Commonwealth v. Atencio

Supreme Judicial Court of Massachusetts · 1963 · Criminal Law

Criminal Lawvehicular homicidelesser included offensesduplicitydriving under the influencedriving to endangerhospital recordsodor of alcohol

Facts

Atencio lost control of his pickup truck, struck a stopped car, then hit a moped carrying two riders; one rider later died. Atencio was injured, arrested at the scene on charges including operating under the influence and operating to endanger, and taken by ambulance to the hospital for immediate medical attention. He was never taken to a police station, the booking process was never completed, and he was not informed of any right under G. L. c. 263, § 5A to obtain an immediate examination by a physician of his own choosing. At trial, the Commonwealth presented witness testimony that Atencio appeared to have been drinking and hospital-record evidence referring to an odor of alcohol and a statement that he was “bombed.”

Issue

Did the failure to inform Atencio of his statutory right under G. L. c. 263, § 5A require dismissal of the OUI charge or suppression of intoxication evidence, and were the intoxication-related testimony and hospital-record references properly considered? Also, after a conviction for vehicular homicide under G. L. c. 90, § 24G from a single accident, could the separate convictions for operating under the influence and operating to endanger stand?

Rule

A sanction of dismissal or exclusion is not warranted for noncompliance with G. L. c. 263, § 5A where the defendant was not booked within the meaning of the statute, emergency circumstances made compliance impracticable, there was no indication of police intent to avoid or subvert the statute, and the defendant suffered no significant prejudice. A lay witness may testify to another's sobriety or lack of it, and properly admitted hospital records may be considered on any relevant issue. Where a defendant is convicted under G. L. c. 90, § 24G based on a single accident, separate convictions for the included offenses of driving under the influence and driving to endanger must be dismissed as duplicitous.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

After a late-night collision in Worcester, police arrested Nolan Price for operating under the influence. Because Nolan had a head wound and another driver needed emergency extraction, officers sent Nolan directly to a hospital, never took him to a station, and never completed booking; Nolan received immediate treatment and later identified no specific lost evidence from the lack of notice about an independent physician.

If Nolan moves to dismiss the OUI charge or suppress intoxication evidence because police did not advise him of the statutory right to an immediate examination by a physician of his choosing, how should the court rule?

Explanation. The majority held that dismissal or exclusion is not an appropriate sanction where the defendant was never booked within the meaning of the statute, emergency conditions made compliance impracticable, there was no attempt to subvert the statute, and no significant prejudice was shown. Here, those same features are present, so the motion should be denied.