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Commonwealth v. Werra

Appeals Court of Massachusetts, Plymouth

July 17, 2019

COMMONWEALTH
v.
JANICE J. WERRA.

          Heard: December 11, 2018

         Complaint received and sworn to in the Hingham Division of the District Court Department on January 25, 2017.

         A motion to dismiss was heard by Heather M.S. Bradley, J., and a motion to reconsider was heard by her.

          David Cutshall, Assistant District Attorney, for the Commonwealth.

          Claudia Lagos for the defendant.

          Present: Rubin, Milkey, & McDonough, JJ.

          RUBIN, J.

         This 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, § 2.

         The 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 the wheel.

         About 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.

         The 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, "Fifty-eight."

         Eventually 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.

         One 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, 2016.

         Finally, 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 ...


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