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15-P-826                                            Appeals Court

           COMMONWEALTH   vs.    CHRISTOPHER J. BURNHAM.


                             No. 15-P-826.

       Hampshire.     April 13, 2016. - October 13, 2016.

           Present:   Wolohojian, Agnes, & Neyman, JJ.


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


     Indictment found and returned in the Superior Court
Department on May 6, 2014.

    A motion to dismiss was heard by Mary-Lou Rup, J.


     Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.
     James Petersen for the defendant.


    NEYMAN, J.   The defendant, Christopher J. Burnham, was

involved in a single-car accident, and indicted for operating a

motor vehicle while under the influence of intoxicating liquor

(OUI), subsequent offense.    The defendant filed a motion to

dismiss the charge, claiming that the citation for OUI was not
                                                                   2


issued in compliance with G. L. c. 90C, § 2.   Following an

evidentiary hearing, a Superior Court judge allowed the motion.

    The sole issue on appeal is whether the issuance of a

citation to the defendant, more than four and one-half months

after the police officers had concluded their investigation,

violated the provisions of G. L. c. 90C, § 2, and mandated

dismissal of the indictment.   Where the defendant did not have

prompt and definite notice of the offense for which he was

charged, and the delay in issuing the citation was not justified

under any of the exceptions to the statutory requirement to

provide the citation at the time and place of the violation,

dismissal was warranted.

    Background.   We summarize the judge's findings.1     In the

early morning of November 24, 2013, Officers Kyle Gribi and Eric

Alexander of the Easthampton police department arrived at the

scene of a single-car accident.   Officer Gribi, trained as an

emergency medical technician, observed and attended to the

driver (the defendant), who "was unresponsive, but later

regained consciousness."   Officer Gribi stabilized the

defendant's cervical spine and maintained his airway.

Approximately ten minutes after the officers' arrival, an

ambulance arrived and took the defendant to Baystate Medical

    1
       Neither party on appeal challenges the judge's factual
findings, which we accept "absent clear error." Commonwealth v.
Eckert, 431 Mass. 591, 592 (2000).
                                                                     3


Center (Baystate).    The officers did not accompany the defendant

to the hospital.     The judge credited testimony that "neither

officer detected any indicia of the defendant being intoxicated

during their investigation of the scene."

     While at the scene, Officer Alexander learned that the

defendant's license had been suspended, and Officer Gribi

subsequently issued a citation against the defendant for

"operating after suspension" and a "marked lanes" violation (the

Easthampton charges).2    The officers' investigation "ended in

good faith when Officer Gribi issued and caused to be mailed to

the defendant a citation for marked lanes violation."3

     Three months later, on February 23, 2014, the defendant was

arrested in Northampton for an unrelated incident and charged

with OUI.   Upon reviewing the Northampton OUI charge and

inspecting the defendant's probation record, the prosecutor

learned of the Easthampton charges still pending in Northampton

District Court.    The prosecutor initiated an independent

investigation into the Easthampton charges and obtained the

defendant's medical records from Baystate, relating to the

treatment he received as a result of the earlier Easthampton

     2
       The citation is dated November 24, 2013, the date of the
accident.
     3
       At the hearing on the motion to dismiss, the officers
testified that no further investigation was conducted after the
accident scene had cleared and the citation for operating after
suspension and a marked lanes violation had issued.
                                                                      4


incident.4   The medical records included a toxicology report that

revealed that the defendant had an "ethanol level on the night

of the Easthampton incident [that] translated to a blood alcohol

concentration of 0.18 [per cent]."   On April 16, 2014, the

prosecutor relayed this information to Officer Gribi and

instructed him to issue a citation for OUI to the defendant.

That same day, Officer Gribi issued and delivered a citation for

OUI to the defendant at his home.

     Discussion.   1.   Statutory framework.   General Laws c. 90C,

§ 2, as appearing in St. 1985, c. 794, § 3, commonly known as

the "no-fix" law, provides in relevant part:

     "any police officer assigned to traffic enforcement duty
     shall . . . record the occurrence of automobile law
     violations upon a citation, filling out the citation and
     each copy thereof as soon as possible . . . . 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" (emphasis added).

