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Commonwealth v. O'Leary

Appeals Court of Massachusetts, Norfolk

September 22, 2017

COMMONWEALTH
v.
RICHARD O'LEARY.

          Heard: August 16, 2017.

         Motor Vehicle, Citation for violation of motor vehicle law, Operating under the influence. Practice, Criminal, Citation for violation of motor vehicle laws, Dismissal. Notice.

         Indictments found and returned in the Superior Court Department on September 23, 2014. A motion to dismiss was heard by Beverly J. Cannone, J.

          Pamela Alford, Assistant District Attorney, for the Commonwealth.

          Douglas T. Babcock for the defendant.

          Present: Green, Vuono, Meade, Agnes, & Desmond, JJ.[1]

          GREEN, J.

         We are called upon again to consider the circumstances in which the failure to issue a citation at the scene of a motor vehicle infraction does not compel the dismissal of resulting criminal charges. The Commonwealth appeals from an order of the Superior Court, dismissing a multiple-count indictment against the defendant on the ground that the police failed to make a timely delivery of the citation pursuant to G. L. c. 90C, § 2.[2] For the reasons that follow, we reverse.

         Background.

         We summarize the judge's findings of fact, which we accept absent clear error. On the night of April 19, 2014, the defendant was involved in a motor vehicle accident on Route 3 in Braintree. The Jeep Cherokee he was driving left the highway, hit an exit sign, and rolled over five times.

         State police Trooper Jared Gray responded to the accident scene. The defendant and a woman, Patricia Murphy, were covered in blood and broken glass. Gray observed the defendant and Murphy being treated by emergency personnel; both eventually were taken to South Shore Hospital by ambulance for treatment. Trooper Gray spoke to both the defendant and Murphy briefly before they were taken to the hospital; at that time, each claimed to have been a passenger in the vehicle.

         From his observations at the scene, Trooper Gray believed the parties had suffered serious injuries.[3] He followed the ambulances to the hospital. When he arrived at the emergency room, he left his citation book in his patrol vehicle. He spoke first with Murphy. She appeared to be intoxicated, but seemed to understand his questions. As she had done at the accident scene, she told Gray that she had been a passenger in the vehicle. Gray next spoke with the defendant. Gray noticed that his eyes were glassy and his speech was slurred. He also noticed the odor of alcohol coming from the defendant. The defendant told Gray he had had "a couple of beers." The defendant initially repeated his earlier statement that he had been a passenger in the vehicle, but then admitted to having been the driver. At the time of the accident, the defendant was on probation for operating under the influence of alcohol, subsequent offense. His license was suspended and he was not legally permitted to drive. Gray gave Miranda warnings to the defendant, after which the defendant repeated that he had been the driver. Gray told the defendant he would be receiving "a criminal summons in the mail." Gray's intent was to complete his investigation, file his report with his supervisor, and then send a citation to the defendant. After filing his report with his supervisor, Gray waited nine days for the report to be approved. Once it was approved on April 28, 2014, it was mailed to an address on file with the State police. Due to an incorrect zip code, however, it was another five or six weeks before the defendant received the citation in the mail.

         The judge credited Murphy's testimony that she believed that this was "merely a car accident and that there would be no charges arising from it, " even though she had suffered serious physical injuries.[4] However, the judge also found that, for several weeks after the accident, Murphy and the defendant waited for something in the mail "or for some sort of contact" from the State police regarding what had happened. After the accident and before he received the citation, the defendant did not hire an attorney or take any steps to defend a criminal case.

         Discussion.

         General Laws c. 90C, § 2, provides in pertinent part that:

"A failure to give a copy of the citation [for an automobile laws violation] to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation, except where the violator could not have been stopped or where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator, or where the court finds that a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure. In such case the violation shall be recorded upon a citation as soon as possible after such violation and the citation shall be delivered to the violator or mailed to him at his residential or mail address or to the address appearing on his license or registration."

         Though the statute is applied strictly in those circumstances to which it is applicable, see Commonwealth v. Carapellucci, 429 Mass. 579, 581 (1999), it is subject to certain explicit statutory exceptions, as construed through a line of decisional law.

         The statute includes three explicit exceptions.[5] "By its terms, § 2 excuses the need to deliver a copy of the citation at the time and place of the violation in three circumstances: (1) when 'the violator could not have been stopped'; (2) when 'additional time was reasonably necessary to determine the nature of the violation or the identity of the violator'; and (3) 'where the court finds that a circumstance, not inconsistent with the purpose of this section . . ., justifies the failure.'" Commonwealthv.Correia, 83 Mass.App.Ct. 780, 783-784 (2013). ...


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