Heard: February 6, 2019.
found and returned in the Superior Court Department on
December 7, 2015.
motion to dismiss was heard by Thomas F. McGuire, Jr., J.,
and a motion for reconsideration was considered by him.
Jessica Heaton, Assistant District Attorney, for the
Green, Committee for Public Counsel Services, for the
Present: Henry, Lemire, & Ditkoff, JJ.
Commonwealth appeals from an order of a Superior Court judge
dismissing so much of an indictment as charged the defendant,
Brendan W. Ray, with causing serious bodily injury while
operating a motor vehicle recklessly or negligently and while
under the influence of an intoxicating substance, G. L. c.
90, § 24L (1), because of failure to comply with the
"no-fix" statute, G. L. c. 90C, § 2.
Concluding that the Commonwealth failed to show that the over
ten-month delay was necessary to determine the nature of the
violation, and that neither an earlier citation for negligent
operation, G. L. c. 90, § 24 (2) (a.), nor the nature of
the accident provided the defendant with sufficient notice
that he would be charged with this crime, we affirm.
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. O'Leary, 480 Mass. 67,
67-68 (2018), citing Commonwealth v.
Burnham, 90 Mass.App.Ct. 483, 484 n.l (2016) . At
approximately 10 P..M. on January 23, 2015, an accident
involving two cars occurred in the area of Bedford Street in
Whitman. When police arrived at the scene, a blue Volvo with
extensive damage was stopped at an angle on the side of the
road. The driver of the Volvo was removed from the car and
transferred to a hospital by helicopter for treatment of
life-threatening injuries. A red Jeep (allegedly operated by
the defendant) was overturned, lying on its passenger side in
the road. The Jeep had severe damage to its front end, and
its hardtop roof and rear passenger-side tire were detached.
A police detective observed an expired inspection sticker on
the Jeep. Meanwhile, the defendant was seated on railroad
ties along the edge of a driveway approximately ten to twenty
feet from the Volvo. The defendant told police that he had no
recollection of the accident. The defendant was profusely
bleeding from his mouth, nose, and face, and was transported
to the hospital by ambulance.
were unable to determine the cause of the accident right away
and did not charge the defendant with a crime or issue a
citation on the night of the accident. At approximately 2:13
A.M. that night, a detective went to South Shore Hospital to
interview the defendant. The defendant told the detective
that he had no memory of the accident. He recalled that he
was at a friend's house in Bridgewater before the
accident but could not remember the name of the friend. The
detective noticed "a slight odor of alcohol coming from
[the defendant]" but did not form the opinion that he
was intoxicated at that time. The defendant told the
detective that he drank a couple of beers at his friend's
house earlier that night.
January 30, 2015, seven days after the accident, the
detective prepared a report stating that the accident was
still being investigated. The detective also reported that
the defendant's vehicle, traveling northbound, crossed
the center line into the southbound lane and collided with
the blue Volvo.
January 31, 2015, the defendant attempted to retrieve his
Jeep at the Whitman police station. The detective told the
defendant that the accident was still being investigated and
the Jeep could not yet be released. The detective again asked
the defendant if he remembered the accident. This time, the
defendant recalled that the rear tire detached from the Jeep
and he lost control of the vehicle and crashed. The detective
told the defendant that the driver of the Volvo was severely
injured and remained in the hospital in a medically-induced
coma. He also told the defendant that criminal charges could
be issued as a result of the accident.
mid-March 2015, the State trooper responsible for the
accident reconstruction investigation reported that "the
accident was not caused by mechanical failure" and that
the tire came off the Jeep as a result of the accident, not
prior to the accident. On March 20, 2015, the detective
issued the defendant a motor vehicle citation listing charges
of negligent operation of a motor vehicle, G. L. c. 90,
§ 24 (2) (a.); a marked lanes violation, G. L. c. 89,
§ 4A; and failure to have the motor vehicle inspected,