     Thus, the statute mandates that citations be delivered to

an alleged offender at the time and place of the violation,

     4
       The prosecutor obtained the defendant's medical records by
filing a motion in the Superior Court on March 7, 2014,
requesting production of the records for presentation to a grand
jury. On March 10, 2014, a Superior Court judge allowed the
motion, and on April 3, 2014, Baystate delivered the records to
the Superior Court clerk's office.
                                                                       5


subject to three exceptions.   Where, as here, the citation was

not delivered at the accident scene, the Commonwealth bears the

burden to establish the applicability of an exception.       See

Commonwealth v. Correia, 83 Mass. App. Ct. 780, 783 (2013).         The

Commonwealth asserts that the second and third exceptions

applied to the present case and justified the delayed delivery.

We analyze both, in turn, keeping in mind the two fundamental

purposes of the statute:    (1) prevention of "manipulation and

misuse" of citations; and (2) "prompt and definite notice" to

the alleged violator of the nature of the offense.      Commonwealth

v. Pappas, 384 Mass. 428, 431 (1981).     In addition, there is no

bright-line rule to ascertain whether a particular delay in

issuing a citation is justified.    Rather, "[e]ach case must be

decided on its own peculiar facts."     Commonwealth v. Provost, 12

Mass. App. Ct. 479, 484 (1981).

    2.   The second exception.     The second exception to the

requirements of G. L. c. 90C, § 2, excuses delayed delivery of a

citation where "additional time was reasonably necessary to

determine the nature of the violation."     Pappas, supra.    The

Commonwealth contends that neither officer detected any indicia

of intoxication from the defendant; thus, the nature of the

violation was unclear, and additional time was reasonably

necessary to investigate.   Based on the prosecutor's

investigation, facts justifying the OUI charge became apparent,
                                                                    6


which prompted the Commonwealth to immediately issue a citation

to the defendant.    Accordingly, the Commonwealth posits, the

letter of the statute was satisfied.

    The defendant counters that the Commonwealth's argument

fails, because Massachusetts courts have applied the second

exception in cases involving "continuing" or "ongoing" police

investigations.   He argues that, here, the investigation was not

ongoing, as evidenced by the officers' admission that it had

concluded at the accident scene, four and one-half months prior

to the citation issuing.   The Commonwealth does not challenge,

in its brief or at oral argument, the notion that the second

exception must involve an ongoing investigation.   Instead, it

claims that the prosecutor's review of the case and request for

the defendant's medical records constituted an ongoing

investigation.

    We take this opportunity to clarify that the second

exception speaks to "additional time . . . reasonably necessary

to determine the nature of the violation," and does not contain

the nomenclature "ongoing" or "continuing" investigation.     See

G. L. c. 90C, § 2.   Although our common law has interpreted the

second exception, in some instances, to involve further

investigative work in analyzing what is "reasonably necessary"
                                                                   7


within the statutory framework,5 our courts have not adopted a

bright-line rule that an investigation must be continuous or

ongoing to justify the application of the second exception, and

we decline to do so here.     The ongoing nature of an

investigation may be a significant factor in discerning the

reasonableness of any delay in issuing a citation,6 but neither

its presence nor absence is dispositive of the issue.    See,

e.g., Commonwealth v. Barbuto, 22 Mass. App. Ct. 941, 942-943

(1986) (although "[f]or a substantial portion of the period

between the accident and the issuance of the citations, the

investigating officer had a suspect but failed to take active

steps to pursue the investigation," 174-day delay in issuing

citation for leaving scene of accident after causing personal

injury was justified, where additional time was reasonably


     5
       See, e.g., Provost, supra at 482-483, 485 (twenty-day
investigation into serious collision, followed by seven-day
delay caused by officer "analyz[ing] and integrat[ing]
information already collected," justified); Commonwealth v.
Perry, 15 Mass. App. Ct. 281, 283 (1983) (no undue delay where
citation "was prepared as soon as the investigation and assembly
of the facts, including the fact of the death, permitted");
Commonwealth v. Gammon, 22 Mass. App. Ct. 1, 7-8 (1986)
(contradiction between nurse's information that defendant was
intoxicated and police officers' observations warranted "further
investigation by the police" and justified twenty-six day delay
in issuing citation for OUI); Commonwealth v. Moulton, 56 Mass.
App. Ct. 682, 684 (2002) (officer "did not actually complete his
investigation into the nature of the accident until he had
interviewed the defendant after she had been stabilized at the
hospital").
     6
         See note 5, supra.
                                                                    8


necessary to determine identity of violator).    We continue to

adhere to our precedent of deciding each case on its unique

facts.    See Provost, supra at 484.

