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Commonwealth v. O'Leary

Supreme Judicial Court of Massachusetts, Norfolk

July 12, 2018


          Heard: March 5, 2018.

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

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Douglas T. Babcock for the defendant.

          Pamela Alford, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Lowy, Cypher, & Budd, JJ.

          CYPHER, J.

         The defendant, Richard O'Leary, asks this court to determine whether the Commonwealth met its burden of proving compliance with the citation requirement of G. L. c. 90C, § 2, which mandates the issuance of a traffic citation "at the time and place of the violation," despite the fact that a State police trooper did not issue a traffic citation at the scene of the violation or at the hospital following the interviews he conducted. Instead, before issuing the citation, the trooper submitted an accident report to his supervisor for approval, which the trooper received nine days later. Because we consider this unexplained, nine-day delay in the citation's issuance to be inconsistent with one of the two legislative purposes of the "no-fix" provision -- specifically, the antiabuse purpose -- we affirm the dismissal of the indictments.

         Facts and procedural history.

We adopt the Superior Court judge's factual findings, which we do not disturb absent clear error, and supplement them with uncontroverted details from the record. Commonwealth v. Burnham, 90 Mass.App.Ct. 483, 484 n.l (2016), citing Commonwealth v. Eckert, 431 Mass. 591, 592 (2000). Around 10:30 £.M- on April 19, 2014, State police Trooper Jared Gray responded to an accident on a highway off-ramp. Gray arrived to find that a single vehicle had rolled over and dislodged a highway sign; the police had closed the off-ramp, and emergency medical services were at the scene. Two individuals, the defendant and a passenger, Patricia Murphy, had been injured in the accident. Both the defendant and Murphy claimed to be passengers in the vehicle, and both were transported to a hospital.

         Gray followed the ambulances to the hospital to interview the defendant and Murphy. He left his citation book in his vehicle. He first spoke with Murphy, who reiterated that she had been a passenger in the vehicle. During this interview, it appeared to Gray that Murphy was intoxicated. Gray then spoke with the defendant. Gray gave the defendant Miranda warnings, and the defendant admitted that he had been the driver of the vehicle and that he had had "a couple of beers." The defendant's "eyes were glassy" and "his speech was slurred." At the time of the accident, the defendant was on probation for operating a motor vehicle while under the influence of alcohol (OUI), subsequent offense. His license had been suspended, and he was not legally permitted to drive. Gray informed the defendant that he would be receiving a summons in the mail for OUI, a marked lanes violation, and operating with a suspended or revoked license.

         Gray did not issue a citation at that time. Gray later submitted his investigation report to his supervisor, who approved the report nine days later, on April 28, 2014.[1] On that day, Gray issued citations to the defendant for a marked lanes violation, operation of a motor vehicle with license suspended for OUI, operation of a motor vehicle with license revoked, and OUI, fifth offense. Gray then placed the citations in the barracks mailbox.[2] Due to a ZIP code error in the State police reports system, however, the defendant did not receive the citation until approximately five to six weeks after the incident.

         A Superior Court judge granted the defendant's motion to dismiss on the grounds that Gray had failed to issue a citation "at the time and place of the violation," as required under § 2, and because the Commonwealth did not meet its burden of demonstrating that an exception in § 2 applied. The Appeals Court reversed, holding that the case fit within the third statutory exception, which excuses delayed delivery of citation "where the court finds that a circumstance, not inconsistent with the purpose of [§ 2] . . ., justifies the failure." Commonwealth v. O'Leary, 92 Mass.App.Ct. 282, 284, 286-287 (2017), quoting G. L. c. 90C, § 2. While noting that there did not appear to be "any strong reason for the delay" in issuing the citation, Id.. at 286, the court considered dismissal unnecessary where "there was no manipulation or misuse of the citation, and [Gray] notified the defendant as soon as he had completed his interview . . . that a citation would be issued." Id. at 286-287, quoting Commonwealth v. Moulton, 56 Mass.App.Ct. 682, 685 (2002). We granted the defendant's motion for further appellate review.

         D ...

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