COMMONWEALTH v. NATHANAEL BELIZAIRE (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Nathanael Belizaire, appeals from the denial of his motion to dismiss a charge of operating under the influence of liquor (OUI), in violation of G. L. c. 90, § 24 (1) (a) (1). He argues that his right to an independent medical examination, under G. L. c. 263, § 5A (section 5A), was violated. Following the denial of his motion to dismiss, the defendant entered a conditional guilty plea, pursuant to Mass. R. Crim. P. 12 (b) (6), as appearing in 482 Mass. 1501 (2019). He claims that the motion judge erred in concluding that the evidence of intoxication was so overwhelming that the section 5A violation caused him no prejudice. Seeing no error, we affirm.

Background. We recite the relevant facts as found by the motion judge, supplemented by testimony consistent with those findings, as well as nearly three hours of body camera footage

On September 19, 2023, at around 3:48 A.M., the defendant was arrested for operating under the influence of liquor. According to the arresting State trooper and body camera footage, the defendant performed three field sobriety tests. The trooper testified that the defendant failed the tests and smelled of alcohol.

During the booking process, at about 4:46 A.M., the defendant invoked his section 5A right to an independent medical exam, presumably to obtain a test of his blood alcohol level. Bail was set at $540. The defendant had the required funds and a driver available to pick him up. However, the bail commissioner declined to return to the State police barracks to bail the defendant out, for reasons that are not entirely clear from the record. The defendant remained in custody, and thus unable to get a blood test, until his arraignment at 11:30 A.M. This was almost eight hours after his arrest.

The defendant moved to dismiss the OUI charge because his section 5A right was violated. The judge denied the motion, after which the defendant entered a conditional plea on his OUI charge, and this appeal followed.

Discussion. “[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). However, we review documentary evidence, such as body camera footage, de novo. See Commonwealth v. Tremblay, 480 Mass. 645, 646 (2018).

1. Violation of G. L. c. 263, § 5A. Section 5A requires a person in custody, charged with OUI, to be afforded a “reasonable opportunity” to exercise their right to an independent medical examination. “[A] defendant ordinarily must be released on bail before he is able to obtain an independent medical examination,” and this must occur “promptly if § 5A is to have any force.” King, 429 Mass. at 176.

At the motion to dismiss stage, it is the defendant's burden to show a violation of his section 5A right. Commonwealth v. Baez, 106 Mass. App. Ct. 219, 221 (2025). If he does so, it is prima facie evidence of prejudice. King, 429 Mass. at 180-181. Specifically, it is evidence that a defendant's “opportunity to obtain and present potentially exculpatory evidence has been restricted or destroyed.” Id. However, the Commonwealth can overcome that presumption of prejudice by presenting “overwhelming” evidence of a defendant's intoxication.¹ Id. at 181.

We see no error in the motion judge's finding that the defendant's rights under section 5A were violated. Based on the record, the defendant's opportunity to obtain exculpatory evidence was restricted. Despite meeting the requirements for bail, he was not released from custody until eight hours after his arrest and nearly seven hours after his section 5A request. This was not a “reasonable opportunity to exercise” his section 5A right, considering how “the alcohol content of blood decreases with the passage of time.” Commonwealth v. Ames, 410 Mass. 603, 606, 608 n.4 (1991).

2. Overwhelming evidence of intoxication. Following a finding of prima facie prejudice resulting from a section 5A violation, we review whether the motion judge properly found overwhelming evidence of intoxication. To evaluate overwhelming evidence, we look for “persuasive evidence ․ apart from the officers’ testimony.” Baez, 106 Mass. App. Ct. at 224, quoting Commonwealth v. Andrade, 389 Mass. 874, 882 (1983).

Of the available binding case law under section 5A, only Commonwealth v. Priestley, 419 Mass. 678, 682-683 (1995), affirmed a finding of overwhelming evidence of intoxication.² See id. (“overwhelming” evidence of intoxication where officer testimony was independently corroborated by additional persuasive evidence). In Priestley, supra, the motion judge relied upon the defendant's own testimony, which substantiated police testimony.