     The facts in the present case do not support the

application of the second exception.    The officers did not seek

information from Baystate, nor did the circumstances at the

scene present any indicia that the defendant was intoxicated.

The officers admitted that they had concluded their

investigation the day of the incident and, as the judge found,

did not believe that "additional time was reasonably necessary

to determine the nature of the violation."    The Commonwealth

responds that although the officers had concluded their

investigation, the prosecutor had not, as evidenced by the open

case alleging operating after suspension and a marked lanes

violation, and by the ensuing grand jury investigation.     This

argument is unpersuasive.    Months had passed until the

prosecutor, on a hunch spurred by the defendant's subsequent

arrest in an unrelated matter, commenced an investigation

regarding the defendant's potential intoxication on November 24,

2013.    The information ultimately sought and obtained by the

Commonwealth had been available all along.    We agree with the

judge's conclusion that "the defendant's subsequent arrest in

Northampton did not provide previously unavailable information

regarding the Easthampton incident; rather it was a coincidence
                                                                    9


that instigated the renewed, independent investigation by [the

prosecutor]."   Accordingly, the Commonwealth failed to

demonstrate that more time was reasonably necessary to determine

the nature of the offense within the meaning of the second

exception to G. L. c. 90C, § 2.7

     The shortcoming of the Commonwealth's argument is further

apparent when we consider, as we must, the objectives of the

statute.8   At issue is the requirement to give prompt and

definite notice to the alleged offender.9   See Commonwealth v.

Babb, 389 Mass. 275, 283 (1983).   The Commonwealth contends that

the defendant "did have some notice" where, on the night of the

accident, Officer Gribi cited the defendant for "operating after

suspension and a marked lanes violation."   We disagree.     In view

of the officers' testimony that there was no indicia of the

     7
       We do not speculate as to what scenarios may justify the
resuming or reopening of an investigation without violating
G. L. c. 90C, § 2. We merely hold that under the particular
facts of this case, the four and one-half month delay in issuing
a citation to the defendant for OUI does not fall within the
second exception to the requirements G. L. c. 90C, § 2.
     8
       The facts of this case do not implicate the objective to
prevent manipulation and misuse of citations. To the contrary,
the judge specifically found that "[n]o evidence suggests that
the police were slothful in opting not to continue the
investigation," and that the officers and the prosecutor acted
in "good faith." The record supports this finding.
     9
       In this regard, we are mindful of the statutory language
that requires law enforcement to "record the occurrence of
automobile law violations upon a citation, filling out the
citation and each copy thereof as soon as possible" (emphasis
supplied). G. L. c. 90C, § 2.
                                                                   10


defendant's intoxication at the scene, the officers' testimony

that the investigation had concluded at the scene, the passage

of several months without any investigation by the Commonwealth,

and the absence of any actual or implicit notice to the

defendant that further charges may be forthcoming, notice to the

defendant was neither prompt nor definite.      See Commonwealth v.

Riley, 41 Mass. App. Ct. 234, 237 n.4 (1996) (earlier citation

for civil motor vehicle infractions and operating to endanger

"would not suffice to serve notice of the potential of an

operating while under the influence charge to be lodged against

[the defendant]").

    3.      The third exception.   The third exception to the

requirements of G. L. c. 90C, § 2, is a "safety valve," which

excuses delayed delivery of a citation 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."    Id. at 236, quoting from § 2.    Within this exception,

our case law has recognized that, in the face of a serious

incident, notice is implicit and the requirements of the statute

are "flexibly applied."     Commonwealth v. Russo, 30 Mass. App.

