Commonwealth v. O'Leary

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16-P-557 Appeals Court

COMMONWEALTH vs. RICHARD O'LEARY.

No. 16-P-557.

Norfolk. August 16, 2017. - September 22, 2017.

Present: Green, Vuono, Meade, Agnes, & Desmond, JJ.1

Motor Vehicle, Citation for violation of motor vehicle law,
Operating under the influence. 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.

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

1
This case was initially heard by a panel comprised of
Justices Green, Agnes, and Desmond. After circulation of the
opinion to other justices of the Appeals Court, the panel was
expanded to include Justices Vuono and Meade. Following
expansion of the panel, the court ordered a rehearing of the
case before the expanded panel. See Sciaba Constr. Corp. v.
Boston, 35 Mass. App. Ct. 181, 181 n.2 (1993).
2

GREEN, J. We are called upon again to consider the

circumstances in which the failure to issue a citation at the

scene of a motor vehicle infraction does not compel the

dismissal of resulting criminal charges. The Commonwealth

appeals from an order of the Superior Court, dismissing a

multiple-count indictment against the defendant on the ground

that the police failed to make a timely delivery of the citation

pursuant to G. L. c. 90C, § 2.2 For the reasons that follow, we

reverse.

Background. We summarize the judge's findings of fact,

which we accept absent clear error. On the night of April 19,

2014, the defendant was involved in a motor vehicle accident on

Route 3 in Braintree. The Jeep Cherokee he was driving left the

highway, hit an exit sign, and rolled over five times.

State police Trooper Jared Gray responded to the accident

scene. The defendant and a woman, Patricia Murphy, were covered

in blood and broken glass. Gray observed the defendant and

Murphy being treated by emergency personnel; both eventually

were taken to South Shore Hospital by ambulance for treatment.

Trooper Gray spoke to both the defendant and Murphy briefly

2
The defendant was charged with various motor vehicle
offenses, including (1) operating a motor vehicle while under
the influence of alcohol (OUI), G. L. c. 90, § 24L(1); (2) OUI,
subsequent offense, G. L. c. 90, § 24(1)(a)(1); (3) negligent
operation of a motor vehicle, G. L. c. 90, § 24(2)(a); and (4)
several charges involving operating with a suspended or revoked
license in violation of G. L. c. 90, § 23.
3

before they were taken to the hospital; at that time, each

claimed to have been a passenger in the vehicle.

From his observations at the scene, Trooper Gray believed

the parties had suffered serious injuries.3 He followed the

ambulances to the hospital. When he arrived at the emergency

room, he left his citation book in his patrol vehicle. He spoke

first with Murphy. She appeared to be intoxicated, but seemed

to understand his questions. As she had done at the accident

scene, she told Gray that she had been a passenger in the

vehicle. Gray next spoke with the defendant. Gray noticed that

his eyes were glassy and his speech was slurred. He also

noticed the odor of alcohol coming from the defendant. The

defendant told Gray he had had "a couple of beers." The

defendant initially repeated his earlier statement that he had

been a passenger in the vehicle, but then admitted to having

been the driver. At the time of the accident, the defendant was

on probation for operating under the influence of alcohol,

subsequent offense. His license was suspended and he was not

legally permitted to drive. Gray gave Miranda warnings to the

defendant, after which the defendant repeated that he had been

the driver. Gray told the defendant he would be receiving "a

criminal summons in the mail." Gray's intent was to complete

3
There are no medical records pertaining to the injuries
suffered by the defendant or Murphy in the record before us.
However, Murphy testified that she suffered several broken ribs.
4

his investigation, file his report with his supervisor, and then

send a citation to the defendant. After filing his report with

his supervisor, Gray waited nine days for the report to be

approved. Once it was approved on April 28, 2014, it was mailed

to an address on file with the State police. Due to an

incorrect zip code, however, it was another five or six weeks

before the defendant received the citation in the mail.

