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SJC-12445

                COMMONWEALTH   vs.   RICHARD O'LEARY.



            Norfolk.    March 5, 2018. - July 12, 2018.

   Present:    Gants, C.J., Gaziano, Lowy, Cypher, & Budd, JJ.


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



     Indictments found and returned in the Superior Court
Department on September 23, 2014.

    A motion to dismiss was heard by Beverly J. Cannone, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Douglas T. Babcock for the defendant.
     Pamela Alford, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.    The defendant, Richard O'Leary, asks this court

to determine whether the Commonwealth met its burden of proving

compliance with the citation requirement of G. L. c. 90C, § 2,

which mandates the issuance of a traffic citation "at the time
                                                                    2


and place of the violation," despite the fact that a State

police trooper did not issue a traffic citation at the scene of

the violation or at the hospital following the interviews he

conducted.   Instead, before issuing the citation, the trooper

submitted an accident report to his supervisor for approval,

which the trooper received nine days later.   Because we consider

this unexplained, nine-day delay in the citation's issuance to

be inconsistent with one of the two legislative purposes of the

"no-fix" provision -- specifically, the antiabuse purpose -- we

affirm the dismissal of the indictments.

    Facts and procedural history.    We 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. Burnham, 90 Mass. App. Ct. 483, 484 n.1

(2016), citing Commonwealth v. Eckert, 431 Mass. 591, 592

(2000).   Around 10:30 P.M. on April 19, 2014, State police

Trooper Jared Gray responded to an accident on a highway off-

ramp.   Gray arrived to find that a single vehicle had rolled

over and dislodged a highway sign; the police had closed the

off-ramp, and emergency medical services were at the scene.      Two

individuals, the defendant and a passenger, Patricia Murphy, had

been injured in the accident.   Both the defendant and Murphy

claimed to be passengers in the vehicle, and both were

transported to a hospital.
                                                                     3


     Gray followed the ambulances to the hospital to interview

the defendant and Murphy.    He left his citation book in his

vehicle.   He first spoke with Murphy, who reiterated that she

had been a passenger in the vehicle.     During this interview, it

appeared to Gray that Murphy was intoxicated.    Gray then spoke

with the defendant.   Gray gave the defendant Miranda warnings,

and the defendant admitted that he had been the driver of the

vehicle and that he had had "a couple of beers."    The

defendant's "eyes were glassy" and "his speech was slurred."       At

the time of the accident, the defendant was on probation for

operating a motor vehicle while under the influence of alcohol

(OUI), subsequent offense.   His license had been suspended, and

he was not legally permitted to drive.    Gray informed the

defendant that he would be receiving a summons in the mail for

OUI, a marked lanes violation, and operating with a suspended or

revoked license.

     Gray did not issue a citation at that time.    Gray later

submitted his investigation report to his supervisor, who

approved the report nine days later, on April 28, 2014.1      On that

day, Gray issued citations to the defendant for a marked lanes

violation, operation of a motor vehicle with license suspended


     1 State police trooper Jared Gray testified at the motion to
dismiss hearing that, upon leaving the hospital, his shift was
over so he went home. The record does not establish exactly
when Gray submitted the report to his supervisor.
                                                                    4


for OUI, operation of a motor vehicle with license revoked, and

OUI, fifth offense.    Gray then placed the citations in the

barracks mailbox.2    Due to a ZIP code error in the State police

reports system, however, the defendant did not receive the

citation until approximately five to six weeks after the

incident.

     A Superior Court judge granted the defendant's motion to

dismiss on the grounds that Gray had failed to issue a citation

"at the time and place of the violation," as required under § 2,

and because the Commonwealth did not meet its burden of

demonstrating that an exception in § 2 applied.    The Appeals

Court reversed, holding that the case fit within the third

statutory exception, which excuses delayed delivery of citation

"where the court finds that a circumstance, not inconsistent

with the purpose of [§ 2] . . . , justifies the failure."

