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Commonwealth v. Mandell7/20/2004
Suffolk.
November 3, 2003.
Motor Vehicle, Operating under the influence. Narcotic Drugs. Constitutional Law, Narcotic drugs, Blood test, Equal protection of laws. Due Process of Law, Access to evidence.
Complaint received and sworn to in the South Boston Division of the District Court Department on November 19, 2001.
A motion to dismiss was heard by Gordon A. Martin, Jr., J., and questions of law were reported by him.
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. Pursuant to Mass.R.Crim.P. 34, 378 Mass. 905 (1979), a District Court judge reported two questions concerning any right the defendant might have to be so advised.
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 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 (1982). Rather, " 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 (1996). This rule of statutory interpretation applies even were we to recognize a potential unfairness within a statute's clear language.
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