The judge credited Murphy's testimony that she believed

that this was "merely a car accident and that there would be no

charges arising from it," even though she had suffered serious

physical injuries.4 However, the judge also found that, for

several weeks after the accident, Murphy and the defendant

waited for something in the mail "or for some sort of contact"

from the State police regarding what had happened. After the

accident and before he received the citation, the defendant did

not hire an attorney or take any steps to defend a criminal

case.

Discussion. General Laws c. 90C, § 2, provides in

pertinent part that:

"A failure to give a copy of the citation [for an
automobile laws violation] 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

4
In addition to breaking several ribs, Murphy lost
consciousness at one point and appeared to be in shock; she
testified that she feared she would die. Upon her arrival at
the hospital, Murphy was put in the trauma unit.
5

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 and the citation shall be
delivered to the violator or mailed to him at his
residential or mail address or to the address appearing on
his license or registration."

Though the statute is applied strictly in those

circumstances to which it is applicable, see Commonwealth v.

Carapellucci, 429 Mass. 579, 581 (1999), it is subject to

certain explicit statutory exceptions, as construed through a

line of decisional law.

The statute includes three explicit exceptions.5 "By its

terms, § 2 excuses the need to deliver a copy of the citation at

the time and place of the violation in three circumstances: (1)

when 'the violator could not have been stopped'; (2) when

'additional time was reasonably necessary to determine the

nature of the violation or the identity of the violator'; and

(3) 'where the court finds that a circumstance, not inconsistent

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

5
In addition to the explicit exceptions set forth in the
statute itself, our cases have added an exception for cases in
which an arrest occurs. See Commonwealth v. Kenney, 55 Mass.
App. Ct. 514, 519 n.4 (2002), quoting from Commonwealth v.
Gorman, 356 Mass. 355, 358 (1969) ("Nothing in the statute . . .
suggests that such additional notice as is provided by a
citation is necessary when an arrest occurs").
6

failure.'" Commonwealth v. Correia, 83 Mass. App. Ct. 780, 783-

784 (2013). It is the Commonwealth's burden to establish that a

statutory exception applies. See Commonwealth v. Mullins, 367

Mass. 733, 734-735 (1975).

The purpose of the statute, sometimes referred to as the

"no-fix" law, see Commonwealth v. Cameron, 416 Mass. 314, 316

(1993), is to prevent the "manipulation and misuse" of traffic

citations, and "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

susceptibility of 'traffic tickets' to unequal and arbitrary

disposition at the hands of traffic officers, and the

requirement of prompt notice to the offender, reflect the

normally fleeting and nonserious nature of most traffic

infractions. . . . The risk that a putative defendant will

remain unaware of a transient traffic offense and will be

unprepared to defend against it unless the incident is 'called

immediately to [his] attention' has little relevance when

applied to more serious crimes." Ibid. (citations omitted).

Moreover, in cases involving an offense (such as the charge in

the present case of operating with a suspended license) in which

"knowledge of the wrongful character of the act is an essential

element of the offense. . . . [A] requirement of notice to

alert an offender that an offense had been committed seems as
7

superfluous as the necessity of issuing a citation after an

arrest for a motor vehicle violation." Commonwealth v.

Giannino, 371 Mass. 700, 704 (1977). See Commonwealth v. Babb,

389 Mass. 275, 284 (1983).

We agree with the Commonwealth that the present case fits

within the third statutory exception, as illustrated by the

similar cases of Commonwealth v. Kenney, 55 Mass. App. Ct. 514

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

(2002). In both cases, we concluded that criminal charges need

not be dismissed in circumstances where the violation resulted

in serious injuries and the purposes of the statute otherwise

were met. In Commonwealth v. Moulton, the police officer

advised the defendant orally while in the hospital that she

would be criminally charged. As in Moulton, the serious nature

of the accident and injuries in the present case, causing an

"ineradicable record of the event," Commonwealth v. Kenney,

supra at 520, coupled with the officer's oral notice to the

defendant in the hospital that he would be charged, sufficed to

put the defendant on notice that criminal charges would follow

and met the purposes of the statute.6 In Commonwealth v. Kenney,

6
We note that the Superior Court judge discounted the
effect of Trooper Gray's oral notice to the defendant, observing
that at the time Trooper Gray informed the defendant that he
would be receiving a summons in the mail, the defendant was
boarded and immobilized while he received treatment for his
injuries at the hospital, and consequently "[t]his court is not
8

supra, we affirmed the denial of a defendant's motion to

dismiss, even though no citation ever issued, based on the

serious nature of the accident and the defendant's awareness

that criminal charges would follow.

