Motor vehicles – OUI

Where a District Court judge dismissed a charge of operating a motor vehicle while under the influence of intoxicating liquor, that decision should be affirmed because (1) though the defendant was properly informed of his right to be examined by a physician of the defendant’s choice under G.L.c. 263, §5A, he was neither provided with a copy of the statutory text nor was it posted in the police station and (2) there was no error in the judge’s determination that the commonwealth failed to demonstrate that the defendant was not prejudiced by the failure to give him (or post) the text of G.L.c. 263, §5A.

“By statute, police arresting a defendant for operating a motor vehicle while under the influence of intoxicating liquor (OUI) must inform the defendant immediately upon booking that the defendant has the right to be examined by a physician of the defendant’s choice. G.L.c. 263, §5A. The police must also give the defendant a copy of the statutory text or post it ‘in a conspicuous place.’ G.L.c. 263, §5A. Here, the defendant was properly informed of his right to an independent physician but was neither provided with a copy of the statutory text nor was it posted in the police station. For that reason, a District Court judge dismissed a charge of OUI, G.L.c. 90, §24(1)(a)(1), against the defendant. As we discern no error in the judge’s determination that the Commonwealth failed to demonstrate that the defendant was not prejudiced by the failure to give him (or post) the text of G.L.c. 263, §5A, we affirm. …

“Contrary to the Commonwealth’s contention, no overwhelming evidence of the defendant’s intoxication was shown. …

“The Commonwealth properly does not claim that there was an exigency excusing full compliance with G.L.c. 263, §5A. The defendant was uninjured and reported as much to the police. … No other reason was provided why it would have been impractical to provide the defendant with a copy of the statutory text or to post it in the police station. …

“… The Legislature has determined that written provision of the right to be examined by an independent physician assists criminal defendants in a way that oral provision alone does not, and thus we cannot consider the absence of a writing to be ‘hypertechnical.’ … In the absence of affirmative evidence that the defendant would not have acted differently if provided the written text as required by statute, the judge properly dismissed the OUI count.”

Commonwealth v. Baez (Lawyers Weekly No. 11-076-25) (14 pages) (Ditkoff, J.) A motion to dismiss was heard by Bethzaida Sanabria-Vega, J., in District Court. Christopher Nickels for the commonwealth; Matthew S. Hutchinson for the defendant (Docket No. 24-P-546) (Oct. 24, 2025).

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