Commonwealth v. Werra , 95 Mass. App. Ct. 610 ( 2019 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
18-P-666 Appeals Court
COMMONWEALTH vs. JANICE J. WERRA.
No. 18-P-666.
Plymouth. December 11, 2018. - July 17, 2019.
Present: Rubin, Milkey, & McDonough, JJ.
Motor Vehicle, Operating under the influence, Citation for
violation of motor vehicle law. Practice, Criminal,
Citation for violation of motor vehicle laws, Dismissal.
Notice.
Complaint received and sworn to in the Hingham Division of
the District Court Department on January 25, 2017.
A motion to dismiss was heard by Heather M.S. Bradley, J.,
and a motion to reconsider was heard by her.
David Cutshall, Assistant District Attorney, for the
Commonwealth.
Claudia Lagos for the defendant.
RUBIN, J. This case requires us to determine whether the
issuance of a citation for operating a motor vehicle under the
influence of intoxicating liquor (OUI-liquor), G. L. c. 90, § 24
(1) (a) (1), that was not issued contemporaneously with the
2
incident from which it arose, falls into the third exception of
the so-called "no-fix" statute, G. L. c. 90C, § 2.
The following uncontested facts are taken from the judge's
findings, supplemented by documentary evidence in the record.
On July 22, 2015, the defendant was stopped by Trooper Michael
Donahue of the State Police. The Commonwealth alleges on that
date at around 12:20 P.M., Trooper Donahue received a dispatch
to look out for a green Ford Explorer driving southbound on
Route 3 in Hingham. A civilian had called to report that the
Explorer was being driven erratically and that the driver seemed
to be nodding off at the wheel.
About five minutes later the trooper saw the Explorer
traveling in the breakdown lane. He pulled behind the vehicle
and activated his cruiser's emergency lights, but the driver,
subsequently identified as the defendant, did not stop. Instead
the Explorer continued to an exit ramp. The trooper drove up
alongside the Explorer. The defendant did not acknowledge the
trooper. Trooper Donahue then drove in front of the Explorer
and stopped his cruiser across the exit ramp. He got out of his
cruiser and signaled for the defendant to pull over. She seemed
disoriented and did not comply. Trooper Donahue walked up to
the defendant's vehicle and opened the door, ordering the
defendant to pull over. She seemed confused but eventually
3
pulled over after about two minutes and several requests by the
trooper.
The trooper asked the defendant for her license and
registration. She was slow to respond and looked through her
makeup case slowly even though her wallet was on the front seat.
When the trooper eventually asked her to identify herself, her
speech was slurred. The trooper asked her to spell her name, to
which she responded "Waaarrraa." She tried four additional
times but was unable to spell her name. He asked her if she was
on any medication, to which she responded, "Medication." He
asked her age, to which she responded, "Fifty-eight." He asked
for her date of birth five times, to which she responded
repeatedly, "Fifty-eight."
Eventually the defendant clarified that she had taken
methadone earlier that morning. Emergency medical services
arrived and took the defendant to a hospital. An inventory
search of the Explorer subsequently revealed a cup in the center
console containing a clear liquid with a strong odor of an
alcoholic beverage. That same day, Trooper Donahue wrote a
citation for operating a motor vehicle under the influence of
drugs (OUI-drugs), G. L. c. 90, § 24 (1) (a) (1), negligent
operation of a motor vehicle, G. L. c. 90, § 24 (2) (a), and
three civil infractions. The date of mailing or receipt of this
4
citation is not clear from the record but, for reasons that will
become clear infra, is not relevant to the issue before us.
One week after the date of the incident, Trooper Donahue
wrote a police report. In closing, the report stated, "It is
recommended that [the defendant's] medical records be requested
by the Plymouth County [district attorney]'s office prior to
trial. Case closed." On August 5, 2015, a complaint issued
charging the defendant with the offenses listed on the citation.
On October 21, 2015, the defendant was arraigned in the District
Court on the complaint. Only on March 16, 2016, over eight
months after the incident, did the Commonwealth file a motion
pursuant to Mass. R. Crim. P. 17, 378 Mass. 885 (1979), for a
summons of the defendant's hospital records, which was allowed.
The medical records were received in the court clerk's office on
May 16, 2016, and indicated that on the afternoon of the alleged
incident the defendant's blood alcohol content was .25 percent,
over three times the legal limit. See G. L. c. 90, § 24 (1) (a)
(1). The case was scheduled for trial on October 13, 2016.
Finally, on October 12, 2016, the very day before the
scheduled trial date, five months after the medical records were
received by the clerk's office, and almost sixteen months after
the incident, the State Police applied for a complaint against
the defendant for OUI-liquor, G. L. c. 90, § 24 (1) (a) (1).
