With Thanksgiving soon upon us, marking the official start of the holiday season, think twice—at least—about how much alcohol you’ve consumed before getting behind the wheel. Driving drunk is a serious offense that can cost lives.

That said, should you get stopped by police and find yourself facing an arrest for driving under the influence, here’s what you should know about your rights.

A recent Massachusetts Appeals Court decision, Commonwealth v. Baez, has clarified how police must fully inform defendants of their rights during an arrest for Operating Under the Influence of Liquor (OUI). Specifically, M.G.L. c. 263, § 5A requires that defendants who are under arrest for OUI be informed of their right to an independent medical examination at booking and that a copy of § 5A either be provided to the defendant or be posted at the police station. If police fail to properly communicate the right to a medical exam, the case may, under certain circumstances, be dismissed.

Facts in Baez Case

The defendant was pulled over in the early morning hours for speeding. He was arrested by Chicopee police for operating under the influence of alcohol. During the booking process at the police station, the defendant was informed of his right to an independent medical exam pursuant to M.G.L. c. 263, § 5A. The form was read aloud by the booking officer word-for-word. The statute appeared on a form titled “Statutory Rights and Consent,” which also informed the defendant of his right to use a telephone, as well as the need to request a defendant’s consent to take the breathalyzer test, and warned the defendant that his license would be suspended if he refused.

The defendant had the form in his possession for eight seconds and signed it. The defendant then declined to take the breathalyzer, which he acknowledged by checking a box on the form. But the defendant was not allowed to keep the form, nor was he provided a copy of it. The § 5A rights were not posted at the station. Some police departments post the statute on the wall in the booking area, which is what the Chicopee police department did one year after this arrest. The defendant filed a motion to dismiss, alleging a violation of his rights guaranteed under § 5A. The motion was allowed. The Commonwealth appealed and the dismissal was affirmed.

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).

In this case, the Appeals court found the defendant was properly informed of the right when the booking officer read the text of the statute to him. However, the statute was violated because the defendant was never provided with a copy of the rights, nor were they posted. When there is a violation of a defendant’s § 5A rights, the statute does not state the consequences. The Supreme Judicial Court (SJC) has previously determined that the suppression of any breathalyzer result is ordinarily the appropriate remedy [Commonwealth v. Hampe, 419 Mass. 514, 523 (1995)]. But in cases like this, where the defendant did not take a breathalyzer, the presumptive remedy is dismissal. It is assumed the defendant has been prejudiced in their ability to obtain potentially exculpatory evidence that would prove their innocence.

There are three judicially recognized situations in which the presumption of prejudice may be overcome: 1) overwhelming evidence of intoxication, 2) by exigent circumstances which might have justified the police officers’ failure to communicate the defendant’s rights, or 3) by other evidence indicating that the omission was not prejudicial in the circumstances.

The Court determined none of those exceptions applied in this case. Running a red light after coming to a full stop late at night and stepping off the line during a field sobriety test provided minimal evidence of intoxication, even when combined with the traditional signs of intoxication—slurred speech, odor of alcohol, admission to consuming three drinks earlier that night, and bloodshot eyes. Furthermore, the court reviewed a video of the booking process and concluded that the defendant did not look obviously intoxicated, was alert, attentive, and responded appropriately to the officers’ questions. Exigent circumstances, such as the need to go to the hospital or unwillingness to cooperate with officers, were not present either.

Other Legal Defense Challenges to an OUI Arrest

The Baez case highlights one important statutory right. There are many other ways for a seasoned defense attorney to challenge an OUI arrest. Among them:

  • Challenging the Stop Itself — If the defense can show that the officer lacked a reasonable suspicion to pull the vehicle over and investigate further, then all the evidence that follows (field sobriety tests, statements of defendant, breathalyzer result) can be suppressed.
  • Field Sobriety Test Issues — Weather, footwear, medical conditions, poor instructions, uneven pavement, and officer errors can make field sobriety tests unreliable and misleading.
  • Breathalyzer Administration Issues — Massachusetts has a long history of breath test litigation. Issues with calibration, maintenance, operator certification, and the required 15-minute observation period all create opportunities for suppression of evidence.

At Mountain Dearborn, we examine every step of the arrest and booking process. We identify § 5A issues, suppression arguments, constitutional violations, and evidentiary weaknesses. Many OUI charges are far more defensible than most people realize.

If you or someone you know has been charged with OUI in Massachusetts, contact our criminal defense team. We’ll walk you through the strengths and weaknesses of your case and develop a strategy tailored to your situation.

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