Number 3 July 17, 1973

Number 3 July 17, 1973 Honorable George G. Burke District Attorney for the Norfolk District Superior Court House Dedham, Massachusetts 02026 Dear Mr. District Attorney: You have requested my opinion with respect to the powers of the police in relation to G. L. c. 11 IB, which went into effect July 1, 1973. First, you indicate concern with the arrest and search powers of police officers who arrive at the scene of an automobile accident and find that one or more of the parties involved have apparently been operating a motor vehicle under the influence of an intoxicating liquor, a mis- demeanor. Until the present, as you note in your request, the police could only arrest a person for a misdemeanor committed in their pres- ence, and under this rule, the provisions of G. L. c. 11 IB would pre- clude the arrest of a person for driving under the influence of intoxicat- ing liquor or driving to endanger until a warrant or a complaint issues from a district court, since drunkenness is no longer a misdemeanor. Such a situation, in effect, would negate the breathalyzer provisions of the General Laws, as well as the right to search pursuant to a lawful arrest under those circumstances. However, the situation you posit has been rectified by c. 461 of the Acts of 1973 which revised G. L. c. 90, § 21 to insert the following pro- vision which took effect on July 1, 1973: "Any officer authorized to make arrests may arrest without warrant and keep in custody for not more than twenty-four hours, unless Sunday intervenes, any person operating a motor vehicle on any way who does not have in his posses- sion a license to operate motor vehicles granted to him by the registrar, and who violates any statute, by-law, ordinance or regulation relating to the operation or control of motor vehi- cles and any officer authorized to make arrests, provided such officer is in uniform or conspicuously displaying his badge of office, may arrest without warrant any person, re- gardless of whether or not such person has in his possession a P.D. 12 47 license to operate motor vehicles issued by the registrar, if such person upon any way or in any place to which the public has the right of access, or upon any way or in any place to which members of the public have access as invitees, oper- ates a motor vehicle after his license or right to operate motor vehicles in this state has been suspended or revoked by the registrar, or whoever upon any way or place to which the public has the right of access, or upon any way or in any place to which members of the public have access as invitees, or who the officer has probable cause to believe has operated or is operating a motor vehicle while under the influence of intoxicating liquor, marijuana or narcotic drugs, or depressant or stimulant substances, all as defined in section one of chap- ter ninety-four C, or under the influence of the vapors of glue, carbon tetrachloride, acetone, ethylene, dichloride, tol- uene, chloroform, xylene, or any combination thereof . . ." This amendment gives a policeman the power to arrest any person he has probable cause to believe is operating or did operate a motor vehicle while under the influence of intoxicating liquor, marijuana or narcotic drugs, or depressant or stimulant substances, if he is in uniform or con- spicuously displays his badge of office. In view of the revision, it is un- necessary for me to answer your question relating to search and towing of the arrested person's motor vehicle. Secondly, you request an opinion relative to the maintaining of re- cords of persons held in "protective custody" pursuant to G. L. c. II IB, and whether or not such records could be used in a subsequent criminal action or civil suit arising out of the incident which resulted in the person being held in protective custody, and whether or not they are to be considered public records. General Laws, c. 11 IB, has the follow- ing provision which took effect July I, 1973: '*A person assisted to a facility or held in protective cus- tody by the police pursuant to the provisions of this section, shall not be considered to have been arrested or to have been charged with any crime; however, an entry of custody shall be made indicating the date, time, and place of custody, which record shall not be treated for any purposes as an ar- rest or criminal record." G. L. c. 1 1 IB, § 8. It is my opinion that the record cannot be treated for any purpose as an arrest or criminal record, in any subsequent criminal action or civil suit. Whether or not it can be introduced for any other purpose will be based upon the facts of the case and the relevance and materiality of the records to the issue before the court. Concerning whether such records are public, G. L. c. 4, § 7 provides in part: " 'Public Records' —Twenty-sixth, 'Public Records' shall mean any written or printed book or paper, any map or plan of the commonwealth, or of any county, district, city, town or authority established by the general court to serve a public purpose, which is the property thereof, and in or on which 48 P.D. 12 any entry has been made or is required to be made by law." A recent decision of the Supreme Judicial Court, Town Crier Inc. and Others v. Chief of Police of Weston, Massachusetts, 1972 Adv. Sh. 891, 895, interpreting the above statute, stated: "The proper construction of G. L. c. 4, § 7. Twenty-sixth, in our view is that the two categories of records encompassed by the definitions are (a) those in which 'any entry has been made . . . [pursuant to a legal requirement]' and (b) those in which 'any entry ... is required to be made by law,' . . ." It is my opinion that records maintained pursuant to G. L. c. 1 1 IB, § 8 are public records, since an entry of custody indicating the date, time, and place of custody is to be maintained as "required to be made by law," namely, G. L. c. 1 1 IB, § 8. Very truly yours, ROBERT H. QUINN Attorney General