(concurring). The transcript of the evidentiary hearing on the defendant’s motion to dismiss makes abundantly clear that the judge’s conclusion that the police had interfered with the defendant’s statutory right to a reasonably prompt bail hearing, and therefore with his right to have an independent blood alcohol test, was based entirely on the judge’s subsidiary finding that the police had failed to call the bail commissioner on the defendant’s behalf. In arriving at that conclusion, the judge did not have the benefit of the court’s opinion in Commonwealth v. Hampe, ante 514 (1995). In Hampe, the court announced that, in circumstances similar to those present here, the police must either telephone a bail commissioner with reasonable promptness or allow the arrested individual to do so after advising him at the time of booking of his right to make his own arrangements. Id. at 518. The judge here did not find that the police had failed to advise the defendant of his right to make his own arrangements or that the police had not allowed the defendant to do so. Indeed, as the court notes, “[t]he judge made no finding (and none would have been warranted) that the police prevented the defendant from seeking bail on his own.” Ante at 682.
The court observes that “[t]he judge’s conclusion that the police had hampered the defendant’s statutory right to seek release on bail thereby violating his right under G. L. c. 263, § 5A, may not be sound.” Ante at 682. In my view, although the judge’s pre-Hampe conclusion is understandable, it is not sound. The defendant’s rights have not been shown to have been violated. For that reason, the defendant’s motion to dismiss was denied properly and, as the court concludes for a different reason, the judgment should be affirmed.
*684The judge concluded that the evidence of the defendant’s guilt of driving under the influence of intoxicating liquor is overwhelming, and that therefore the violation of the defendant’s statutory rights, which the judge found, was not prejudicial. The court agrees that, even if the defendant’s statutory rights were violated, the violation was harmless. I disagree. I agree that there would be no prejudice if there were overwhelming evidence of guilt “apart from the officers’ testimony (as shown on videotape, for example).” Commonwealth v. Andrade, 389 Mass. 874, 882 (1983). If there had been a videotape of the defendant’s booking, or other evidence equally unchallengeable, showing uncontestably that the defendant was drunk at 4 a.m. or later, then it could be said with confidence that blood test evidence would not have helped the defendant at trial. In the absence of such evidence, as here, however, the credibility of the police officers is at issue and, whether viewed in conjunction with the defendant’s testimony or without it, that evidence cannot properly, and consistent with Commonwealth v. Andrade, supra, be treated as “overwhelming.”1
I agree that the judgment should be affirmed because, as I see it, the defendant did not prove that he was denied access to a bail commissioner. I do not agree that, even if access was denied, it is clear that the defendant was not prejudiced by police conduct that deprived him of blood test results that could have caused the trier of fact to have reasonable doubt that the defendant drove while intoxicated.
The defendant testified that he had consumed four scotch drinks between 9:30 p.m., March 1, 1992, and 1 a.m., March 2, and had had nothing to drink between 1 a.m. and 4 a.m., when he was arrested. He denied that he had crossed the center line of the road although he admitted that he had gone close to it when he leaned forward to adjust his radio. The defendant had an explanation consistent with sobriety of why he failed the field tests.