By Stephen C. Pfaff of Louison, Costello, Condon & Pfaff, LLP
The defendant was arrested on July 4, 2003 at 1:30 a.m. by a Massachusetts State Trooper for operating a motor vehicle under the influence of liquor. The defendant was taken to the State Police barracks and provided with a copy of a form that listed his rights including his right to an independent blood test pursuant to MGL ch. 263 § 5A. The defendant declined to submit to a police administered breath examination but did inform the State Trooper that he wished to exercise his right to the §5A independent examination. The State Trooper refused, telling the defendant that he was not entitled to the independent examination until he first submitted to the breath examination.
The defendant then exercised his right to a telephone call pursuant to MGL ch. 276, §33A. He did not have his attorney's telephone number so he called directory assistance and was told by the operator that the attorney's unpublished number would only be provided in the case of a medical emergency. The defendant then stated to the operator that in fact it was a medical emergency and the State Trooper, upon hearing this, physically removed the telephone from the defendant, told the operator that the defendant was arrested for operating under the influence of liquor and that there was no medical emergency.
The Court dismissed the case because of the conduct of the State Trooper. First of all, the Court opined that there was no justification whatsoever for the State Trooper's actions in physically removing the telephone from the defendant and informing the operator that there in fact was no medical emergency. Secondly, the Court ruled that the State Trooper was incorrect in her declaration that the defendant was not entitled to an independent blood examination under he took the breath examination issued by the State Police. Third, the Court found that the State Trooper was wrong to tell the defendant upon his release that he would not be entitled to use any independent blood examination results because he had not first submitted to the police breath examination. The Court stated that Trooper had interfered with the defendant's right to an independent medical examination pursuant to §5A, and right to counsel and stated that such egregious conduct and irremediable prejudice warrants dismissal of the action.
Commonwealth v. Driscoll.