Opinion
No. 15–P–960.
10-07-2016
COMMONWEALTH v. Shane W. BROSSEAU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Shane W. Brosseau, was charged in the District Court with one count of operating a motor vehicle while under the influence of intoxicating liquor, one count of operating a motor vehicle under the influence of a controlled substance (collectively, OUI), and three civil motor vehicle infractions. He filed a motion to dismiss the complaint, claiming that the citation for the OUI charges was not issued in compliance with G.L.c. 90C, § 2. Following an evidentiary hearing, the judge allowed the motion. The sole issue on appeal is whether the failure to issue a citation to the defendant at the scene, or immediately thereafter at the hospital, violated the provisions of G.L.c. 90C, § 2, and warranted dismissal of the complaint. We reverse.
The record reflects that the police issued two citations, both dated November 10, 2013, the date of the incident. One cited the defendant for operating a motor vehicle while under the influence of intoxicating liquor and operating a motor vehicle while under the influence of a controlled substance. The other cited the defendant for speeding, marked lanes violation, and texting while driving.
Background. On November 10, 2013, at approximately 3:45 A.M ., the defendant was involved in a single-vehicle accident in the town of Middleton, in which he and a passenger sustained injuries. Officer Matthew Armitage of the Middleton police department responded to the scene and saw “an SUV off the road. It had struck a telephone pole, breaking the telephone pole, and there were sparks all around ... [and] heavy front end damage [to the SUV].” There was a crack in the windshield in front of the passenger seat. Officer Armitage spoke first with the passenger of the vehicle who had “cuts on his face,” was “bleeding from the forehead,” and stated that he “had struck his head on the windshield, actually causing the break.”
Officer Armitage next spoke to the defendant who “confirmed that he had been driving the vehicle.” He detected an odor of alcohol coming from the defendant's breath and noticed that the defendant was “unsteady on his feet.” The defendant admitted that he had been driving and texting, lost concentration, and crashed. The defendant initially denied drinking alcohol, but admitted to taking some medication earlier that evening. He subsequently admitted that he had consumed a “forty ounce bottle of beer.” According to the police report, which was entered in evidence as an exhibit at the request of defense counsel, the defendant also stated that “he felt the beer and medication had combined to have a significantly negative effect on his driving ability.” In response to a request to perform field sobriety tests, the defendant said that he “was sad and confused and ... didn't think he'd be able to do that.” He advised that he had neck pain and wanted medical assistance. The defendant did perform a horizontal gaze nystagmus (HGN) test, which, in the officer's opinion, he failed. During their conversation, Officer Armitage saw the defendant stumble and almost fall. The defendant and the passenger received medical treatment from emergency personnel and were transported to a hospital.
Defendant's appellate counsel was not counsel at the motion hearing.
Thereafter, Officer Armitage conducted an inventory of the vehicle, during which he noted “an empty package of cold medicine with seven tablets missing in the driver's side ... storage compartment on the door.” Officer Armitage determined at the scene that the defendant “was going to be charged with operating under the influence.” He did not arrest the defendant, issue any citation to him at the scene or at the hospital, and did not inform the defendant that criminal charges would be forthcoming. Instead, after returning to the Middleton police station, the officer wrote out the citation and attached it to a “[t]ow [i]nventory [s]heet,” which he placed in the “[t]ow [i]nventory [b]in.” Later that day, the defendant's father retrieved the vehicle from a towing company, and retrieved the citation from the Middleton police station.
Officer Armitage testified that he did not arrest the defendant because (1) “he was being transported to the hospital” and (2) as a small town, there were only two officers on duty and they would have been short-staffed.
Officer Armitage testified that per Middleton police department policy, “if we don't deliver the citation in-hand to the defendant, we either attach it to the tow sheet, so that when a responsible party takes—releases the vehicle, we can hand it to that person. Or, if that's not—we're not able to do that, we will send it out certified mail.”
