Com. v. Mandell7/20/2004
fluence of drugs that they have the right to an independent drug test. We see *530 nothing in the Fourteenth Amendment to the United States Constitution or art. 12 of the Massachusetts Declaration of Rights that gives an accused such a right.
**1049 Federal due process principles do not obligate the police to assist an accused to obtain such evidence. They do, however, guarantee that the police cannot hinder a defendant's own efforts to secure potentially exculpatory evidence. As stated in Commonwealth v. Chistolini, 422 Mass. 854, 858, 665 N.E.2d 994 (1996):
"We note that there is within Federal due process principles 'what might loosely be called the area of constitutionally guaranteed access to evidence.' California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). In its October, 1988, term, however, the Supreme Court made clear that in these access-to-evidence situations only bad faith police conduct creates the kind of fundamental unfairness that the due process clause prohibits. See Arizona v. Youngblood, 488 U.S. 51, 55-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)."
In respect to an accused's right of access to evidence, the breadth of art. 12 of the Massachusetts Declaration of Rights is no different from that of the Sixth and Fourteenth Amendments to the United States Constitution. In Commonwealth v. Alano, 388 Mass. 871, 876-879, 448 N.E.2d 1122 (1983), the court held that any State or Federal due process right a defendant accused of driving under the influence of alcohol might have to secure potentially exculpatory evidence (a blood test) was assured by G.L. c. 263, § 5A, and that there was no due process violation in the absence of a showing that police acted in bad faith to interfere with a defendant's attempt to exercise his statutory right. Cf. Commonwealth v. Campbell, 378 Mass. 680, 702, 393 N.E.2d 820 (1979) ("prosecutor has no duty to investigate every possible source of exculpatory information on behalf of the defendants and ... his obligation to disclose exculpatory information is limited to that in the possession of the prosecutor or police"); Commonwealth v. Beal, 429 Mass. 530, 533-534, 709 N.E.2d 413 (1999) (although a prosecutor "cannot inhibit access to a witness ... [a] prosecutor has no duty to help the defendant generate information from an independent witness").
Our reading of the above cited cases, considered in light of *531 the fact of an accused's statutory right to the use of a telephone, see G.L. c. 276, § 33A, [FN3] leads us to conclude that a defendant accused of driving while under the influence of drugs has neither a State nor Federal due process right to be advised that he can arrange for an independent medical examination which might produce exculpatory information.
FN3. General Laws c. 276, § 33A, as amended through St.1963, c. 212, provides:
"The police official in charge of the station or other place of detention having a telephone wherein a person is held in custody, shall permit the use of the telephone, at the expense of the arrested person, for the purpose of allowing the arrested person to communicate with his family or friends, or to arrange for release on bail, or to engage the services of an attorney. Any such person shall be informed forthwith upon his arrival at
such station or place of detention, of his right to so use the telephone, and such use shall be permitted within one hour thereafter."
4. Conclusion. The answer to reported question number one is "No," making it unnecessary for us to answer reported question number two. The matter is remanded to the District Court for further proceedings.
So ordered.
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