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Appeals Court Dismisses OUI Charge Under No Fix Statute

booze-1481628-300x226The Appeals Court affirmed the dismissal of the complaint charging the defendant with operating a motor vehicle while under the influence of intoxicating liquor (OUI-liquor) in Commonwealth v. Werra.  The Court’s decision rested on the fact that the police citation for that offense “was not issued contemporaneously with the incident from which it arose” and did not “fall[] into the third exception of the so-called ‘no-fix’ statute, G.L. c.90C, §2.”

The background was as follows. On July 22, 2015, state trooper Donahue responded to a dispatch indicating that a green Ford Explorer travelling southbound on Route 3 “was being driven erratically…. [Donohue] 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” until Donahue “drove in front of the Explorer” and blocked it. The defendant “seemed disoriented.” “When the trooper … asked her to identify herself, her speech was slurred” and she was unable to spell her name or state her date of birth. “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, … Donahue wrote a citation for operating a motor vehicle under the influence of drugs (OUI-drugs) … and other infractions.” “On August 5, 2015, a complaint issued charging the defendant with the offenses listed on the citation…. Only on March 16, 2016, over eight months after the incident, did the Commonwealth file a motion pursuant to Mass. R. Crim. P. 17 … for a summons of the defendant’s hospital records, which was allowed. The … records … indicated that on the afternoon of the alleged incident the defendant’s blood alcohol content was .25 percent, over three times the legal limit…. The case was scheduled for trial on October 13, 2016.” The day before that 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. The application included the same police report completed by … Donahue on July 29, 2015, along with … the defendant’s medical records. The application also included a new citation for OUI-liquor dated October 12, 2016. This citation issued more than one year and three months after the traffic incident occurred.” The next day, “the OUI-drugs charge was dismissed at the request of the Commonwealth. A new complaint alleging OUI-liquor, was issued on January 25, 2017. On July 14, 2017, … the motion judge heard the defendant’s motion to dismiss the complaint pursuant to the no-fix statute, G.L. c.90C, §2. That motion was allowed” and the Commonwealth appealed.

In its decision, the Appeals Court noted that G.L. c.90C, §2, “provides: ‘A failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense …, except … where … a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure’” (the third of three enumerated exceptions and the only one relevant here). The main purpose of the statute was to eliminate the opportunity for motorists who have received a citation from the police to apply “pressure for reasons other than legitimate law enforcement to void the citation.” “The OUI-liquor citation at issue in this case was not given to the ‘violator at the time and place of the violation.’…. Consequently, the defendant was entitled to dismissal of the complaint unless the late issuance of the citation fell within …. the … exception[]” set forth in the statute. The Appeals Court opined that “[i]n these circumstances, the terms articulated in the plain language of the … exception would appear to be met.” “[T]he failure to issue the citation ha[d] nothing to do with fixing tickets.” Indeed, the trooper at the scene of the stop “issued a criminal citation for operating under the influence, albeit with respect to a different substance” (alcohol) than the one originally cited (drugs). Moreover, “[t]he trooper was unaware of the defendant’s blood alcohol level at the time he issued the original citation.” “The case law, however, has added a gloss to the statute,” concluding that there was a “subsidiary purpose[] within the ‘declared’ purpose of the statute [uniformity of prosecution] as it was originally written.” That subsidiary purpose was “‘to afford prompt and definite notice of the nature of the alleged offense to the putative violator.’ Commonwealth v. Pappas, 384 Mass. 428, 431 (1981). ‘The statute … [was] designed to prevent a situation in which a person cannot establish a defence due to his being charged with a violation long after it occurs.’ Id., quoting Commonwealth v. Gorman, 356 Mass. 355, 357-358 (1969).” “Thus, where the purpose of [the statute] to afford prompt and definite notice of the nature of the alleged offense to the putative violator has not been met, the failure to provide a citation at the time and place of the incident cannot be excused.” Moreover, “our courts have concluded that the defendant need not show any actual prejudice from the delay.” Here, the defendant did not receive notice of the nature of the alleged offense (OUI-liquor, as distinct from OUI-drugs) until fifteen months after the stop. Therefore, stated the Appeals Court, “[w]e are … constrained to conclude that … the order dismissing the complaint must be affirmed.”

If you or a loved one has been charged with a motor vehicle offense and the officer failed to provide you with a citation at the time of the incident, you may be in a position to file a motion to dismiss the charge(s) under the “no fix” statute.  Attorney Daniel Cappetta has successfully defended numerous motor vehicle charges on this ground, as well as others.  Call him today and put his expertise to work for you.

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