The Massachusetts Appeals Court recently affirmed the trial court’s dismissal of an OUI/DUI indictment because of the Commonwealth’s violation of the “No-Fix Law”. In the case of Commonwealth v. Burnham, the appeals court upheld the trial court’s dismissal where the defendant did not receive prompt and definite notice of the OUI/DUI charge for which he was subsequently charged; and the delay in issuing the citation to him for the charge of Operating Under the Influence of Alcohol was not justified under any exception.
In this case, the police responded to a single car accident. The defendant, who was the driver, was initially unresponsive, but he later regained consciousness and taken to the hospital. At the scene, the police did not have any indication that the defendant was intoxicated. Discovering, however, that his license was suspended, he was cited for Operating After Suspension and for Marked Lanes Violation (a civil motor vehicle infraction).
Three months and in an unrelated incident, the defendant was arrested and charged with OUI/DUI in another town. The prosector, discovering that the defendant had been arrested again, conducted an independent investigation and obtained the defendant’s medical records from his treatment following the single-car accident. The medical records revealed that the defendant’s blood-alcohol level was 0.18%. With this information, the prosecutor instructed the police, now 3 months later, to issue a citation for Operating Under the Influence of Alcohol.
Following his indictment, the defendant successfully convinced the judge to dismiss the OUI charge because it failed to comply with the “no fix law” of c. 90C, sec. 2.
The “no fix law” mandates that citations must be delivered to an alleged offender at the time and place of the violation. The purpose of this is tonsure the prevention of manipulation and misuse of citations; and provide prompt and definite notice to the alleged violator of the nature of the offense(s). It is subject, however, the 3 exceptions:
- The violator could not have been stopped;
- 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 justifies the failure.
Where the citation was not delivered at the accident scene, the Commonwealth bears the burden of establishing that one of the exceptions applies. In this case, the prosecutor argued that the 2nd and 3rd exceptions applied.
The appeals court rejected the prosecutor’s argument that additional time was necessary to determine the nature of the violation because, at the time, where the police did not detect any indication of intoxication, the nature of the violation was unclear and additional time was reasonably necessary to investigate. Massachusetts courts have not adopted a “bright-line rule” that an investigation must be continuous or ongoing to justify the second exception. The ongoing nature of an investigation may be an important factor in justifying the delay of a citation, but neither the presence or absence of an on-going investigation is necessary.
In rejecting the second exception, the appeals court found it significant that the police did not have any indication that the defendant was intoxicated; they did not seek the hospital records that would have shown his blood-alcohol content; and the officers admitted that they have “concluded” their investigation on the day of the incident. Additionally, literally months had passed when the prosecutor, “on a hunch” triggered by the defendant’s unrelated arrest, initiated the further investigation. This information was available to the police and the prosecutor all along from day one. Therefore, the new arrest did not provide “previously unavailable information” and it was merely “coincidence” that instigated re-examining the circumstances and seeking out the medical information.
The appeals court also rejected the third requirement and agreed that no circumstances justified the failure to issue the citation. Traditionally, cases where the circumstances justified the failure to issue a citation have involved more serious charges, such as vehicular homicide; defendant was arrested on day of incident; defendant had left the scene, etc.
In this case, the appeals court found that the charges initially issued were “not so serious standing alone to confer implicit notice not he defendant pursuant to the third exception.” The defendant did not act in a way that demonstrated he was aware of the prospect of prosecution; a search of the car did not find any evidence of alcohol or containers; he was not placed under arrest; not questioned about alcohol consumption; nor informed that an investigation regarding a potential OUI/DUI might be imminent.
For these reasons, the appeals court agreed with the motion judge that the defendant did not have prompt and definite notice of the OUI charge, and the prosecutor failed to meet its burden in demonstrating that one of the exceptions applied.