We recognize that the delay in issuance of a citation in

the present case was nine days, rather than one, as in Moulton,

and that there does not appear to have been any strong reason

for the delay.7,8 However, the case otherwise is entirely in

line with the circumstances of Moulton, in which "there was no

satisfied that the defendant was put on notice through the
statement of Trooper Gray that the defendant would receive a
summons." We consider that conclusion to be inconsistent with
the recognition appearing in our cases that serious injuries
resulting from a motor vehicle accident resulting from operation
of a motor vehicle while under the influence of alcohol alone
may suffice to constitute "implicit" notice. See Commonwealth
v. Moulton, 56 Mass. App. Ct. 682, 685 (2000); Commonwealth v.
Babb, 389 Mass. 275, 283 (1983). See also Commonwealth v.
Cameron, 416 Mass. 314, 316 (1993). We note as well that the
defendant's circumstances while at the hospital posed obvious
practical impediments to in-hand delivery of a written citation
to him while he was strapped to a backboard and receiving
treatment. See, e.g., Commonwealth v. Perry, 15 Mass. App. Ct.
281, 283 (1983).
7
We consider the additional delay caused by the use of an
incorrect zip code in mailing the citation to be relatively
inconsequential in the circumstances of this case. The "no-fix"
purpose of the statute was served by the recording and issuance
of the citation itself; the subsequent delay factors only into
an assessment of possible prejudice to the defendant who, as
previously observed, is considered under our cases to have been
aware of the seriousness of the incident and the concomitant
likelihood that criminal consequences would follow.
8
We do not condone Trooper Gray's election to await review
and "approval" of his report by his supervisor before issuing a
citation.
9

manipulation or misuse of the citation, and [Trooper Gray]

notified the defendant as soon as he had completed his interview

of [him] at the hospital that a citation would be issued." 56

Mass. App. Ct. at 685.

The order dismissing the indictment is reversed, and the

indictment is reinstated.

So ordered.
AGNES, J. (dissenting, with whom Desmond, J., joins). The

question before us is whether the Commonwealth met its burden of

proving compliance with G. L. c. 90C, § 2, despite the fact that

Trooper Gray did not give the defendant a citation at the scene

of the violation, at the hospital following the interviews he

conducted, or as soon as possible thereafter. In fact, it took

more than six weeks after the date of the violation for the

defendant to receive a citation.

The Commonwealth relies exclusively on a specific exception

in § 2 which excuses the duty to deliver 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." In concluding that the Commonwealth met its burden to

establish that this exception applies, the majority, in my view,

disregards the judge's findings of fact, disregards other

language in the statute that requires the citation to be written

"as soon as possible" after the violation, and fails to stay

within the bounds of prior decisions. Accordingly, I

respectfully dissent.

1. The defendant did not "receive" oral notice that he

would be charged criminally. The judge conducted an evidentiary

hearing and made findings of fact and rulings of law. In such
2

cases, we accept the judge's subsidiary findings of fact unless

they are clearly erroneous. We give substantial deference to

the judge's ultimate findings and rulings. See, e.g.,

Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 50 (2014). In one

important respect, the majority opinion veers off course from

this standard of review. In an effort to bring this case closer

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

majority relies on testimony by Trooper Gray that, while at the

hospital, he informed the defendant that he would be receiving

"a criminal summons in the mail." Ante at . Although

the judge, as the finder of fact, credited this testimony, she

added an important qualification that undermines the majority's

reliance on it:

"Trooper Gray testified credibly that the defendant and
passenger appeared to be intoxicated and seriously injured.
This court credits his testimony that he informed the
defendant that he would receive a summons. However, at the
time the trooper told the defendant this information, the
defendant was boarded and immobilized while he received
treatment for his injuries at the hospital. This court is
not satisfied that the defendant was put on notice through
the statement of [T]rooper Gray that the defendant would
receive a summons."

