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Com. v. Mandell7/20/2004
On a motion to dismiss a complaint charging him with operating a motor vehicle while under the influence of marijuana, G.L. c. 90, § 24, the defendant argued that he should have been advised by the police that he had a right to an independent medical examination to test for drug impairment of his ability to operate a motor vehicle. [FN1] Pursuant to Mass.R.Crim.P. 34, **1047 378 Mass. 905 (1979), a District Court judge reported two questions concerning any right the defendant might have to be so advised.
FN1. Although the defendant has not included his motion to dismiss in the record before us, the basis of his motion is clear from his brief as well as that of the Commonwealth and the reported questions.
*527 1. The reported questions. As reported, the questions we have been asked to answer are:
"1. Does Article 12 of the Massachusetts Declaration of Rights, or the 6th or 14th Amendments of the United States Constitution, require that an individual arrested for operating under the influence of drugs be advised by the police that he or she can arrange for an independent medical examination?
"2. If such right to an independent exam exists, then if the defendant is not advised of such right to be examined immediately by a physician in order to provide possible exculpatory evidence of his or her sobriety, is he or she required to show that he or she was prejudiced by police officers' failure to so comply, in order ... for the complaint to be dismissed?"
Because we answer "no" to the first question, we need not and do not reach the second.
2. The defendant's argument. The defendant bases his claim of right to be advised of an independent medical examination when arrested for operating under the influence of drugs on G.L. c. 263, § 5A, as amended through St.1983, c. 557. The statute reads, in pertinent part:
"A person held in custody ... 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 ... or his designee, shall inform [such a person] of such right immediately upon being booked, and shall afford him a reasonable opportunity to exercise it."
He argues that to limit § 5A to alcohol impairment is to deny him the protections afforded by the equal protection and due process clauses of the State and Federal Constitutions.
3. Discussion. There is nothing in § 5A itself that provides a ground for dismissal of the complaint. By its clear and unambiguous language, § 5A restricts itself to offenders charged with driving under the influence of alcohol. It contains no language concerning operation of a motor vehicle while under *528 the influence of marijuana or any other drug. We are not free to add language to a statute for the purpose of interpreting it according to what we might imagine to be the Legislature's objective. See James J. Welch & Co. v. Deputy Commr. of Capital Planning & Operations, 387 Mass. 662, 666, 443 N.E.2d 382 (1982). Rather, "[w]here the language of a statute is clear and unambiguous, it is conclusive as to legislative intent." Pyle v. School Comm. of S. Hadley, 423 Mass. 283, 285, 667 N.E.2d 869 (1996). This rule of statutory interpretation applies even were we to recognize a potential unfairness within a statute's clear language. Remedial action in such circumstances is for the Legislature. See, e.g., Commonwealth v. Villalobos, 437 Mass. 797, 804, 777 N.E.2d 116 (2002). It also applies even where we recognize that a statute creates a potential anomaly. [FN2] See DaLuz v. Department of Correction, 434 Mass. 40, 49, 746 N.E.2d 501 (2001), quoting from Weitzel v. Travelers Ins. Co., 417 Mass. 149, 153, 627 N.E.2d 926 (199
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