Here, the arresting officer's testimony was independently corroborated by body camera footage. The footage gives overwhelming evidence that the defendant was impaired.³ Many of the signs of impairment displayed by the defendant are very commonly known to also be signs of alcohol intoxication. The defendant heavily slurred his speech. He appeared unsteady on his feet, losing his balance and stumbling when asked to step away from his crashed vehicle. Initially, he denied drinking but quickly changed his answer, stating he “wasn't drinking much,” and then said he had “one drink most.” Without being prompted, he repeatedly recited a series of numbers, apparently asking the trooper to call his girlfriend. He claimed he did not drive the crashed vehicle, even though he appeared to be alone. He had trouble with gross and fine motor control and visibly struggled to complete field sobriety tests.

The defendant's argument that the motion judge failed to consider a concussion as a possible cause of his impairment is also without merit. While it is possible that the defendant was concussed, he cannot point to any evidence of a concussion. He only offers mere speculation that a concussion may have caused his impaired behavior. The body camera footage showed no visible signs of injury to the defendant's head. There were no signs in the car's interior or exterior that showed any possible impact with the defendant's head. He denied having any injuries that required medical attention. He did not make contemporaneous complaints about pain or other symptoms consistent with a head injury, such as nausea or dizziness. There was no medical evidence of concussion or any other head injury following his release from custody. The mere suggestion on cross-examination that the trooper could not rule out concussion as an alternative cause does not render the affirmative evidence of impairment by alcohol less than overwhelming. It is immaterial that the judge chose not to address the speculation in his oral findings.

3. Conditional plea requirements. As noted during the change of plea hearing, the parties orally agreed to “allow[ ] [the defendant's plea] to be a conditional plea so that way he can preserve his appellant rights.” Conditional pleas reserving appellate review fall under the purview of Mass. R. Crim. P. 12 (b) (6).

The relevant portion of rule 12 (b) (6) provides that

“[w]ith the written agreement of the prosecutor, the defendant may tender a plea of guilty or an admission to sufficient facts while reserving the right to appeal any ruling or rulings that would, if reversed, render the Commonwealth's case not viable on one or more charges. The written agreement must specify the ruling or rulings that may be appealed, and must state that reversal of the ruling or rulings would render the Commonwealth's case not viable on one or more specified charges” (emphasis added).

As the Reporter's Notes to the 2019 amendment of rule 12 (b) (6) states, “[t]his rule requires the parties to specify, by written agreement, the ruling or rulings reserved for appeal, and the charge or charges that would presumptively be dismissed if the defendant prevails on appeal and chooses to withdraw the guilty plea or admission to sufficient facts.”

As the defendant's postargument letter concedes, none of the foregoing requirements were met here. In the circumstances here, where the formulation of the issue is straightforward and its significance clear, we exercise our discretion to overlook the noncompliance. In future cases, the parties risk dismissal of the appeal.

Order denying motion to dismiss affirmed.

FOOTNOTES

1.   Contrary to defense counsel's claim at oral argument, the presumption of prejudice does not tell us to weigh the evidence of intoxication against the effect of an exculpatory blood test. Instead, we weigh the evidence of intoxication against the deprivation of the defendant's opportunity to gather “potentially exculpatory evidence” (emphasis added). King, 429 Mass. at 180.

2.   Appellate decisions that arguably imply a view on whether evidence of intoxication was overwhelming, for section 5A or other purposes, are of limited utility as comparators where they do not include the kind of video evidence available in this case. See Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 373 (2006) (noting testimony by defendant and other witnesses was “persuasive” but “not overwhelming” evidence of intoxication); Ames, 410 Mass. at 605 (noting witness testimony was “very substantial,” but not overwhelming evidence of guilt).

3.   Although this case is superficially similar to Baez, 106 Mass. App. Ct. at 221, we have reviewed the booking video in that case and the footage here is far different; Baez “did not look obviously intoxicated,” as the defendant here did.