This is a statement by the finder of fact about the weight

of testimonial evidence. It is settled law that the weight of

the evidence is a matter for the fact finder, not a question of

law that we have authority to review de novo on appeal. See

Commonwealth v. Murphy, 362 Mass. 542, 550 (1972) (Hennessey,
3

J., concurring).1 Thus, while it is accurate to say that Trooper

Gray made a statement in the defendant's presence that he would

receive a criminal summons in the mail, it is not accurate to

say that the defendant received oral notice that criminal

charges would be sought, i.e., it is not accurate to say that

the defendant understood that criminal charges would be sought.

Contrast Commonwealth v. Moulton, supra at 683 (after

interviewing defendant at hospital following motor vehicle

accident, police officer stated "he would be mailing her a

citation for 'operating under the influence of alcohol and a

couple of other charges;'" no indication that defendant did not

understand such notice).

2. Section 2 does not excuse a delay in the issuance of a

citation for reasons of administrative convenience. Let us

assume that the Commonwealth met its burden of proving that, due

to the serious nature of the accident and the injuries suffered

by the defendant and his passenger, Patricia Murphy, "a

1
In only very limited circumstances not applicable here,
the Supreme Judicial Court and trial judges may exercise
discretion to consider the weight of the evidence. See G. L.
c. 278, § 33E (special responsibility assigned to Supreme
Judicial Court in capital cases); Mass.R.Crim.P. 25(b)(2), 378
Mass. 896 (1979) (authority limited to trial judge in criminal
cases after discharge of jury); Mass.R.Crim.P.30, as appearing
in 435 Mass. 1501 (2001) (authority limited to trial judge to
exercise discretion to allow motion for new trial in criminal
cases); Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974) (authority
limited to trial judge to exercise discretion to allow motion
for new trial in civil cases).
4

circumstance, not inconsistent with the purpose" of § 2

"justifies the failure" to issue a citation at the time and

place of the violation. Section 2 nevertheless imposes a

separate and distinct requirement that, in such a circumstance,

a citation must be issued "as soon as possible after the

violation." Even if it was reasonable for Trooper Gray to

return home without having written a citation after conducting

the hospital interviews of the defendant and Murphy, no

justification is offered for the ensuing nine-day delay.

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

(off-duty trooper who did not have his citation book with him

complied with § 2 by orally informing defendant that he would be

charged with criminal violations, followed by delivery of

citation at end of trooper's next shift); Commonwealth v. Russo,

30 Mass. App. Ct. 923 (1991) (police complied with § 2 by giving

defendant oral notice at hospital that he would be charged

criminally and by leaving copy of citation with his clothes on

hospital gurney).

Here, the majority concedes, as it must, that there was "no

strong reason for the delay" in issuing a citation to the

defendant. Ante at . It is more accurate to say, I
5

submit, there was no valid reason for the delay.2 Indeed, the

motion judge found that the delay was "inexplicabl[e]."

There is nothing in G. L. c. 90, § 2, or our precedents

that authorizes a delay in the issuance of citation for the

administrative convenience of the police. See, e.g.,

Commonwealth v. Roviaro, 32 Mass. App. Ct. 956 (1992).3 We now

have a new rule anchored by the majority in the statute, but

nowhere to be found in the text of the statute. Whenever there

is a "serious" motor vehicle accident in which there are

"injuries," the majority holds that the investigating officer

may delay the decision to issue a citation for some

indeterminate period of time even though the violator did not

flee, his identity is known, and no additional time is required

to determine the nature of the charges. If a nine-day delay is

acceptable, what about a twelve-day, twenty-day, or thirty-day

2
In her thorough memorandum of decision, the judge wrote
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
South Shore Hospital. There was no indication at the
evidentiary hearing that further investigation was done and it
does not appear that additional time was necessary to determine
the nature of the violation or the identity of the violator."
3
In addition, contrary to the Commonwealth's claim, the
remainder of the delay (five or six weeks) also is attributable
to the Commonwealth. Trooper Gray testified that the zip code
used when the citation was mailed to the defendant on April 28,
which resulted in its going to Quincy instead of to the
defendant's address in Braintree, was obtained from State police
records.
6

delay? It would not surprise me if able and conscientious

judges applying this standard reach different results in similar

cases, which is contrary to the statute's explicit goal of

establishing a "uniform" system.