Ct. 923, 925 (1991).    See Pappas, 384 Mass. at 431 (notice

requirement under statute "has little relevance when applied to

more serious crimes").     In such cases, the purposes of the
                                                                  11


statute are not frustrated and "failure to comply strictly with

its requirements has not been fatal to the prosecution."

Barbuto, supra at 943.   In concept, the Commonwealth is correct.

In application to the instant case, it is not.

    The cases justifying delayed delivery of a citation based

on implicit (or explicit) notice are all distinguishable from

the present case.   In those cases notice was sufficient because

the circumstances involved serious injuries to third parties, an

arrest of the defendant, more serious charges requiring obvious

investigation such as motor vehicle homicide or leaving the

scene after causing personal injury, verbal notice from law

enforcement that a citation would be forthcoming, actions or

statements by a defendant evincing awareness of criminal

conduct, or a combination of these factors.   See Commonwealth v.

Gorman, 356 Mass. 355, 357-358 (1969) (sufficient notice where

defendant arrested for motor vehicle offense and given citation

later that day); Pappas, supra at 431-432 (motor vehicle

offenses including negligent motor vehicle homicide should not

have been dismissed where four and one-half hour delay between

time of accident and issuance of citation was caused almost

entirely by need to clear scene, investigate cause of accident,

and determine nature of the violations, and where "[i]t is

inconceivable that [a] defendant would be unaware of the

seriousness of a situation in which his vehicle had crossed the
                                                                  12


center line of a public street and struck a pedestrian"); Babb,

supra at 284 (dismissal of motor vehicle homicide inappropriate

and notice requirement satisfied where defendant struck a

pedestrian, was arrested on day of accident, and "immediately

was charged with drunk driving, driving so as to endanger, and

leaving the scene after causing personal injury and property

damage"); Provost, 12 Mass. App. Ct. 482-483 (twenty-seven day

delay in issuing citation justified by seriousness of possible

charges and officer's need to investigate accident in which

three people had died); Commonwealth v. Perry, 15 Mass. App. Ct.

281, 283 (1983) (automobile violations including motor vehicle

homicide should not have been dismissed in view of seriousness

of charges and one-day delay in issuing citation, which was

issued as soon as feasible); Barbuto, 22 Mass. App. Ct. at 943

(delay in issuing citation justified where defendant left scene

of serious accident after causing injuries to driver and

passenger in other vehicle and causing damage to both vehicles);

Commonwealth v. Kenney, 55 Mass. App. Ct. 514, 519-520 (2002)

(delay in issuing citation justified where notice was implicit

in light of "hit and run" accident in crosswalk where force of

impact "catapulted" pedestrian forty feet forward causing severe

injuries, and where defendant was aware of prospect of

prosecution as evidenced by her flight from scene, statements to

others concerning incident, and prompt engagement of counsel);
                                                                    13


Commonwealth v. Moulton, 56 Mass. App. Ct. 682, 684 (2002)

(delay in issuing citation justified where defendant had

implicit notice based on seriousness of two-vehicle accident and

officer informing defendant at hospital that he would be mailing

her citation for OUI).

       Looking at the peculiar facts of the instant case, no such

factors were present.    The incident at issue, although not a

mere fleeting traffic incident, was not so serious standing

alone to confer implicit notice on the defendant pursuant to the

third exception.    Here, there was a single-car accident

involving no other driver, passenger, or pedestrian.    The

defendant did not act in a manner that demonstrated he was aware

of the prospect of prosecution.    A search of the car uncovered

no alcohol or alcohol containers.    He was not placed under

arrest, informed that a citation for OUI may be delivered to

him, questioned regarding alcohol consumption, or informed that

an investigation regarding a potential OUI charge was

forthcoming.    Furthermore, we are unaware of any authority, and

the Commonwealth cites to none, which has held that a single-car

accident, standing alone, provides a defendant with sufficient

implied notice that satisfies the requirements of G. L. c. 90C,

§ 2.

       In sum, the defendant did not have prompt and definite

notice of the offense for which he was charged, and the
                                                                 14


substantial delay in issuing the citation was not justified

under any of the exceptions to the statutory requirements.

Accordingly, the judge's order allowing the defendant's motion

to dismiss the indictment is affirmed.

                                   So ordered.
