The defendant, Lance Huggins, raises a single issue following his conviction of operating a motor vehicle while under the influence of intoxicating liquor, second offense:
On March 30, 2009, at approximately 12:45 a.m., Officer Baker of the Brockton police department was on routine patrol when he noticed headlights shining into a wooded area near Intervale Street. On investigation, he saw a vehicle approximately fifteen feet off the side of the road. The vehicle had struck a few trees and “was hung up on some rocks.” The roads were dry. The area was well lit. The defendant was in the driver’s seat of the vehicle when Officer Baker approached it. After determining that there was no need for immediate medical assistance, he returned to his cruiser and called for a tow truck. Several additional officers arrived. Officer Kalp approached the defendant, who was still seated in his vehicle, to ask for his license and registration. He noticed “an extremely strong odor of alcoholic beverage coming from [the defendant’s] breath.” When asked for his license and registration, the defendant threw personal papers out of the window of his vehicle as he looked for the items. He produced his license. Although the passenger doors were operable, the police had to force the driver’s side door open to enable the defendant to get out of his vehicle.
Once outside the vehicle, the defendant told the police he had been there for forty-five minutes. The police observed that he was “very erratic,” and his manner was rude and belligerent.
At the conclusion of the hearing, the judge denied the motion to dismiss. The judge stated that the basis for her decision was the totality of the circumstances as depicted by the three officers who testified, including the defendant’s demeanor, the strong odor of alcohol, the location of the defendant’s vehicle, and his refusal to perform field sobriety tests.
Discussion. 1. Challenging probable cause for arrest after conviction. The defendant claims for the first time on appeal that he is entitled to the dismissal of the charge because the police lacked probable cause for his arrest since they relied on his refusal to perform field sobriety tests to make that judgment. This argument overlooks the fact that “[a]n illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction.” Commonwealth v. Jacobsen,
2. Judge’s role when acting on a motion to dismiss. We take this opportunity to clarify the judge’s role when it is alleged that there was no probable cause for the issuance of a complaint. When, as in this case, a person is arrested without a warrant, the initial assessment of probable cause is made by the arresting police officer. See District Attorney for the Norfolk Dist. v. Quincy Div. of the Dist. Ct. Dept.,
A motion to dismiss a complaint, in which the defendant challenges whether the charge is supported by probable cause, is a very limited remedy analogous to a postindictment motion to dismiss under Commonwealth v. McCarthy,
In the present case, despite the fact that the prosecutor and defense counsel disagreed whether the observations made by the police at the scene were sufficient to establish probable cause, the judge should have decided the motion to dismiss on the basis of the written or recorded statement in support of the complaint on file with the clerk-magistrate in accordance with Mass.R.Crim.R 3(g). The defendant has no right to cross-examine the Commonwealth’s witnesses in advance of trial. DiBennadetto, 436 Mass, at 315. Here, the Commonwealth did not give its consent to an evidentiary hearing. Accordingly, the
Judgment affirmed.
Notes
See G. L. c. 90, § 24(l)(a)(1), fourth par.
Insofar as the defendant sought to suppress certain evidence seized by the police at the scene, the issue was resolved prior to the evidentiary hearing by a stipulation between the Commonwealth and the defendant in which the Commonwealth agreed that because one of the officers, who was a necessary witness, was unavailable due to military service, it would not offer any evidence at trial with respect to items that were seized from the defendant’s vehicle. The stipulation covered the evidence seized from the defendant’s vehicle, but not the observations made by the police of the defendant’s behavior nor his statements made to the police at the scene and at the police station.
Before a sentence of imprisonment to State prison may be imposed, the defendant has a right under art. 12 of the Massachusetts Declaration of Rights to have the case presented to, and an indictment returned by, the grand jury. See Commonwealth v. Barbosa,
There is thus no occasion in this case for us to reach the question whether the police may rely on a person’s refusal to perform field sobriety tests in determining probable cause. Even if we assume the judge should not have relied on such evidence in making her determination of probable cause, the remedy is to examine what evidence remains and determine whether it is sufficient to establish probable cause. See Commonwealth v. Webster,
Even were the issue of probable cause properly at issue in this case, the defendant’s contention that without the evidence of his refusal to perform field sobriety tests the police lacked probable cause to believe he was impaired would fail. Assuming that the information contained in the application in support of the complaint in this case, see Mass.R.Crim.P. 3(g), as appearing in
When a person who has been arrested is held in custody, a judicial officer must make an out-of-court, ex parte determination of probable cause as soon as reasonably possible but no later than twenty-four hours after the arrest unless there are exigent circumstances. See Mass.R.Crim.P. 3.1,
“Judicial officer” includes judges as well as “a clerk-magistrate, assistant