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18-P-666                                             Appeals Court

                COMMONWEALTH   vs.   JANICE J. WERRA.


                           No. 18-P-666.

       Plymouth.       December 11, 2018. - July 17, 2019.

           Present:    Rubin, Milkey, & McDonough, JJ.


Motor Vehicle, Operating under the influence, Citation for
     violation of motor vehicle law. Practice, Criminal,
     Citation for violation of motor vehicle laws, Dismissal.
     Notice.


     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.


    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
                                                                     2


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 P.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
                                                                     3


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
                                                                   4


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
                                                                        5


Trooper Donahue on July 29, 2015, along with five pages from 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, October 13, 2016, the trial date scheduled

for the OUI-drugs charge, the Commonwealth appeared in court.

The docket indicates that the Commonwealth was "unable to

proceed."   There is no further explanation, nor have we been

provided with a transcript of the court session on that date.

On that same date 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, after the defendant had been

arraigned on that complaint, 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.       The

Commonwealth now appeals.

    Discussion.    The so-called no-fix statute, G. L. c. 90C,

§ 2, was adopted in 1965.    See St. 1965, c. 692, § 3.     The

current version of § 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 in any court proceeding for such violation, except
    where the violator could not have been stopped or where
    additional time was reasonably necessary to determine the
                                                                     6


    nature of the violation or the identity of the violator, or
    where the court finds that 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 purpose of this statute, as the Supreme Judicial Court

has recently explained, was "to eliminate 'opportunity for

subsequent maneuvering or pressure'" that the prior system,

which included a three-day approval window, created.

Commonwealth v. O'Leary, 480 Mass. 67, 70 (2018), quoting 1965

Senate Doc. No. 839, at 2.    "Prior to the provision's insertion,

a 'police officer who witnessed a traffic offense would record

the violation on a citation form and submit it to police

headquarters.    Within three days from the receipt of the

citation, the police chief or a designated officer of at least

sergeant grade would decide [how] to proceed' -- for instance,

by issuing a written warning or court complaint, or by voiding

the citation."   Id., quoting Newton Police Ass'n v. Police Chief

of Newton, 63 Mass. App. Ct. 697, 699 (2005).    Then-Governor

John A. Volpe stated, in a special message to the Legislature

proposing the no-fix traffic ticket bill, that this three-day

period created the "opportunity for subsequent maneuvering or

pressure."   1965 Senate Doc. No. 839, at 2.   Presumably, this

ordinarily meant pressure for reasons other than legitimate law

enforcement to void the citation, that is, to "fix" the ticket,

or perhaps to provide a written warning rather than any other
                                                                     7


disposition.   The discretion placed in a higher ranking officer

might also have been used arbitrarily to proceed more harshly

than was warranted against a disfavored person who had been

cited.   Under § 2 the discretion thus was removed, and the

decision to issue the citation was placed in the hands of the

officer on traffic duty.

    The OUI-liquor citation at issue in this case was not given

to the "violator at the time and place of the violation."     G. L.

c. 90C, § 2.   Consequently, the defendant was entitled to

dismissal of the complaint unless the late issuance of the

citation fell within one of the three exceptions to the rule

that a failure to give a copy of the citation to the violator at

the time and place of the violation provides a defense in any

subsequent court proceeding on that violation.

    The Commonwealth does not contend that this is a

circumstance in which the violator could not have been stopped

-- she was stopped, and indeed, given a citation, though for

OUI-drugs rather than OUI-liquor.    If there is uncertainty as to

the cause of a driver's impairment, the second exception to the

no-fix statute gives the Commonwealth whatever time is

"reasonably necessary" to determine what precisely caused the

impairment.    But the Commonwealth does not here contend that the

additional time was "reasonably necessary to determine the

nature of the violation or the identity of the violator," G. L.
                                                                    8


c. 90C, § 2, presumably because, although there was an open

container of alcohol in the car, the police did not issue the

citation for OUI-liquor until the day before trial on the OUI-

drugs charge, some sixteen months after the incident, and some

five months after the Commonwealth obtained the defendant's

medical records, themselves only summonsed eight months after

the incident that led to the initial citation.   The Commonwealth

argues only that this falls within the third exception, for

cases "where the court finds that 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."   G. L.

c. 90C, § 2.   It is to that exception that we now turn.

    The third exception.    As originally enacted, the third

exception applied in cases "where the court finds that some

other circumstance, not inconsistent with the purpose of this

section, namely, to cause violators of automobile law to be

brought uniformly to justice, justifies the failure."      St. 1965,

c. 692, § 3.   In 1982, G. L. c. 90C was struck and rewritten,

and the exception was changed to cover cases "where the court

finds that a circumstance, not inconsistent with the purpose of

this section to create a uniform and simplified method for

disposing of violations of automobile law, justifies the

failure."   St. 1982, c. 586, § 2.   Sections 2 through 4 of G. L.
                                                                      9


c. 90C were once again struck and rewritten in 1985, which added

that the purpose of the section was to create a "uniform,

simplified and non-criminal method for disposing of automobile

law violations" (emphasis added).    St. 1985, c. 794, § 3.   This

is how the statute reads today.     Consistent with the legislative

purpose to stop manipulation and misuse of the citation process,

in a criminal case like this, the relevant language, as

initially enacted and as amended, focuses on uniformity.

