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Massachusetts Appeals Court Completely Ignores the Purpose of the “No-Fix” Statute

In a terrible decision delivered today, the Massachusetts Appeals Court made a mockery of the  “no-fix” law, which requires a police officer to make a timely delivery of a citation following a motor vehicle violation.  The name of the case is Commonwealth v. O’Leary

On April 19, 2014, the defendant crashed his Jeep Cherokee on Route 3 in Braintree.  He and his passenger were both injured in the accident, which involved the Jeep veering off the highway and rolling over five times.  A state trooper showed up at the accident scene as the defendant and his passenger were being treated by EMTs.  When the defendant was transported by ambulance to the hospital, the trooper followed him.  At the hospital, the trooper was able to talk to the defendant, who had slurred speech and smelled like alcohol.  The defendant said he was the driver and admitted to having had a couple of beers before the accident.  He was on probation for a prior OUI conviction and his license was suspended.  The trooper told the defendant he would receive a criminal summons in the mail.  When the trooper left the hospital, he wrote his report and filed it with his supervisor.  It took nine days for the report to be approved.  At the end of the nine-day period, the trooper finally mailed a citation to the defendant, which charged him with operating under the influence of alcohol, subsequent offense.  Because the letter contained an incorrect zip code, the defendant did not actually receive the citation for another five or six weeks.  During this time period, the defendant did not hire an attorney or prepare in any way to defend the criminal case.

There is a statute in Massachusetts, known as the “no-fix” law, that requires police officers to provide a copy of the citation to a driver at the time and place of the violation.  There are three exceptions to the requirement of an immediate issuance of a citation: (1) the driver could not have been stopped; (2) additional time was necessary to determine the identity of the driver or the nature of the violation; and (3) a court finds some other circumstance justifies the failure.  If the police violate the no-fix statute, the defendant is entitled to have his case dismissed, which is what happened here.  A superior court judge concluded the police had violated the no-fix law and dismissed the defendant’s case, and the Commonwealth appealed.

A majority of the Appeals Court panel concluded the third exception applied to this case and reversed the superior court judge’s order of dismissal.  The Court reasoned the defendant had been placed on notice of the forthcoming criminal charges when the trooper told him at the hospital that a criminal summons would be mailed to him.  The Court acknowledged that “there does not appear to have been any strong reason for the [nine-day] delay” in sending the summons.  Despite this obvious and indefensible violation of the statute, the Appeals Court essentially shrugged its shoulders and ruled the defendant’s case should not have been dismissed.

Two justices dissented.  The dissent pointed out that the superior court judge determined the defendant had not been placed on oral notice of the pending charges because he was boarded and immobilized at the time of his conversation with the trooper.  Further, there was no justification whatsoever for a nine-day delay in mailing the citation.  The trooper’s investigation was finished by the time he left the hospital.  The defendant’s identity as the driver had been established and no further investigation was necessary.  As the dissent correctly points out, the no-fix statute does not allow for the citation issuance to be delayed for the administrative convenience of the police.  The dissent also asks, if a nine-day delay was acceptable, how about a 12-day, 20-day, or 30-day delay?  The majority opinion doesn’t tell us.

It would be hard to find a worse appellate decision than this one.  Interestingly, the three justices who originally heard the case voted 2-1 to affirm the superior court judge’s decision to dismiss the case.  Sometime later, two other justices were added to the panel, who voted to reverse the superior court judge’s decision.  The result is a 3-2 decision against the defendant.  Hopefully the Supreme Judicial Court will reverse this embarrassing decision.

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