Heard: December 11, 2018
received and sworn to in the Hingham Division of the District
Court Department on January 25, 2017.
motion to dismiss was heard by Heather M.S. Bradley,
J., and a motion to reconsider was heard by her.
Cutshall, Assistant District Attorney, for the Commonwealth.
Claudia Lagos for the defendant.
Present: Rubin, Milkey, & McDonough, JJ.
case requires us to determine whether the issuance of a
citation for operating a motor vehicle under the influence of
intoxicating liquor (OUI-liquor), G. L. c. 90, § 24 (1)
(a.) (1), that was not issued contemporaneously with the
incident from which it arose, falls into the third exception
of the so-called "no-fix" statute, G. L. c. 90C,
following uncontested facts are taken from the judge's
findings, supplemented by documentary evidence in the record.
On July 22, 2015, the defendant was stopped by Trooper
Michael Donahue of the State Police. The Commonwealth alleges
on that date at around 12:20 £.M., Trooper Donahue
received a dispatch to look out for a green Ford Explorer
driving southbound on Route 3 in Hingham. A civilian had
called to report that the Explorer was being driven
erratically and that the driver seemed to be nodding off at
five minutes later the trooper saw the Explorer traveling in
the breakdown lane. He pulled behind the vehicle and
activated his cruiser's emergency lights, but the driver,
subsequently identified as the defendant, did not stop.
Instead the Explorer continued to an exit ramp. The trooper
drove up alongside the Explorer. The defendant did not
acknowledge the trooper. Trooper Donahue then drove in front
of the Explorer and stopped his cruiser across the exit ramp.
He got out of his cruiser and signaled for the defendant to
pull over. She seemed disoriented and did not comply. Trooper
Donahue walked up to the defendant's vehicle and opened
the door, ordering the defendant to pull over. She seemed
confused but eventually pulled over after about two minutes
and several requests by the trooper.
trooper asked the defendant for her license and registration.
She was slow to respond and looked through her makeup case
slowly even though her wallet was on the front seat. When the
trooper eventually asked her to identify herself, her speech
was slurred. The trooper asked her to spell her name, to
which she responded "Waaarrraa." She tried four
additional times but was unable to spell her name. He asked
her if she was on any medication, to which she responded,
"Medication." He asked her age, to which she
responded, "Fifty-eight." He asked for her date of
birth five times, to which she responded repeatedly,
the defendant clarified that she had taken methadone earlier
that morning. Emergency medical services arrived and took the
defendant to a hospital. An inventory search of the Explorer
subsequently revealed a cup in the center console containing
a clear liquid with a strong odor of an alcoholic beverage.
That same day, Trooper Donahue wrote a citation for operating
a motor vehicle under the influence of drugs (OUI-drugs), G.
L. c. 90, § 24 (1) (a) (1), negligent operation of a
motor vehicle, G. L. c. 90, § 24 (2) (a.), and three
civil infractions. The date of mailing or receipt of this
citation is not clear from the record but, for reasons that
will become clear infra, is not relevant to the
issue before us.
week after the date of the incident, Trooper Donahue wrote a
police report. In closing, the report stated, "It is
recommended that [the defendant's] medical records be
requested by the Plymouth County [district attorney]'s
office prior to trial. Case closed." On August 5, 2015,
a complaint issued charging the defendant with the offenses
listed on the citation. On October 21, 2015, the defendant
was arraigned in the District Court on the complaint. Only on
March 16, 2016, over eight months after the incident, did the
Commonwealth file a motion pursuant to Mass. R. Crim. P. 17,
378 Mass. 885 (1979), for a summons of the defendant's
hospital records, which was allowed. The medical records were
received in the court clerk's office on May 16, 2016, and
indicated that on the afternoon of the alleged incident the
defendant's blood alcohol content was .25 percent, over
three times the legal limit. See G. L. c. 90, § 24 (1)
(a.) (1). The case was scheduled for trial on October 13,
on October 12, 2016, the very day before the scheduled trial
date, five months after the medical records were received by
the clerk's office, and almost sixteen months after the
incident, the State Police applied for a complaint against
the defendant for OUI-liquor, G. L. c. 90, § 24 (1) (a)
(1) . The application included the same police report
completed by Trooper Donahue on July 29, 2015, along with
five pages from the defendant's medical records. The
application also included a new ...