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Commonwealth v. Burnham

Appeals Court of Massachusetts, Hampshire

October 13, 2016

COMMONWEALTH
v.
CHRISTOPHER J. BURNHAM

          Heard: April 13, 2016.

         Indictment 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 Commonwealth.

          James Petersen for the defendant.

          Wolohojian, Agnes, & Neyman, JJ.

          NEYMAN, J.

         The 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.

         The 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.

         Background.

         We summarize the judge's findings.[1] 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 scene."

         While 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).[2] The officers' investigation "ended in good faith when Officer Gribi issued and caused to be mailed to the defendant a citation for marked lanes violation."[3]

         Three 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.[4] 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.

         Discussion.

         1. ...


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