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COMMONWEALTH v. GEORGE R. MADDEN
Appeals Court of Massachusetts

April 20, 1990

Facts:

The defendant Madden was driving left of the center line, smelled of liquor, was red-eyed and slurry of speech. He failed field sobriety tests.  At the police station house he submitted to breathalyzer tests on which the percentage, by weight, of alcohol in his blood registered as .18 and .19. A factor of .10 is sufficient to trigger a statutory presumption of intoxication, G. L. c. 90, § 24(1)(e), as amended through St. 1980, c. 383, § 1, and immediate suspension of an accused’s driving license at arraignment. Madden was convicted of operating under the influence at a jury-waived trial before a judge of the Boston Municipal Court.

Issue:

Whether G. L. c. 263, § 5A, with which the police complied, provides sufficient notice to a drunk driving defendant that he is entitled to a blood test?

Discussion:

To be sure, under G. L. c. 90, § 24N, it is a blood test — not some other diagnostic test — which can rebut the presumption of being under the influence expressed in § 24(1)(e). For that reason a blood test, whether chemical or through breath analysis, should be the diagnostic procedure of choice. The police, however, are not obligated to assist accused persons in preparing an optimal defense. They are to afford reasonable opportunity to prepare a defense when an accused, having been alerted to his right to seek assistance from a physician, takes steps to get it.  Nor are police obligated to instruct a person arrested that a positive breathalyzer test result (i.e., showing the subject to be under the influence) will result in a 90-day license suspension.  Although we do not think there is a constitutional obligation upon police to coach persons in custody about what sort of medical test is desirable, it would be sound practice, i.e., beyond constitutional or statutory imperatives, if police were to notify a person taken into custody for driving under the influence of the right to be examined by a physician and to have an independent blood test.

Hence this court affirmed defendant’s conviction of operating under the influence.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content

Originally published here.

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