(dissenting in part). The first reported question, “Whether it is a violation of statutory or [constitutional rights for an individual who is arrested ... for operating under the influence of alcohol when courts are not in session to be denied access to a bail commissioner and held over night,” construed literally, surely requires the court’s answer — “Yes.” See G. L. c. 276, §§ 42, 57, 58 (1992 ed.); Jenkins v. Chief Justice of the Dist. Court Dep’t, 416 Mass. 221, 239-240 (1993); Quinn v. State Ethics Comm’n, 401 Mass. 210, 212-213 (1987). However, the court devotes much of its opinion to the question whether in this case the judge was correct in concluding that, based on his subsidiary *525findings, the police “denied [the defendant] access to a bail commissioner.” I agree that the court should focus on that question, but I do not agree that the judge’s findings warrant the conclusion that the defendant was denied access to a bail commissioner. Therefore, I do not agree that the defendant’s statutory rights were violated or that the complaint was rightly dismissed. If I were to agree that they had been violated, though, I would conclude, differently from the court, that the judge properly dismissed the complaint.
General Laws c. 263, § 5A (1992 ed.), provides in material part: “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.” I agree with the court that, in aid of the legislative objectives in enacting the relevant statutes, the police must either telephone a bail commissioner or allow the arrested individual to do so, ante at 518, 521, and must advise him of his right to make his own arrangements at the time of booking. Ante at 521. I would require that the police make a telephone and directory available for that purpose.
I am content that those requirements should be applied to this case. Therefore, if the judge had found on sufficient evidence that the police did not honor those rights, I would join . in the court’s conclusion that “the police obstructed the defendant’s release on bail.” Ante at 521. However, the judge made no such finding and none would have been warranted. Although the judge found that the police did not call a bail commissioner, the new requirements do not mandate them to do so, and it is of no consequence that Officer Hines’s reason for not calling a bail commissioner, which he was not required to do, was that he or the officers thought that the defendant should sleep off the effects of the alcohol he had consumed. The question is not what the officers thought, but *526what they did or failed to do in violation of the aforesaid requirements.
The court states, ante at 517, that “none of the Weston police officers called a bail commissioner, nor does it appear that the defendant was allowed to make such a call.” As I have said, it is of no consequence that none of the officers called a bail commissioner. It also is of no consequence that it does not “appear that the defendant was allowed to make such a call.” The important point is that there was no finding, or even evidence, that the defendant was not allowed to make such a call or that he was not advised in timely fashion of his right to do so. Therefore, it has not been established that the police did not satisfy the aforesaid requirements or otherwise obstruct the defendant’s release on bail. I conclude that the motion to dismiss should have been denied.
In response to the second reported question concerning the appropriate remedy when a defendant charged with operating under the influence has been denied access to a bail commissioner, the court concludes that, in some cases, resulting prejudice may be eliminated by suppression of evidence. Ante at 524. I do not agree. In my view, if prejudice has been shown, dismissal is required. Of course, dismissal is inappropriate when prejudice has not been shown, as when there is overwhelming evidence of guilt “apart from the officers’ testimony (as shown on videotape, for example)'' (emphasis added). Commonwealth v. Andrade, 389 Mass. 874, 882 (1983). In such circumstances, “it could fairly be said that the defendant was not prejudiced by the police officers’ violation of G. L. c. 263, § 5A” (emphasis added). Id. In that situation, the complaint should not be dismissed, id., and no other corrective measure, such as suppression of evidence, is called for. On the other hand, if prejudice has been shown, it cannot be eliminated by suppression of evidence, leaving the finder of fact to determine the defendant’s guilt or innocence without the benefit of a physician’s testimony or a blood test result that, but for the unlawful intervention of the police, might have created reasonable doubt in the fact finder’s mind. My view is that, if a defendant’s right to a bail hear*527ing has been violated, a complaint for driving while under the influence of liquor must be dismissed unless there is clearly no prejudice, see Andrade, supra at 882, in which case there is no need for a remedy.