The application included the same police report completed by
5
Trooper Donahue on July 29, 2015, along with five pages from the
defendant's medical records. The application also included a
new citation for OUI-liquor dated October 12, 2016. This
citation issued more than one year and three months after the
traffic incident occurred.
The next day, October 13, 2016, the trial date scheduled
for the OUI-drugs charge, the Commonwealth appeared in court.
The docket indicates that the Commonwealth was "unable to
proceed." There is no further explanation, nor have we been
provided with a transcript of the court session on that date.
On that same date the OUI-drugs charge was dismissed at the
request of the Commonwealth.
A new complaint alleging OUI-liquor, was issued on January
25, 2017. On July 14, 2017, after the defendant had been
arraigned on that complaint, the motion judge heard the
defendant's motion to dismiss the complaint pursuant to the no-
fix statute, G. L. c. 90C, § 2. That motion was allowed. The
Commonwealth now appeals.
Discussion. The so-called no-fix statute, G. L. c. 90C,
§ 2, was adopted in 1965. See St. 1965, c. 692, § 3. The
current version of § 2 provides:
"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
6
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."
The purpose of this statute, as the Supreme Judicial Court
has recently explained, was "to eliminate 'opportunity for
subsequent maneuvering or pressure'" that the prior system,
which included a three-day approval window, created.
Commonwealth v. O'Leary, 480 Mass. 67, 70 (2018), quoting 1965
Senate Doc. No. 839, at 2. "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., quoting Newton Police Ass'n v. Police Chief
of Newton, 63 Mass. App. Ct. 697, 699 (2005). Then-Governor
John A. Volpe stated, in a special message to the Legislature
proposing the no-fix traffic ticket bill, that this three-day
period created the "opportunity for subsequent maneuvering or
pressure." 1965 Senate Doc. No. 839, at 2. Presumably, this
ordinarily meant pressure for reasons other than legitimate law
enforcement to void the citation, that is, to "fix" the ticket,
or perhaps to provide a written warning rather than any other
7
disposition. The discretion placed in a higher ranking officer
might also have been used arbitrarily to proceed more harshly
than was warranted against a disfavored person who had been
cited. Under § 2 the discretion thus was removed, and the
decision to issue the citation was placed in the hands of the
officer on traffic duty.
The OUI-liquor citation at issue in this case was not given
to the "violator at the time and place of the violation." G. L.
c. 90C, § 2. Consequently, the defendant was entitled to
dismissal of the complaint unless the late issuance of the
citation fell within one of the three exceptions to the rule
that a failure to give a copy of the citation to the violator at
the time and place of the violation provides a defense in any
subsequent court proceeding on that violation.
The Commonwealth does not contend that this is a
circumstance in which the violator could not have been stopped
-- she was stopped, and indeed, given a citation, though for
OUI-drugs rather than OUI-liquor. If there is uncertainty as to
the cause of a driver's impairment, the second exception to the
no-fix statute gives the Commonwealth whatever time is
"reasonably necessary" to determine what precisely caused the
impairment. But the Commonwealth does not here contend that the
additional time was "reasonably necessary to determine the
nature of the violation or the identity of the violator," G. L.
8
c. 90C, § 2, presumably because, although there was an open
container of alcohol in the car, the police did not issue the
citation for OUI-liquor until the day before trial on the OUI-
drugs charge, some sixteen months after the incident, and some
five months after the Commonwealth obtained the defendant's
medical records, themselves only summonsed eight months after
the incident that led to the initial citation. The Commonwealth
argues only that this falls within the third exception, for
cases "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. It is to that exception that we now turn.
The third exception. As originally enacted, the third
exception applied in cases "where the court finds that 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." St. 1965,
c. 692, § 3. In 1982, G. L. c. 90C was struck and rewritten,
and the exception was changed to cover cases "where the court
finds that a circumstance, not inconsistent with the purpose of
this section to create a uniform and simplified method for
disposing of violations of automobile law, justifies the
failure." St. 1982, c. 586, § 2. Sections 2 through 4 of G. L.
9
c. 90C were once again struck and rewritten in 1985, which added
that the purpose of the section was to create a "uniform,
simplified and non-criminal method for disposing of automobile
law violations" (emphasis added). St. 1985, c. 794, § 3. This
is how the statute reads today. Consistent with the legislative
purpose to stop manipulation and misuse of the citation process,
in a criminal case like this, the relevant language, as
initially enacted and as amended, focuses on uniformity.
