Commonwealth v. Falco

The Commonwealth appeals from the allowance of the defendant’s motion to dismiss the complaint charging him with operating while under the influence of intoxicating liquor, second offense (OUI), G. L. c. 90, § 24. After an evidentiary hearing, the motion judge determined that the failure of the clerk-magistrate to conduct a prompt bail hearing upon learning that the defendant had refused a breathalyzer test deprived the defendant of the opportunity to prepare a defense pursuant to G. L. c. 263, § 5A. Absent collateral overwhelming evidence of *254intoxication, the judge concluded that dismissal…