Commonwealth v. Jevaughn K. McMillan.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-764

COMMONWEALTH

vs.

JEVAUGHN K. MCMILLAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth charged the defendant, Jevaughn K.

McMillan, with operating a motor vehicle while under the

influence of liquor (OUI), second offense. G. L. c. 90,

§ 24 (1) (a) (1). The defendant moved to dismiss the charge,

citing a violation of his right to an independent medical

examination under G. L. c. 263, § 5A.1 After an evidentiary

1 General Laws c. 263, § 5A, provides:

"A person held in custody at a police station or other
place of detention, 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 of such station or place of
detention, or his designee, shall inform him of such right
immediately upon being booked, and shall afford him a
reasonable opportunity to exercise it. Such person shall,
hearing, a judge of the Chicopee District Court allowed the

motion. The Commonwealth appeals, maintaining that dismissal

was improper. We affirm.

Background. We draw the undisputed facts from the ruling

on the defendant's motion to dismiss, supplemented by testimony

consistent with those findings. "[W]e defer to the motion

judge's finding[s] of fact in the absence of clear error."

Commonwealth v. King, 429 Mass. 169, 172 (1999). An officer of

the Chicopee police department responded to a report that a man

was slumped over the steering wheel of a car with an open door.

The officer smelled an odor of alcohol coming from the vehicle

and saw the defendant hanging outside the driver's side door,

nonresponsive. The officer called the fire department to

evaluate the defendant. When the defendant awakened, he

appeared confused, spoke with slurred speech, and had red,

glassy, bloodshot eyes. The officer, based on his training and

experience, believed the defendant was severely intoxicated and

arrested him for OUI after the fire department released him.

During the defendant's booking process, a State trooper

read him a statutory rights and consent form that, among other

immediately upon being booked, be given a copy of this
section unless such a copy is posted in the police station
or other place of detention in a conspicuous place to which
such person has access."

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things, outlined his right to an independent medical

examination. G. L. c. 263, § 5A. The defendant signed the

form. Neither the arresting officer nor the trooper provided

the defendant with a copy of the statutory rights form during

the booking process.2 The § 5A rights were not conspicuously

posted in the station.

Discussion. 1. Violation of statutory notice requirement.

General Laws c. 263, § 5A, requires that a person in custody and

charged with OUI "be informed of his right to obtain an

independent physical examination immediately after he is booked

and that he also be given a copy of the statute, unless a copy

is conspicuously posted in the place of detention."

Commonwealth v. Gruska, 30 Mass. App. Ct. 940, 940 (1991). The

additional "statutory right" to receive a copy of the statute

unless one is conspicuously posted "evinces the Legislature's

concern that defendants be adequately informed of their right to

an independent examination." Commonwealth v. Andrade, 389 Mass.

2 The arresting officer testified that his "normal practice"
is to put a copy of the rights form with the property of the
arrested person, all of which is returned to the person
eventually -- sometimes up to thirty days later. The officer
did not remember what he did on the day of the defendant's
arrest. Although we are skeptical that statutory compliance
could be achieved by providing a copy of the rights form that
might not be available to the defendant for up to thirty days,
we need not consider this question in the circumstances of this
case.

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874, 878 (1983). Prompt notice is critical to the defendant's

ability to obtain potentially exculpatory evidence, see id. at

881, so "strict compliance with the requirements of G. L.

c. 263, § 5A, should be the unaltered practice." King, 429

Mass. at 180, quoting Commonwealth v. McIntyre, 36 Mass. App.

Ct. 193, 202 (1994). Because the defendant was not provided

with a written notice and none was posted, his rights were

violated.

2. Remedy. "Section 5A does not state the consequences

that should flow from a violation of its terms." King, 429

Mass. at 177, quoting Ames, 410 Mass. at 607. "Therefore, the

task of fashioning remedies is left to the courts, which must

provide a remedy appropriate to the circumstances of each case."

King, supra. "[E]ach case must be considered on its own set of

facts and a remedy adequate to cure potential or actual

prejudice resulting from a violation of G. L. c. 263, § 5A,

should be allowed." Andrade, 389 Mass. at 878.

"Where a defendant's right under § 5A has been violated,

the violation itself is prima facie evidence that the defendant

has been prejudiced in that his opportunity to obtain and

present potentially exculpatory evidence has been restricted or

destroyed." King, 429 Mass. at 180-181. The case law

articulates three situations in which this "presumption of

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prejudice . . . may be overcome," two of which are potentially

germane here -- "by overwhelming evidence of intoxication . . .

or by other evidence indicating that the omission was not

prejudicial in the circumstances." Id. at 181.3

We are not persuaded that the first situation was present,

as the only evidence of the defendant's intoxication was the

arresting officer's testimony. This is inadequate to overcome

the presumption of prejudice. See Andrade, 389 Mass. at 882 (if

persuasive evidence exists "apart from the officers' testimony

. . . it could fairly be said that the defendant was not

prejudiced by the police officers' violation of G. L. c. 263,

§ 5A" [emphasis added]). See also Commonwealth v. Priestley,

419 Mass. 678, 682 (1995) (overwhelming evidence of intoxication

when defendant's inculpatory admissions "independently

corroborated the police testimony"); Commonwealth v. Hampe, 419

Mass. 514, 523 (1995) ("dismissal may be inappropriate" in case

of "overwhelming evidence of guilt apart from the breathalyzer

test and police testimony").

