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Com. v. Bocchino10/21/2003
This is another case where police sloppiness in complying with G.L. c. 90C, § 2, gives rise to the claim that the complaint against the defendant should be dismissed and that his conviction of driving under the influence of alcohol should be reversed. In addition to claiming deficiencies in the statutory citation process, the defendant urges error by the trial judge in not allowing him to raise the issue of noncompliance before the jury. We affirm the conviction.
The complaint arose from a collision involving a motor vehicle driven by the defendant and another vehicle on December 25, 1998. The passenger in the other car was severely injured and he and both drivers were taken to hospitals. Each vehicle was considered a total loss and each driver was charged with operating under the influence of alcohol.
1. Deficiencies in citation process. Prior to trial, the defendant filed numerous motions to dismiss, asserting, inter alia, that the police failed to comply with G.L. c. 90C, § 2, the relevant parts of which are set forth in the margin. [FN1] On appeal, he claims that despite the motion judge's finding that the defendant was given a citation in hand at the hospital, the record does not bear this out. He also argues that dismissal is required because the citation was not returned to court within the required period of not later than the fourth business day after the date of the violation. [FN2]
FN1. The so-called "no fix" motor vehicle citation statute, G.L. c. 90C, § 2, as amended through St.1992, c. 379, § 4, states in part:
"[A]ny police officer assigned to traffic enforcement duty shall, whether or not the offense occurs within his presence, record the occurrence of automobile law violations upon a citation, filling out the citation and each copy thereof as soon as possible and as completely as possible and indicating thereon for each such violation whether the citation shall
constitute a written warning and, if not, whether the violation is a criminal offense for which an application for a complaint ... shall be made,.... Said police officer shall inform the violator of the violation and shall give a copy of the citation to the violator. Such citation shall be signed by said police officer and by the violator, and whenever a citation is given to the violator in person that fact shall be so certified by the police officer. The violator shall be requested to sign the citation in order to acknowledge that [it] has been received.... No other form of notice, except as provided in this section, need be given to the violator.
"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.
"If the police officer has not directed that a written warning be issued and has not arrested the violator, the police chief or a person duly authorized by him shall retain the police department copy of each citation, and not later than the end of the fourth business day after the date of the
violation: ... (b) in the case of citations alleging one or more criminal automobile law violations, shall cause all remaining copies of such citations to be delivered to the clerk-magistrate of the district court for the judicial district where the violation occurred." (Emphasis added.)
FN2. The citation was dated December 25, 1998, t
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