Commonwealth v. O'Leary, 92 Mass. App. Ct. 282, 284, 286-287

(2017), quoting G. L. c. 90C, § 2.    While noting that there did

not appear to be "any strong reason for the delay" in issuing

the citation, id. at 286, the court considered dismissal

unnecessary where "there was no manipulation or misuse of the


     2 Gray testified that, when sending mail, officers from his
department "put mail in our barracks mail box. That barracks
mail box is transported to headquarters in Middleboro, and then
sent out from there." He agreed that "it would have been at
least several days" between when he placed an item in the mail
box and when that item was mailed.
                                                                  5


citation, and [Gray] notified the defendant as soon as he had

completed his interview . . . that a citation would be issued."

Id. at 286-287, quoting Commonwealth v. Moulton, 56 Mass. App.

Ct. 682, 685 (2002).   We granted the defendant's motion for

further appellate review.

    Discussion.    Section 2 requires a police officer assigned

to traffic enforcement duty to

    "record the occurrence of automobile law violations upon a
    citation, filling out the citation and each copy thereof as
    soon as possible and as completely as possible . . . .
    Said police officer shall inform the violator of the
    violation and shall give a copy of the citation to the
    violator. . . . 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 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. In
    such case the violation shall be recorded upon a citation
    as soon as possible after such violation . . . ."3

    In 1965, then Governor John A. Volpe proposed what has been

referred to as the "no-fix" provision, in response to the

concern that "[t]he nature of traffic citations renders them

uniquely suited to manipulation and misuse."   Commonwealth v.

Pappas, 384 Mass. 428, 431 (1981), citing 1965 Senate Doc. No.

839, at 2.   See Newton Police Ass'n v. Police Chief of Newton,

    3  The relevant statutory language took its present form in
1985 through St. 1985, c. 794, § 3. See Newton Police Ass'n v.
Police Chief of Newton, 63 Mass. App. Ct. 697, 700 n.5 (2005).
                                                                     6


63 Mass. App. Ct. 697, 699 (2005).    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.

    By inserting § 2 in the statute to require the issuance of

a citation "at the time and place of the violation," the

Legislature sought to eliminate "opportunity for subsequent

maneuvering or pressure" that the prior three-day approval

window created.   1965 Senate Doc. No. 839, at 2.   See Newton

Police Ass'n, 63 Mass. App. Ct. at 700-701 (in enacting § 2,

Legislature deliberately transferred discretion from police

chief to police officer at scene to deal with perceived evil of

traffic citation manipulation).

    "Where the requirements of the statute are not followed,

the complaint shall be dismissed regardless of whether the

defendant was prejudiced by the failure."    Commonwealth v.

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

Mullins, 367 Mass. 733, 735 (1975).    In this case, it is

undisputed that the defendant did not receive "a copy of the

citation . . . at the time and place of the violation."      G. L.
                                                                     7


c. 90C, § 2.   It is therefore the Commonwealth's burden to

establish that one of the three statutory exceptions applies.

See Mullins, supra at 734-735.

     The Commonwealth argues that the third statutory exception

applies in these circumstances.    This exception excuses the

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

time and place of the violation . . . 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, § 2.4   The defendant maintains that the

third exception does not apply to these facts, and argues

further that, even if it does, the case still must be dismissed

in light of additional statutory language requiring that a

citation be issued "as soon as possible" after the violation.

     We determine the applicability of the third exception with

reference to the dual purposes of § 2.    The first purpose, which

"is apparent from the common name of the statute, the 'no-fix'


     4 The first exception, which excuses immediate issuance of a
citation "where the violator could not have been stopped," is
not applicable here. Nor do these facts support an application
of the second exception, "where additional time was reasonably
necessary to determine the nature of the violation or the
identity of the violator." G. L. c. 90C, § 2. The Superior
Court judge observed that "[t]he defendant was present at the
scene of the accident and Gray completed his investigation into
the nature of the violation and the identity of the violator by
the time he left [the hospital]."
                                                                    8


law," Pappas, 384 Mass. at 431, is to prevent "manipulation or

misuse of the citation process because of any unnecessary or

unreasonable delay."   Commonwealth v. Cameron, 416 Mass. 314,

316 n.2 (1993), citing Pappas, supra.   The second purpose is "to

afford prompt and definite notice of the nature of the alleged

violation to the putative violator."    Pappas, supra.   We also

bear in mind the principle that, under the no-fix statute,

"[e]ach case must be decided on its own peculiar facts."

