30 Mass. App. Ct. 940 | Mass. App. Ct. | 1991
The defendant was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor. His motion to dismiss the charge on the ground that the police had failed to follow the requirements of G. L. c. 263, § 5A, with respect to his right to request an independent physical examination at his own expense, was allowed by a District Court judge after an evidentiary hearing. The Commonwealth filed a notice of appeal on December 17, 1987. The appeal was not entered in this court until July 10, 1990. The Commonwealth contends that there was compliance with § 5A. The defendant argues that the Commonwealth’s appeal should be dismissed for prejudicial delay.
1. The G. L. c. 263, § 5A, claim. The defendant contends that he was deprived of his right to notice in accordance with the terms of the statute. General Laws c. 263, § 5A, requires that a person in custody and charged with operating a motor vehicle under the influence of intoxicating liquor be informed of his right to obtain an independent physical examination immediately after he is booked and that he also be given a copy of the statute, unless a copy is conspicuously posted in the place of detention.
The motion judge found
The police did not comply with the letter of G. L. c. 263, § 5A, because they failed either to post a copy of the statute or to give a copy to the defendant. However, literal compliance would not have afforded the defendant notice beyond that required by the statute. Compare Commonwealth v. Andrade, supra at 877, 878-879. Indeed, if the statute had been posted on a wall of the police station, there would have been compliance with § 5A if the police had merely brought this to the attention of the defendant, after, as they did here, informing him of the statutory right. Ibid.
Moreover, “[t]here was no indication in the evidence of any police attempt or desire to avoid or subvert the policy behind § 5A.’’
2. Delay in the appellate process. The defendant argues that the Commonwealth’s appeal should be dismissed because of a negligent delay of nearly two years in having the transcript prepared. The request for dismissal is based on Mass.R.Crim.P. 36(c), 378 Mass. 912 (1979), and on principles of due process. The rule 36(c) claim (essentially involving the denial of due process) is not properly before us. It should be raised by a motion to dismiss the complaint made to a District Court judge who must determine whether there has been both an unreasonable lack of diligence by the prosecution and prejudice to the defendant.
Order dismissing complaint reversed.
General Laws c. 263, § 5A, as amended by St. 1983, c. 557, 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. The police official in charge of such station or place of detention, or
The judge gave no rationale for his decision.
Apparently, the police station was a new facility, having been occupied for about two weeks.
Massachusetts Rule of Criminal Procedure 36(c), provides: “Notwithstanding the fact that a defendant is not entitled to a dismissal under subdivision (b) of this rule, a defendant shall upon motion be entitled to a dismissal where the judge after an examination and consideration of all attendant circumstances determines that: (1) the conduct of the prosecuting attorney in bringing the defendant to trial has been unreasonably lacking in diligence and (2) this conduct on the part of the prosecuting attorney has resulted in prejudice to the defendant.”