The Massachusetts Supreme Judicial Court affirmed the dismissal of an OUI charge by a Superior Court judge after the officer did not issue a citation until 9 days after and the defendant did not receive notice until five or six months later.  

     The defendant in Commonwealth v. O’Leary was indicted on an OUI subsequent offense, meaning that it was greater than a Fourth offense.  His case involved a common situation that Massachusetts OUI Lawyers encounter.  He got into a one car accident and was taken to the hospital.  When the officer got to the hospital it appeared as though O’leary was intoxicated.  He admitted to a couple of beers, had bloodshot and glassy eyes as well as slurred speech.  

The officer informed the defendant that he would receive a summons in the mails for OUI.  The officer had to seek approval of the report and did not issue the summons until nine days later.  This was an important fact that came out at the motion hearing as the motion judge found no good reason for the nine day delay.  

The officer put the citation in the station mail box which the defendant did not receive until five or six weeks later due to an error with the zip code.  

A superior court judge granted the defendant’s motion to dismiss.  The Commonwealth relied on the third exception to the statute to argue that dismissal was not appropriate.  This exception is essentially a check all stating that when the purpose of the statute has not been frustrated.  

The SJC detailed the purpose of the statute.  Section 2 of Massachusetts OUI Laws states that a police officer shall fill out a citation and provide a copy as soon as possible to the violator.  The officer shall give a copy to the violator and filature to provide a copy of the violator shall constitute a defense at any court proceedings, 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 determines that circumstances, not inconsistent with the purpose of the this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure.  

The SJC explained that in 1965 Governor John A. Volpe proposed the no fix provision in response to concerns that traffic infractions were subject to manipulation and abuse.  Prior to the passage of the law, the officer had 3 days to provide the citation; to eliminate potential for abuse the law was changed to require that the citation be provided immediately.  

Before the motion judge, the Commonwealth argued that the defendant was put on notice of the pending criminal charges, such that the purpose of the statute had been satisfied.  

The SJC affirmed its prior decision finding that the nature of the incident can put the defendant on notice, satisfying the purpose of the statute; however, the SJC declined to extend this exception so far to essentially eliminate the requirement when there is an accident.  

It appeared important to the Court’s decision affirming the dismissal that the officer testified that the reason for the delay was the approval of the supervisor. This testimony that the lawyer elicited before the motion judge was key to the SJC holding.  The record in the case established that the delay was precise the type of delay that the statute was originally meant to preclude.  

The Court rejected the Commonwealth assertion that this case was so serious that notice can be implied.  The SJC held that while this was a serious accident, it was only a single car accident, with no third person injured so it did not meet the implied notice of prior cases where a serious injury or fatality occurred at the scene.  

This is an important case for Massachusetts OUI Lawyers putting new teeth into the no fix provision of the statute.  The court declined the expansion of the implied notice provision for accidents and affirmed a dismissal despite a delay in the issuance of the citation.