    In this case the circumstance alleged to have caused the

failure to issue the citation has nothing to do with fixing

tickets, and it appears to have nothing to do with manipulation

of the use of traffic citations to charge the defendant, or to

charge her more harshly, after an initial determination by the

trooper was made not to do so.    The trooper himself issued a

criminal citation for operating under the influence, albeit with

respect to a different substance, so the statutory punishment

was precisely the same under both citations.     The evidence at

the scene supported the issuance of that citation.     The trooper

was unaware of the defendant's blood alcohol level at the time

he issued the original citation, and the original charge was

consistent with the defendant's own statement that she had taken

methadone prior to driving the vehicle.

    In any criminal case not involving an automobile, the

defendant would be subject to being charged so long as the
                                                                  10


statute of limitations had not run, and would have available to

her all defenses other than that in the no-fix statute.     In

these circumstances, the terms articulated in the plain language

of the third exception would appear to be met.

    The case law, however, has added a gloss to the statute.

Early on, our courts concluded that there were actually two

subsidiary purposes within the "declared" purpose of the statute

as it was originally written, that is, "to cause violators of

automobile law to be brought uniformly to justice."   St. 1965,

c. 692, § 3.   They are not only to prevent manipulation and

misuse of traffic citations, but also "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 . . . is 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).

    This gloss has been carried over without discussion under

the twice-amended language of the third exception so that

failure to provide a citation at the time and place of the

incident has been held not fatal to a subsequent prosecution

because of this exception only where the reason for delay is

consistent with these two subsidiary purposes.    See, e.g.,

Commonwealth v. Perry, 15 Mass. App. Ct. 281, 282 (1983).      Thus,
                                                                   11


where the purpose of G. L. c. 90C, § 2, 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.   Cf. Commonwealth v. Cameron, 416 Mass. 314, 317-318

(1993).    Indeed, in a relatively recent decision applying the

third exception, we concluded that even late-discovered evidence

of OUI-liquor could not justify a new citation for someone cited

at the scene with driving with a suspended license because "the

defendant did not have prompt and definite notice of the offense

for which he was charged."    Commonwealth v. Burnham, 90 Mass.

App. Ct. 483, 490 (2016).

    The statute by its terms requires no showing of prejudice

and, even though the purpose of providing notice might be viewed

as a judicial gloss on the statutory language, our courts have

concluded that the defendant need not show any actual prejudice

from the delay.   See Perry, 15 Mass. App. Ct. at 283.   Indeed,

the Supreme Judicial Court just last year reiterated that

"[w]here the requirements of the statute are not followed, the

complaint shall be dismissed regardless of whether the defendant

was prejudiced by the failure."    O'Leary, 480 Mass. at 70,

quoting Commonwealth v. Carapellucci, 429 Mass. 579, 581 (1999).

    We are therefore constrained to conclude that because of

the absence of "prompt and definite notice of the nature of the
                                                                   12


alleged offense" the order dismissing the complaint must be

affirmed.    The Commonwealth's argument to the contrary is that

the defendant was charged with an impairment offense and had

sufficient notice of that fact through the initial citation.

But, as described above, the Supreme Judicial Court has

explained that the requirement of prompt and definite notice "is

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."     Pappas, 384 Mass. at 431, quoting

Gorman, 356 Mass. at 357-358.    Although OUI-drugs and OUI-liquor

require the Commonwealth to prove certain common elements, they

also require the Commonwealth to prove different ones, and the

evidence and defenses with respect to one charge are not always

applicable to the other.    See Commonwealth v. Gerhardt, 477

Mass. 775, 783-784, 786 (2017) (because "[t]he scientific

community has not reached a consensus whether a defendant's

performance on [field sobriety tests] is correlated with

marijuana use or impairment," they may not be referred to in

OUI-marijuana case as "tests," nor may officer opine that

defendant "failed" one; unlike alcohol intoxication, because

"there is no scientific consensus on what, if any, physical

characteristics indicate marijuana intoxication, no lay opinion

can be admissible as common knowledge or understanding on that

subject").   Although the defendant asserts that the
                                                                  13


"unreasonable delay in the issuance of the proper citation in

this case certainly created a situation where [she] could not

establish a defense to OUI-[l]iquor," she has not described any

way in which she was prejudiced by the delay, but, as described

above, under the law we are required to apply, that failure is

immaterial.   Consequently the order dismissing the OUI-liquor

complaint must be affirmed.

                                   So ordered.
