Heard: December 5, 2017.
Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on March 23, 2015. A
motion to dismiss was heard by Myong Joun, J.
Sachse, Assistant District Attorney, for the Commonwealth.
W. Carroll for the defendant.
Present: Trainor, Meade, & Wolohojian, JJ.
defendant, Eric Moore, was charged with, among other things,
using a motor vehicle without authority (use without
authority), in violation of G. L. c. 90, § 24(2) (a.).
At the arraignment hearing, the defendant orally moved to
dismiss the charge of use without authority; the judge
allowed the defendant's motion prior to arraignment and
proceeded to arraign the defendant on the remaining charges.
The Commonwealth filed this timely appeal, arguing that the
judge erred in dismissing the use without authority charge
for two reasons: first, a complaint against an adult
defendant, unlike one against a juvenile, cannot be dismissed
prior to arraignment; and second, the complaint was supported
by probable cause that the defendant used the motor vehicle
without authority. For the reasons set forth infra,
we reverse the dismissal of the charge of use without
March 23, 2015, the defendant was driving a rental car and
was pulled over for failing to come to a complete stop at a
stop sign. When the police officers asked the defendant for
his license and registration, the defendant responded that he
did not have a license in his possession. Upon a criminal
justice information system query, the officers learned that
the defendant's out-of-State license was suspended. The
officers then contacted the rental company and obtained a
copy of the rental agreement for the vehicle, which provided
that Nicole Hosier of Pittsfield was the only individual
authorized to operate the rental car. The officers
subsequently arrested the defendant for, among other things,
use without authority, and towed the rental car.
defendant's arraignment hearing, defense counsel
requested to be heard prior to the arraignment. Defense
counsel asked the judge to dismiss the use without authority
charge because the facts do "not constitute . . . use
without authority." The judge agreed, stating:
"[W]here there's a rental company, there's a
lessee for that car. If somebody else is driving, I
understand the civil issue between the rental company and
whoever was driving, and maybe there's a civil issue with
the person who actually rented the car, but under the
criminal statute, where you're charging the person with
use without authority simply based on the fact that the
person who's driving, his name is not on the lease
agreement, I don't believe that that's what the
statute was intended for."
judge dismissed the use without authority charge prior to
arraigning the defendant on that charge. The Commonwealth
filed the instant appeal. However, due to the pending release
of the Supreme Judicial Court decision in Commonwealth v.
Campbell, 475 Mass. 611 (2016), the appellate
proceedings for this case were stayed. We now address the
case requires us to decide whether a judge can allow an adult
defendant's motion to dismiss a criminal charge prior to
arraignment on that charge, after a clerk-magistrate's
finding of probable cause. Initially, this question involves
an analysis and an application of the Massachusetts Rules of
Criminal Procedure and the relevant case law, but ultimately
it also requires an analysis of a judge's authority
pursuant to art. 30 of the Massachusetts Declaration of