Commonwealth v. Provost, 12 Mass. App. Ct. 479, 484 (1981).

    In the trial court and before us, the Commonwealth's

arguments have focused primarily on whether the defendant was

placed on notice of the impending criminal charges, such that

the notice purpose of the no-fix statute was satisfied.     To be

sure, in some cases (including those on which the Commonwealth

relies), the question of notice was dispositive of whether the

third exception in § 2 applied, because the circumstances of

those cases did not also implicate the antiabuse purpose of the

no-fix provision.   See, e.g., Cameron, 416 Mass. at 316 n.2

("The other purpose of the 'no-fix' law is not involved in this

case.   There is no suggestion of manipulation or misuse of the

citation process because of any unnecessary or unreasonable

delay"); Moulton, 56 Mass. App. Ct. at 683, 685 (no-fix purpose

of statute satisfied where "there was no manipulation of misuse

of the citation," and officer promptly issued citation to
                                                                       9


defendant on day of accident); Commonwealth v. Kenney, 55 Mass.

App. Ct. 514, 518 (2002) ("The defendant makes no contention

that the 'no-fix' ticket manipulation aspect of the statute is

implicated.   Rather, the defendant's principal claim rests upon

the notice provision").

     Here, however, the facts mandate that we also consider

whether the antiabuse purpose of § 2 has been satisfied.     We

conclude that it has not.   Gray did not give the defendant a

citation at the scene of the accident or at the hospital.       This

is despite the fact that "[t]he defendant was present at the

scene of the accident and Gray completed his investigation into

the nature of the violation and the identity of the violator by

the time he left [the hospital]."   Rather, Gray returned to the

police station, drafted an accident report, and submitted that

report to his supervisor -- who took nine days to approve Gray's

report.   Only then did the citation issue.    The Superior Court

judge deemed this delay "[i]nexplicabl[e]."5    What is more,

Gray's testimony at the hearing indicates that the approval

process and ensuing delay were attributable to the regular

procedure of his department:


     5 The Appeals Court observed in its opinion that "there does
not appear to have been any strong reason for the delay," adding
that it "[did] not condone Trooper Gray's election to await
review and 'approval' of his report by his supervisor before
issuing a citation." Commonwealth v. O'Leary, 92 Mass. App. Ct.
282, 286 & n.8 (2017).
                                                                    10


    Q.: "Now, after you had left the hospital, what is the
    procedure you underwent to inform [the defendant] of the
    charges?"

    A.: "Basically when it's a summons, we go back; we
    complete our investigation, write the report, print out the
    documentation, submit it to a supervisor. A supervisor
    then approves that report. Once it's approved, you print
    it and submit all your court paperwork. At that time, I
    wrote the citation and put it in the mail for [the
    defendant]."

    The third exception of G. L. c. 90C, § 2, excuses delayed

delivery of a citation where "a circumstance, not inconsistent

with the purpose of this section . . . , justifies the failure."

As mentioned, the no-fix provision was added to § 2 to eliminate

not only actual manipulation or misuse of the citation process,

but also the "'opportunity for subsequent maneuvering or

pressure' afforded by the [prior] three-day [approval] period"

(emphasis added).     Newton Police Ass'n, 63 Mass. App. Ct. at

699, quoting 1965 Senate Doc. No. 839.     Under the earlier

practice that the Legislature sought to eliminate, an officer on

traffic duty would record the citation and submit it to

headquarters for later approval by the officer's supervisors.

Newton Police Ass'n, supra.

    The circumstances that caused the delay in this case are

strikingly similar:    rather than issue a citation "at the time

and place of the violation," G. L. c. 90C, § 2, Gray drafted an

accident report and submitted it to his supervisor, whose

approval was necessary for the citation to issue.     It was this
                                                                   11


very practice of traffic officers requiring supervisory

approval, and the delay in time that this created between the

traffic violation and the ultimate issuance of the citation,

that the Legislature deemed too great an "opportunity for

subsequent maneuvering or pressure."     Newton Police Ass'n, 63

Mass. App. Ct. at 699, quoting 1965 Senate Doc. No. 839.     Here,

the delay was for an "[i]nexplicabl[e]" nine days.    We cannot

conclude, based on the history and antiabuse purpose of the no-

fix provision, that these circumstances somehow remain

"[]consistent with the purpose of [§ 2]."    G. L. c. 90C, § 2.

