access-to-evidence situations only bad faith police conduct creates the kind of fundamental unfairness that the due process clause prohibits. See Arizona v. Youngblood, 488 U.S. 51, 55-58 (1988).

In this case, there is no suggestion of bad faith. See Id. at 58 (bad faith exists when "police . . . by their conduct indicate that the evidence could form a basis for exonerating the defendant"). In light of Chistolini's failure to offer any evidence of bad-faith conduct by the police, there is no showing of a violation of Federal due process standards. [Note 8]

The order of the District Court is therefore vacated and

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the case is remanded for further proceedings consistent with this opinion.

So ordered.