Heard: March 5, 2018.
found and returned in the Superior Court Department on
September 23, 2014. A motion to dismiss was heard by Beverly
J. Cannone, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Douglas T. Babcock for the defendant.
Alford, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Gaziano, Lowy, Cypher, & Budd, JJ.
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.
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.
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.
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. 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. 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.
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