Even if it were undisputed that the defendant received

sufficient notice of the impending charges against him, this

same fundamental problem would remain.

    The Commonwealth argues that the accident itself was so

serious that it created an "ineradicable record of the event,"

Carapellucci, 429 Mass. at 581, such that any potential for a

"fix" was eliminated.   Indeed, our cases recognize that "the

very seriousness of particular charges tends to minimize the

importance of absolute observance of the [citation] procedures

because . . . 'fix' is virtually excluded, and notice is

implicit."   Commonwealth v. Babb, 389 Mass. 275, 283 (1983).      In

Pappas, 384 Mass. at 431-432, for example, where the defendant's

vehicle "crossed the center line of a public street and struck a

pedestrian," causing fatal injuries, we acknowledged that it was
                                                                   12


"unlikely in such circumstances that police officers responding

at the scene would regard this as a minor accident in which

their discretion concerning whether to issue a citation would be

absolute and unchecked."   See Babb, supra at 284, citing Pappas,

supra (same).   On the other hand, in Carapellucci, 429 Mass. at

580, the defendant's vehicle collided head on with a lamp post,

resulting in minor injuries to the defendant's passenger.      This

court observed that that was "not a case in which the serious

injuries resulting from the traffic violation . . . put the

defendant on notice of the potential charges against him and

created an ineradicable record of the event."    Id. at 581,

citing Pappas, supra at 431.    See Carapellucci, supra at 582

(no-fix purpose furthered by "the causing of a serious injury,

which creates such a record that manipulation is extremely

unlikely").

     This case hews more closely to Carapellucci, as it involves

only a single-vehicle accident in which no third person was

injured (let alone injured seriously or fatally).    To be

certain, the accident in this case was significant:    the

defendant's vehicle rolled over, the defendant and Murphy were

transported to the hospital on stretchers, and Murphy testified

that she broke several ribs.6   However, the Commonwealth -- whose


     6 As the Appeals Court noted, "[t]here are no medical
records pertaining to the injuries suffered by the defendant or
                                                                  13


burden it is to establish that a statutory exception in § 2

applies -- cites no authority holding that such a single-vehicle

accident involving nonfatal injuries to a passenger but no third

person creates an "ineradicable record of the event," such that

the antiabuse purpose of § 2 is satisfied.   Carapellucci, 429

Mass. at 581.   Cf. Burnham, 90 Mass. App. Ct. at 490 ("we are

unaware of any authority, and the Commonwealth cites to none,

which has held that a single-[vehicle] accident, standing alone,

provides a defendant with sufficient implied notice that

satisfies the requirements of G. L. c. 90C, § 2").

     Conclusion.   While "failure to comply with [the citation

requirement of § 2] is not fatal where the purposes of the

statute have not been frustrated," Babb, 389 Mass. at 283, here,

one of those purposes has been frustrated.   The nine-day delay

in the issuance of the citation, in the absence of any

justification (legitimate or otherwise), contravenes the

original, antiabuse purpose of the statute, such that the third

exception in § 2 does not apply.7   "[W]here an important feature




Murphy in the record before us. However, Murphy testified that
she suffered several broken ribs." O'Leary, 92 Mass. App. Ct.
at 283 n.3.

     7 Given our holding that the antiabuse purpose of the no-fix
provision was frustrated by the initial nine-day delay in the
citation's issuance, we need not address the additional five to
six weeks that it took for the defendant to actually receive the
citation. Nor do we address the defendant's additional argument
                                                                  14


of the statutory arrangements was flouted through sloth or sheer

inattention of the police, the subsequent complaint [must be]

dismissed."   Commonwealth v. Perry, 15 Mass. App. Ct. 281, 283

(1983), citing Mullins, 367 Mass. at 735-736.    The order

dismissing the complaint against the defendant is affirmed.

                                   So ordered.




that the citation was not issued "as soon as possible" after the
violation, as required under § 2.