Apart from the goal of ensuring that a violator receives

timely notice that he will be charged criminally, § 2 is

designed to prevent the corrupt manipulation of the citation

process. If a violator is arrested, an ineradicable record is

made of the charges, and any attempt to manipulate or corrupt

the process will likely come to light. But the new rule

established by the majority leaves open the potential for

corruption before any record is made of what charges, if any,

will be sought. Every day that a police officer delays the

issuance of a citation without justification is a day during

which someone may attempt to improperly influence the decision

whether charges will be brought or the nature of those charges.4

4
This is why the Legislature dispensed with any requirement
that the defendant demonstrate prejudice when there is a failure
to comply with § 2. In Newton Police Assn. v. Police Chief of
Newton, 63 Mass. App. Ct. 697, 699-700 (2005), we explained the
history of the statute:

"Chapter 90C was inserted in the General Laws by St.
1962, c. 789, § 2. Section 2 of c. 90C continued the
earlier practice (under G. L. c. 90, § 27, as appearing in
St. 1961, c. 592) that the 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 receipt of the citation, the police chief or a
designated officer of at least sergeant grade would decide
7

By overlooking the nine-day delay that occurred in this case

while Trooper Gray's report was reviewed by a superior officer,

the majority has created a slippery slope in place of the

statute's objective standard.

Furthermore, the majority's reasoning that an unjustified

nine-day delay is inconsequential runs afoul of the settled

principle that a statute must be construed "so that effect is

given to all its provisions, so that no part will be inoperative

or superfluous." Bankers Life & Cas. Co. v. Commissioner of

Ins., 427 Mass. 136, 140 (1998), quoting 2A B. Singer,

Sutherland Statutory Construction § 46.06 (5th ed. 1992). See

whether to proceed by way of a written warning, a court
complaint,[footnote omitted] reference to the Registry of
Motor Vehicles, or voiding the citation. In 1965,
concerned by the 'opportunity for subsequent maneuvering or
pressure' afforded by the three-day period, then-Governor
John A. Volpe, by special message to the Legislature,
proposed a 'no-fix' traffic ticket bill. 1965 Senate Doc.
No. 839. The object of the bill was to require, as a
general rule, that the decision to issue a citation (in
effect an application for a District Court complaint) be
made by the police officer at the time and place of the
violation. The crux of the Governor's draft legislation lay
in this sentence: 'A failure to give the original of the
citation to the offender at the time and place of the
violation shall constitute a bar to prosecution for such
offense, except where the violator could not have been
stopped, or where 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.' 1965 Senate Doc. No. 839,
Appendix A. That sentence, as slightly amended in
committee, remains the crux of G. L. c. 90C, § 2, in its
present form."
8

