If you’re arrested for drunk driving in Massachusetts, you have the right to an independent medical evaluation (at your own expense) to the determine your level of sobriety. This right is found under M.G.L. c. 263, Sec. 5A and it’s often referred to simply as your “5A rights.”
The statute states:
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 his designee, shall inform him of such 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. (Emphasis added.)
Chicopee Police, with the assistance of the Massachusetts State Police, arrested a man for allegedly driving under the influence of alcohol.
It’s unclear whether the defendant was brought to the Chicopee Police Station or the State Police Barricks.
Either way, the room where he was booked did conspicuously display the arrestee’s 5A rights. Nor did the arresting officer or state trooper provide the man with a written copy of his rights.
The man’s lawyer filed a motion to dismiss the OUI charge and a district court judge allowed the motion.
The Commonwealth appealed and today the Appeals Court affirmed the dismissal.
General Laws c. 263, § 5A, requires that a person in custody and charged with OUI 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 additional statutory right to receive a copy of the statute unless one is conspicuously posted evinces the Legislature’s concern that defendants be adequately informed of their right to an independent examination. Prompt notice is critical to the defendant’s ability to obtain potentially exculpatory evidence, so strict compliance with the requirements of G. L. c. 263, § 5A, should be the unaltered practice. Because the defendant was not provided with a written notice and none was posted, his rights were violated. (Citations and quotations omitted.)
The Appeals Court then concluded that dismissal was the proper remedy for violating 5A.
[D]ismissal in such a case is not solely a prophylactic measure intended to deter future misconduct by police, it is primarily meant to prevent prosecution and conviction of an individual who, had he been able to obtain an independent medical examination, might have been able to disprove or deflect the charges against him. In these circumstances, dismissal was an appropriate remedy. (Citations and quotations omitted.)
The full text of the slip opinion is attached below.