In this case the circumstance alleged to have caused the
failure to issue the citation has nothing to do with fixing
tickets, and it appears to have nothing to do with manipulation
of the use of traffic citations to charge the defendant, or to
charge her more harshly, after an initial determination by the
trooper was made not to do so. The trooper himself issued a
criminal citation for operating under the influence, albeit with
respect to a different substance, so the statutory punishment
was precisely the same under both citations. The evidence at
the scene supported the issuance of that citation. The trooper
was unaware of the defendant's blood alcohol level at the time
he issued the original citation, and the original charge was
consistent with the defendant's own statement that she had taken
methadone prior to driving the vehicle.
In any criminal case not involving an automobile, the
defendant would be subject to being charged so long as the
10
statute of limitations had not run, and would have available to
her all defenses other than that in the no-fix statute. In
these circumstances, the terms articulated in the plain language
of the third exception would appear to be met.
The case law, however, has added a gloss to the statute.
Early on, our courts concluded that there were actually two
subsidiary purposes within the "declared" purpose of the statute
as it was originally written, that is, "to cause violators of
automobile law to be brought uniformly to justice." St. 1965,
c. 692, § 3. They are not only to prevent manipulation and
misuse of traffic citations, but also "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 statute . . . is designed to prevent a situation
in which a person cannot establish a defence due to his being
charged with a violation long after it occurs." Id., quoting
Commonwealth v. Gorman, 356 Mass. 355, 357-358 (1969).
This gloss has been carried over without discussion under
the twice-amended language of the third exception so that
failure to provide a citation at the time and place of the
incident has been held not fatal to a subsequent prosecution
because of this exception only where the reason for delay is
consistent with these two subsidiary purposes. See, e.g.,
Commonwealth v. Perry, 15 Mass. App. Ct. 281, 282 (1983). Thus,
11
where the purpose of G. L. c. 90C, § 2, to afford prompt and
definite notice of the nature of the alleged offense to the
putative violator has not been met, the failure to provide a
citation at the time and place of the incident cannot be
excused. Cf. Commonwealth v. Cameron, 416 Mass. 314, 317-318
(1993). Indeed, in a relatively recent decision applying the
third exception, we concluded that even late-discovered evidence
of OUI-liquor could not justify a new citation for someone cited
at the scene with driving with a suspended license because "the
defendant did not have prompt and definite notice of the offense
for which he was charged." Commonwealth v. Burnham, 90 Mass.
App. Ct. 483, 490 (2016).
The statute by its terms requires no showing of prejudice
and, even though the purpose of providing notice might be viewed
as a judicial gloss on the statutory language, our courts have
concluded that the defendant need not show any actual prejudice
from the delay. See Perry, 15 Mass. App. Ct. at 283. Indeed,
the Supreme Judicial Court just last year reiterated that
"[w]here the requirements of the statute are not followed, the
complaint shall be dismissed regardless of whether the defendant
was prejudiced by the failure." O'Leary, 480 Mass. at 70,
quoting Commonwealth v. Carapellucci, 429 Mass. 579, 581 (1999).
We are therefore constrained to conclude that because of
the absence of "prompt and definite notice of the nature of the
12
alleged offense" the order dismissing the complaint must be
affirmed. The Commonwealth's argument to the contrary is that
the defendant was charged with an impairment offense and had
sufficient notice of that fact through the initial citation.
But, as described above, the Supreme Judicial Court has
explained that the requirement of prompt and definite notice "is
designed to prevent a situation in which a person cannot
establish a defence due to his being charged with a violation
long after it occurs." Pappas, 384 Mass. at 431, quoting
Gorman, 356 Mass. at 357-358. Although OUI-drugs and OUI-liquor
require the Commonwealth to prove certain common elements, they
also require the Commonwealth to prove different ones, and the
evidence and defenses with respect to one charge are not always
applicable to the other. See Commonwealth v. Gerhardt, 477
Mass. 775, 783-784, 786 (2017) (because "[t]he scientific
community has not reached a consensus whether a defendant's
performance on [field sobriety tests] is correlated with
marijuana use or impairment," they may not be referred to in
OUI-marijuana case as "tests," nor may officer opine that
defendant "failed" one; unlike alcohol intoxication, because
"there is no scientific consensus on what, if any, physical
characteristics indicate marijuana intoxication, no lay opinion
can be admissible as common knowledge or understanding on that
subject"). Although the defendant asserts that the
13
"unreasonable delay in the issuance of the proper citation in
this case certainly created a situation where [she] could not
establish a defense to OUI-[l]iquor," she has not described any
way in which she was prejudiced by the delay, but, as described
above, under the law we are required to apply, that failure is
immaterial. Consequently the order dismissing the OUI-liquor
complaint must be affirmed.
So ordered.