Heard: April 13, 2016.
found and returned in the Superior Court Department on May 6,
2014. A motion to dismiss was heard by Mary-Lou Rup, J.
Cynthia M. Von Flatern, Assistant District Attorney, for the
Petersen for the defendant.
Wolohojian, Agnes, & Neyman, JJ.
defendant, Christopher J. Burnham, was involved in a
single-car accident, and indicted for operating a motor
vehicle while under the influence of intoxicating liquor
(OUI), subsequent offense. The defendant filed a motion to
dismiss the charge, claiming that the citation for OUI was
not issued in compliance with G. L. c. 90C, § 2.
Following an evidentiary hearing, a Superior Court judge
allowed the motion.
sole issue on appeal is whether the issuance of a citation to
the defendant, more than four and one-half months after the
police officers had concluded their investigation, violated
the provisions of G. L. c. 90C, § 2, and mandated
dismissal of the indictment. Where the defendant did not have
prompt and definite notice of the offense for which he was
charged, and the delay in issuing the citation was not
justified under any of the exceptions to the statutory
requirement to provide the citation at the time and place of
the violation, dismissal was warranted.
summarize the judge's findings. In the early morning of
November 24, 2013, Officers Kyle Gribi and Eric Alexander of
the Easthampton police department arrived at the scene of a
single-car accident. Officer Gribi, trained as an emergency
medical technician, observed and attended to the driver (the
defendant), who "was unresponsive, but later regained
consciousness." Officer Gribi stabilized the
defendant's cervical spine and maintained his airway.
Approximately ten minutes after the officers' arrival, an
ambulance arrived and took the defendant to Baystate Medical
Center (Baystate). The officers did not accompany the
defendant to the hospital. The judge credited testimony that
"neither officer detected any indicia of the defendant
being intoxicated during their investigation of the
at the scene, Officer Alexander learned that the
defendant's license had been suspended, and Officer Gribi
subsequently issued a citation against the defendant for
"operating after suspension" and a "marked
lanes" violation (the Easthampton
charges). The officers' investigation
"ended in good faith when Officer Gribi issued and
caused to be mailed to the defendant a citation for marked
months later, on February 23, 2014, the defendant was
arrested in Northampton for an unrelated incident and charged
with OUI. Upon reviewing the Northampton OUI charge and
inspecting the defendant's probation record, the
prosecutor learned of the Easthampton charges still pending
in Northampton District Court. The prosecutor initiated an
independent investigation into the Easthampton charges and
obtained the defendant's medical records from Baystate,
relating to the treatment he received as a result of the
earlier Easthampton incident. The medical records included a
toxicology report that revealed that the defendant had an
"ethanol level on the night of the Easthampton incident
[that] translated to a blood alcohol concentration of 0.18
[per cent]." On April 16, 2014, the prosecutor relayed
this information to Officer Gribi and instructed him to issue
a citation for OUI to the defendant. That same day, Officer
Gribi issued and delivered a citation for OUI to the
defendant at his home.