The judge found that Officer Armitage was not in any way dilatory or slothful, and did his job “according to the protocols of the Middleton [p]olice.” However, the judge allowed the defendant's motion to dismiss, finding on the record that the defendant did not receive notice of the charges at the scene; the Middleton police department “policy” of attaching citations to a tow sheet does not satisfy the requirements of G.L.c. 90C, § 2 ; and the Commonwealth did not satisfy its burden of proving that any of the three exceptions to the statutory mandate to deliver citations to an alleged offender at the time and place of the violation. The judge entered a written margin order, which read as follows:
Toward the conclusion of the motion hearing, the judge stated: “perhaps the policy ought to be changed because someone had to drive down to the [police station] and [retrieve] the citation, so if [the defendant] wants to get a blood test, not that he necessarily would, but he should have had the opportunity to do so.”
“After hearing, the motion is ALLOWED. The defendant was not served with a citation as required by the statute[.] See c. 90C[,] § 2. Nor was he given notice of the charges on scene, according to the testimony of Officer Armitage. I am not satisfied that the Commonwealth satisfied any of the [three] exceptions to c. 90 § 2. There was no further investigation and no reason for police not to have served the defendant at the hospital.”
This appeal ensued.
Discussion. 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 supplied).
Thus, the statute mandates that citations be delivered to an alleged offender at the time and place of the violation, subject to three exceptions. Where, as here, the citation for OUI 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, 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).
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 asserts that this exception applies here because Officer Armitage “continued the investigation by a) photographing the crash scene, and b) conducting an inventory search of the vehicle.” We disagree. Contrary to this claim, the officer admitted that he determined at the scene that he would charge the defendant with OUI, and thus, the nature of the crime was already clear. Moreover, the delayed delivery of the citation did not involve the need for additional time to “determine the nature of the violation.” To the contrary, according to the officer's testimony, the delay stemmed from concerns regarding understaffing, and the Middleton police department's practice of attaching the citation to the tow sheet or sending it via certified mail. Accordingly, the Commonwealth failed to meet its burden of demonstrating that more time was reasonably necessary to determine the nature of the offense, within the meaning of G.L.c. 90C, § 2. We agree with the defendant that the second exception is inapplicable.
Asked if he had completed his investigation at the scene after the defendant was transported to the hospital, Officer Armitage testified, “I hadn't done the inventory of the vehicle yet, so I guess not.”
The third exception to the requirements of G.L.c. 90C, § 2, 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.” Chapter 90C, § 2. Within this exception, our case law has recognized that in certain circumstances, notice is implicit and the requirements of the statute are flexibly applied. See, e.g., Pappas, supra (notice requirement under statute “has little relevance when applied to more serious crimes”); Commonwealth v. Perry, 15 Mass.App.Ct. 281, 283–285 (1983) (flaws of detail can be overlooked as long as goals of statute not thwarted); Commonwealth v. Nadworny, 30 Mass.App.Ct. 912, 913 (1991), citing Pappas, supra at 431–432, and Commonwealth v. Babb, 389 Mass. 275, 283–284 (1983) (“[W]here an apparent vehicular violation causes injury that is seen to be serious, the violator is implicitly on notice that he or she is at risk of being charged”). In evaluating the potential application of the third exception, we also consider the objectives of the statute. At issue in the present case is the requirement to give prompt and definite notice to the alleged offender. See Babb, supra at 283. Thus, in the context of this case, the issue of implicit notice is central to our analysis of both the third exception and compliance with the statutory objective.
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 the officer “was [not] in any way dilatory or slothful. He did the job and did it according to the protocols of the Middleton [p]olice.”
The defendant contends that “[n]otice was not implicit” in this case because the accident involved one vehicle with nonlife threatening injuries; there was no arrest; no continuing investigation; and no advisement at the scene or thereafter that charges would be forthcoming. Compare Commonwealth v. Moulton, 56 Mass.App.Ct. 682 (2002) (following observations at scene of two-vehicle accident, officer notified defendant at hospital that citation for OUI would be issued). He further cites to the judge's finding that attaching citations to the tow sheet, as was done here, fails to satisfy the requirements of the statute. Finally, he cites to the judge's finding that there was “no reason for police not to have served the defendant at the hospital.”
