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Commonwealth v. Magazu1/21/2000
Plymouth. December 6, 1999.
Motor Vehicle, Operating under the influence. Arrest.
Complaint received and sworn to in the Brockton Division of the District Court Department on May 6, 1998.
A motion to dismiss was heard by Paul F. X. Moriarty, J.
This is an appeal by the Commonwealth from a District Court judge's dismissal of a complaint charging the defendant with operating a motor vehicle while under the influence of intoxicating liquor. The defendant claimed that the officer was beyond his jurisdiction and, therefore, lacked authority to arrest him. We reverse the judgment.
1. The facts. Only one witness, Whitman police officer Dean Leavitt (Leavitt), testified at the evidentiary hearing held on the motion to dismiss. Leavitt related the following facts. On May 6, 1998, at about 1:50 A.M., he was in his cruiser patrolling along Route 27 in Whitman. He continued along Route 27 (Franklin Street) and entered East Bridgewater for the purpose of pulling into a nearby gas station to reverse his direction and return to Whitman. The gas station was about one-eighth to one-quarter of a mile from the Whitman town line.
Leavitt related that as he turned his cruiser and was about to leave the gas station parking area, he noticed a car proceeding along Route 14 toward its intersection with Franklin Street in East Bridgewater. The car was traveling at a high rate of speed for that area. He heard the screech of tires and saw the car proceed into the intersection, stopping one car length beyond the stop sign. Leavitt continued to watch the car as it remained stationary in the intersection for about three to five minutes. During that time, the driver, the defendant, continuously looked at Leavitt's cruiser. When the defendant again put the car in motion, he made a sharp turn onto Franklin Street in the direction of Whitman. After watching the defendant drive in the oncoming lane for about eighty feet before returning to the proper side of the road, Leavitt pulled out of the parking area and followed the defendant as he progressed into Whitman. As Leavitt did so, he remained about twenty yards behind the defendant and did not activate his siren.
While following the defendant, Leavitt saw that he crossed over the center line several times and the right shoulder line once or twice. The defendant also alternated the speed of the car from above the posted speed limit to significantly below it. While driving along Franklin Street in Whitman, the defendant rapidly decelerated the car and, without signaling, made a sharp right turn into the driveway of a private residence. Although the portion of Franklin Street abutting that driveway is a Whitman public way, the driveway itself and private residence are situated in Hanson.
2. Discussion. It is the Commonwealth's argument that Leavitt was authorized under G. L. c. 41, § 98A, as inserted by St. 1967, c. 263, to arrest the defendant in Hanson. As relevant, that statute provides: "A police officer of a city or town who is empowered to make arrests within a city or town may, on fresh and continued pursuit, exercise such authority in any other city or town for any offen e committed in his presence within his jurisdiction for which he would have the right to arrest within his jurisdiction without a warrant." The defendant counters that § 98A is inapplicable for two reasons: Leavitt's initial observations of his erratic driving were made in East Bridgewater, and Leavitt followed rather than pursued him.
Leavitt's testimony shows that his observations of the defendant in East Bridgewater gave him reason to believe that the defendant was driving under the influence of intoxica
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