Commonwealth v. McCaughey, 9 Gray 296, 297 (1857) (this is "an

anciently established rule"). By focusing solely on whether the

defendant should have been on notice that criminal charges were

likely to follow, the majority disregards the statute's goal of

eliminating corrupt manipulation of citations and renders

superfluous the statute's separate requirement that the citation

must be issued "as soon as possible."5

3. The majority opinion is inconsistent with judicial

precedents. The majority relies principally on two prior cases,

Commonwealth v. Kenney, 55 Mass. App. Ct. 514 (2002), and

5
In statutory interpretation, "[n]one of the words of a
statute is to be regarded as superfluous." Commonwealth v.
Woods Hole, Martha's Vineyard & Nantucket S.S. Authy., 352 Mass.
617, 618 (1967), quoting from Bolster v. Commissioner of Corps.
& Taxation, 319 Mass. 81, 84–85 (1946). A court is not
authorized to create an exception to the plain language of a
statute to ameliorate what appears to be a harsh result. See
Ocean Spray Cranberries, Inc. v. State Tax Commn., 355 Mass.
592, 597 (1969). The Legislature revised G. L. c. 90, § 2, to
address one such harsh result. In Commonwealth v. Marchand, 18
Mass. App. Ct. 932 (1984), the vehicle operated by the defendant
struck another vehicle in an intersection. The investigating
police officer examined the scene, and on the following day,
after learning that the operator of the other vehicle had died,
delivered a citation to the defendant for operating to endanger.
Approximately forty-one days later, the police officer issued a
second citation to the defendant for vehicular homicide. The
record indicated that delay was not justified by the need to
conduct an additional investigation. This court upheld the
judge's dismissal of the homicide charge. Ibid. Two years
later the Legislature revised the statute and effectively
overruled Marchand. See St. 1986, c. 620, § 19 (amending § 2
and making the requirement of a citation inapplicable in cases
in which the violation results in one or more deaths). See
Commonwealth v. Nadworny, 30 Mass. App. Ct. 912, 914 (1991).
9

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

readily distinguishable. In Moulton, at approximately 10:45

P.M. on the night in question, the defendant crashed her vehicle

into a wall. The investigating officer made observations of the

scene and was able to interview the defendant before she was

taken by ambulance to the hospital. There, the investigating

officer advised her of her Miranda rights, conducted a further

interview, and concluded that she should be charged criminally.

The officer informed her that he needed to check some things,

but that she would receive a citation for "operating under the

influence of alcohol and a couple of other charges" in the mail.

Id. at 683. The officer returned to the police station. After

reviewing an ordinance and conferring with his sergeant, he

wrote a report, prepared the citation, and mailed it to the

defendant. There was no question about whether the defendant

received oral notice at the hospital that she would be charged

criminally. In addition, the officer mailed the citation to the

defendant only hours after giving her oral notice that criminal

charges would be sought.

Similarly, in Commonwealth v. Kenney, supra, the defendant

was operating a vehicle that struck a pedestrian in a crosswalk,

causing the victim to be launched into the air, landing forty-

three feet forward of the point of impact. 55 Mass. App. Ct. at

515. "She suffered skull fractures, a broken neck and leg, and
10

a fractured pelvis. As a result of the injuries, she succumbed

to a stroke, and was rendered unable to talk or walk." Id. at

515-516. The day following the accident, the police received an

anonymous telephone call identifying the defendant as the

driver. Two days later, an attorney brought the defendant to

the police, but there was no admission of fault. It took one

month for the police to obtain statements from witnesses and

physical evidence that indicated the defendant had operated the

vehicle that struck the victim and was under the influence of

alcohol at the time. Id. at 516-517. However, citations were

not served on the defendant. Instead, four months later, the

case was presented to a grand jury, which returned indictments

against the defendant. Id. at 517.

In rejecting the defendant's argument that G. L. c. 90C,

§ 2, required that the charges be dismissed, this court reasoned

that several factors provided assurances that both the no-fix

and notice objectives of the statute were not compromised.

