In Massachusetts drunk driving cases, it can be useful to have a blood sample that can be compared to breathalyzer results. Recognizing this, Massachusetts General Laws Chapter 263 Section 5A gives those suspected of drunk driving the right to an independent physical examination, and the police officer in charge of the station is required to inform OUI/DUI/DWI/drunk driving suspects of this right immediately upon being booked.
The statute places the main responsibility in the hands of the suspect, and the police need not assist anyone in the exercise of this right. The police only have to provide a “reasonable opportunity,” which generally just means that they must inform suspects of this right and make a telephone available. Police have to do very little to adequately notify suspects, and sometimes they will just give a suspect an opportunity to read the statute.
This law has two purposes: (1) to provide arrested persons with the opportunity to seek potential exculpatory evidence; and (2) to prevent improper police conduct. Typically, if the police fail to inform a suspect of his/her statutory right to a physical examination, the remedy is dismissal of the complaint or suppression of evidence. However, the statute does not make the remedy explicit, and there are some very troubling loopholes that arise from the prophylactic purpose of the statute. The Appeals Court has determined that even where police fail to inform a defendant of his/her right to a physical, no sanction is required where police did not “attempt” or “desire” to undermine the purpose behind §5A. The Supreme Judicial Court has held that the remedy must only be “adequate” to cure potential or real prejudice resulting from a violation of §5A, considering whether the suspect was so drunk that compliance with the law would have been futile. Therefore, there might be no remedy for a violation of your rights where, for example, the police are otherwise occupied or even careless. A violation of your rights might be justified where someone else simply determines that it wouldn’t be worthwhile to comply with the law.
The text of M.G.L. c. 263 §5A is available at:
If you have been charged with a Massachusetts OUI, call the Law Offices of Stephen Neyman P.C. at (617) 263-6800 or contact us online.