We note the thorough effort by appellate counsel for both parties to catalogue, compare, and distinguish G.L.c. 90C, § 2, cases decided by Massachusetts appellate courts.
The cases justifying delayed delivery of a citation based on implicit notice typically involve 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, e.g., 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, 384 Mass. at 431–432 (distinguishing “normally fleeting and nonserious nature of most traffic infractions” from “more serious crimes,” where “[i]t is inconceivable that [a] defendant would be unaware of the seriousness of a situation in which his vehicle had crossed the center line of a public street and struck a pedestrian”); Babb, supra at 283–284 (dismissal of motor vehicle homicide complaints inappropriate and notice requirement satisfied where defendant struck 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”). However, our common law has recognized that accidents requiring hospitalization, in conjunction with other factors, may justify brief delays in issuing citations. See, e.g., Commonwealth v. Russo, 30 Mass.App.Ct. 923, 924 (1991) (delayed delivery or mailing of citation may be justified in view of injuries to accident victims and “sufficiently chaotic” accident scene); Moulton, supra at 685 (given seriousness of accident, defendant's removal from car via backboard, and hospitalization, it “should have been obvious to the defendant” that a citation was likely to follow).
The present case involved more than a transient traffic offense of a “fleeting and nonserious nature,” Pappas, supra, but did not involve “more serious crimes” or verbal notice that charges would be forthcoming. 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. However, looking at the “peculiar facts” of the instant case, several other factors, combined with the seriousness of the accident, sufficed to justify the application of the third exception.
First, the accident caused injury to a third party, the passenger, who was hospitalized after striking his head against the windshield with enough force to cause the windshield to crack. Second, in response to the officer's question, the defendant initially denied consuming alcohol, but then admitted to drinking beer, thus supporting an inference that he was conscious of the possibility of an OUI charge. Third, the officer asked the defendant to take field sobriety tests. He performed the HGN field sobriety test, but refused to perform additional field sobriety tests. Fourth, the defendant admitted to taking medication, and stated that “he felt the beer and medication had combined to have a significantly negative effect on his driving ability.” The officer's questions, the request to perform field sobriety tests, the defendant's initial denial and subsequent admission at the scene to drinking alcohol, the taking of a field sobriety test and refusal to perform additional field sobriety tests, and the admission to the effects of the alcohol and medication on his driving ability, viewed in conjunction with the accident and injuries to the passenger and the defendant, provided implicit notice to the defendant that charges could be forthcoming. Furthermore, the above-described facts reflect that the defendant acted in a manner that demonstrated that he was aware of the prospect of prosecution. Accordingly, we find that the Commonwealth sustained its burden of proving the applicability of the third exception to the requirements of G.L.c. 90C, § 2.
We note that the defendant's father picked up the citations on the day of the incident. Indeed, the defendant, in his affidavit, averred that on November 10 or 11, his father “left to retrieve the vehicle that had been towed the night of the incident. He returned with a citation that had been issued naming me as the violator.” See Perry, 15 Mass.App.Ct. at 282, 284 (police officer, who attempted to see defendant at hospital but was stopped by nurse, provided citation to defendant's father at police station day after incident).
The failure to provide the citation at the hospital did not warrant dismissal, as the particular facts of this case mandate the conclusion that the defendant had implicit notice that charges might be forthcoming, as detailed, supra. The order allowing the motion to dismiss the complaint is reversed.
The judge did not find that the defendant was deprived of his right to obtain an independent blood alcohol test at the hospital. See generally, G.L.c. 263, § 5A. Rather, he speculated that “if [the defendant] wants to get a blood test, not that he necessarily would, ... he should have had the opportunity to do so.” The record is silent as to whether the defendant did provide a blood sample at the hospital.
The judge's concern regarding the Middleton police department practice of attaching citations to a tow sheet is noteworthy. In other circumstances, such a practice may run afoul of G.L.c. 90C, § 2, and lead to the dismissal of cases.