First, there was evidence that, shortly after the accident, the

defendant made admissions to third parties that she believed she

had hit someone. Second, the defendant withdrew $31,000 from

her bank account, which was regarded as evidence that she feared

the consequences of her actions. Third, this court noted that

the defendant's "prompt engagement of counsel also reflects

notice and the ability to begin to marshal a defense -- indeed,
11

defense counsel began such an undertaking two days after the

incident." 55 Mass. App. Ct. at 520. In the present case, by

contrast, the judge found that the defendant did not hire an

attorney or take any steps to prepare to defend a criminal case

promptly after the accident. The judge found that Murphy, who

had been living with the defendant for several years at the time

of these events, believed that this was "merely a car accident

and that there would be no charges arising from it," even though

Murphy had sustained serious injuries as a result of the

accident. The judge also found that for several weeks after the

crash, Murphy and the defendant waited for something in the mail

"or for some sort of contact" from the State police regarding

what had happened.6

6
In a case following the seminal decisions in Commonwealth
v. Pappas, 384 Mass. 428 (1981), and Commonwealth v. Babb, 389
Mass. 275 (1983), the Supreme Judicial Court described the type
of injury that would give rise to the presumption of notice in
the absence of a citation being issued as "life-threatening."
In Commonwealth v. Cameron, 416 Mass. 314 (1993), the vehicle
operated by the defendant struck and seriously injured a boy on
a bicycle. The defendant was identified as the operator at the
scene. The police officer completed his investigation the
following day and concluded that the defendant had been speeding
and had crossed the solid double yellow line before striking the
boy. Two days then passed without a citation being issued. On
the fourth day following the accident, the officer informed the
defendant that he would be cited for operating to endanger and
other charges, and the citation issued that day. A divided
panel of this court affirmed the lower court's decision
dismissing the charges. Commonwealth v. Cameron, 34 Mass. App.
Ct. 44 (1993). On further appellate review, the Supreme
Judicial Court reached a different result and ordered the
charges reinstated. The court stated that, "[b]ecause there was
12

The majority's new standard cannot be squared with prior

precedents. For example, in Commonwealth v. Mullins, 367 Mass.

733, 735 (1975), criminal charges were dismissed because the

citation was mailed to the defendant nineteen days after the

violation. The court noted that the defendant was stopped and

identified by a police officer at the scene of the accident, and

attributed the delay to an "unexplained mistake." Id. at 736.

In Commonwealth v. Burnham, 90 Mass. App. Ct. 483 (2016), we

upheld a judge's decision to dismiss an indictment for operating

under the influence of intoxicating liquor (OUI) in

circumstances in which a citation was not issued to the

defendant until four and one-half months after the police

concluded their investigation. The defendant was the operator

and sole occupant of his vehicle, which was involved in a

serious, single-vehicle accident. The defendant was injured and

unresponsive when taken from the scene by ambulance to the

hospital. The police did not detect any signs of alcohol

intoxication from their observations of the defendant at the

an obvious, life-threatening injury in this case and no purpose
of § 2 is being thwarted, and because the police were not
seriously deficient or negligent in their handling of the
matter, we conclude that there was justification for excusing
the three-day delay in issuing the citation." 416 Mass. at 317-
318 (emphasis added). In the present case, by contrast, there
was no effective oral notice to the defendant, no evidence that
either the defendant or Murphy suffered life-threatening
injuries, and a delay in receipt of the citation that extended
to several weeks.
13

scene, and they did not go to the hospital. The defendant was

promptly cited for operating with a suspended license and for a

marked lanes violation. In dismissing the subsequent OUI

charge, the judge concluded that the delay was not excused under

any of the exceptions set forth in § 2, and that the defendant

was not put on sufficient notice that an OUI charge might follow

based on the other criminal charge and the nature of the

injuries he suffered. See Commonwealth v. Riley, 41 Mass. App.

Ct. 234 (1996). See also Commonwealth v. Carapellucci, 429

Mass. 579, 581 (1999) (noting that when there is violation of

§ 2, criminal charges must be dismissed "regardless of whether

the defendant was prejudiced by the failure").

For these reasons, I believe we are no less constrained

than the judge below to follow § 2 in this case with the result

that the order dismissing the criminal charges should be

affirmed.7

7
Issues like the one we address in this case about the
proper interpretation and application of G. L. c. 90C, § 2,
arise frequently in the trial court and regularly at the
appellate level. The principal objective of the law was to
"close loopholes" which allowed undue pressure to be brought on
police officers assigned to traffic enforcement to dissuade them
from enforcing traffic violations. See 1965 Senate Document No.
839. In recent years, the seriousness of the criminal law
violations that are subject to the requirement of a citation
under § 2 has grown, resulting in more complaints and
indictments in the District and Superior Courts.
Simultaneously, the application of the statute has been narrowed
by an amendment excluding from its scope cases in which a
motorist causes a death. By case law, the statute does not
14

apply to violators who are arrested. The time may have come for
the Legislature to again review the parameters of the citation
requirement in certain categories of criminal cases arising from
the use of automobiles.