This brings us to the second situation, where there is

"evidence indicating that the omission was not prejudicial in

3 A third situation -- not arising here -- is when there are
"exigent circumstances . . . which might have justified the
police officers' failure to communicate the defendant's right to
him." Andrade, 389 Mass. at 879. See Commonwealth v. Atencio,
12 Mass. App. Ct. 747, 750 (1981).

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the circumstances." King, 429 Mass. at 181. The Commonwealth

seems to assert that, if the defendant got actual notice -- that

is, if the rights were read to him -- he was not prejudiced. We

disagree. In our view, the cited cases require that, to

demonstrate a lack of prejudice, the Commonwealth must show that

"the failure of the police to notify the defendant that he was

entitled to an examination by a physician of his own choice was

inconsequential" (quotation omitted). McIntyre, 36 Mass. App.

Ct. at 203, quoting Ames, 410 Mass. at 608. Because

"inconsequential" means "had no consequences," these cases

require the Commonwealth to demonstrate that the absence of the

required notification made no difference.

None of the cases relied on by the Commonwealth rest on the

adequacy of notice, alone, to show lack of prejudice. In Ames,

the defendant was offered a blood alcohol content test at the

hospital but refused it, permitting the judge (who was ruling

after trial) to infer that the defendant "declined the blood

test at the hospital and asked for a breathalyzer test because

he believed that the passage of time would reduce the

possibility of an inculpatory test result." Ames, 410 Mass. at

607. This assessment underlay the judge's conclusion that the

defendant was not prejudiced by the absence of notification

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because "if he had been so advised, he would not have changed

his mind and had a blood test." Id.

In McIntyre, the defendant and his father (both lawyers)

showed actual knowledge of the § 5A right, first by educating

the arresting officer about the right and then by requesting an

independent examination. McIntyre, 36 Mass. App. Ct. at 200,

203. In those circumstances, statutorily mandated notice would

simply have affirmed what they already knew and acted on, and

thus could have made no difference. Finally, in Gruska, the

defendant was "shown a copy of G. L. c. 263, § 5A, in a

looseleaf binder and was given an opportunity to read the

statute." Gruska, 30 Mass. App. Ct. at 941. He "was given

three to four minutes to read the statute," "was told that the

statute was very important and that he should read it," and "it

was then read aloud to him 'word for word.'" Id. "He showed no

interest in it." Id. There, too, the evidence supported a

conclusion that additional notice would have been

"inconsequential" because the defendant showed no interest in

the rights even when directed to review them, supporting a

conclusion that neither handing him the rights or having them

posted conspicuously on the wall would have aroused his

interest. Id.

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Here, by comparison, after the trooper read the defendant

the statutory rights form, which discussed multiple different

rights, he asked questions about the defendant's understanding

of his rights related to the chemical breath test and then

directed the defendant to sign a form indicating that he refused

the breath test. No one directed the defendant's attention to

the portion of the form that set out his right to an independent

medical evaluation, emphasized the importance of that right, or

afforded the defendant an opportunity to read the description of

that right to himself. Instead, the booking video reveals that

the defendant had the form in his possession for less than ten

seconds. There is simply no evidence on this record from which

we can conclude that the statutory failure was "inconsequential"

-- that is, that the defendant would not have elected the

independent medical examination had he received the statutory

notice he was due.

"A violation of § 5A interferes with an accused person's

ability to rebut the charges against him." King, 429 Mass. at

179. Therefore, "suppression of evidence will not always be an

effective remedy for a violation of a defendant's rights under

G. L. c. 263, § 5A, since a violation of § 5A may actually

prevent exculpatory evidence from being revealed" (emphasis

omitted). Andrade, 389 Mass. at 881. "[D]ismissal in such a

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case is not solely a prophylactic measure intended to deter

future misconduct" by police, "it is primarily meant to prevent

prosecution and conviction of an individual who, had he been

able to obtain an independent medical examination, might have

been able to disprove or deflect the charges against him."

King, supra. In these circumstances, dismissal was "an

appropriate remedy." Andrade, supra at 875.4

Order allowing motion to
dismiss affirmed.

By the Court (Massing, Hand &
Hershfang, JJ.5),

Clerk

Entered: October 24, 2025.

4 The defendant's request for attorney's fees and costs
pursuant to Mass. R. Crim. P. 15 (d), as amended, 476 Mass. 1501
(2017), is allowed. The application setting forth the specific
amount of fees and costs and supporting documentation shall be
filed with this court within thirty days of the date of this
decision. See Commonwealth v. Santos, 99 Mass. App. Ct. 360,
365 (2021). The Commonwealth shall have thirty days thereafter
to respond. See Commonwealth v. Ennis, 441 Mass. 718, 721 n.3
(2004).

5 The panelists are listed in order of seniority.

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