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Com. v. Riley8/30/1996
Motor Vehicle, Operating under the influence, Citation for violation of motor vehicle laws. Practice, Criminal, Citation for violation of motor vehicle laws.
PORADA, J. The sole issue presented by this appeal is whether a private citizen's complaint against the defendant for operating a motor vehicle while under the influence of alcohol was barred by a police officer's failure to issue the defendant a timely citation for this offense. A District Court Judge concluded that the complaint was barred and allowed the defendant's motion to dismiss on the ground that the complaint was used as an "artifice" to circumvent the provisions of G. L. c. 90C, § 2. We agree and affirm the judgment of dismissal.
We summarize the undisputed facts garnered from the record. On October 24, 1993, a Hingham police officer, as a result of an automobile accident, issued the defendant a citation for three violations of the motor vehicle laws, namely failure to keep to the right, speeding, and operating so as to endanger. Before the trial of these offenses in the Hingham District Court, the district attorney's office issued a summons to South Shore Hospital for the production of the defendant's hospital record pertaining to injuries for which she was treated at the hospital on the night of the accident. This record indicated that the defendant had a blood alcohol level of .20 percent upon her admittance to the hospital.
Subsequent to the Disposition of the three motor vehicle violations, on February 10, 1994, an assistant district attorney filed an application for a complaint charging the defendant with operating while under the influence of alcohol based on her blood alcohol reading at the time of the accident. On February 15, 1994, the Hingham police department issued a citation by mail advising the defendant that a criminal complaint would be sought against her for operating while under the influence based on this accident. On the same date, the Hingham police also applied for a criminal complaint for this offense.
On March 15, 1994, a show cause hearing was scheduled before a clerk magistrate at the Hingham District Court on the applications for complaints of the assistant district attorney and the Hingham police department. At the start of the hearing, the police withdrew their application. The hearing then proceeded on the application of the assistant district attorney. During the hearing, the clerk magistrate suggested that the assistant district attorney's application for the complaint might well be denied because it suffered from the same defect as the application by the Hingham police, namely the failure to issue a timely citation to the defendant for this offense. The clerk magistrate also suggested that an application could be filed by a private citizen. As a result, the assistant district attorney withdrew his application, and immediately after the hearing one of the occupants of the car with which the defendant's vehicle had collided filed an application for a complaint against the defendant for operating while under the influence. After a show cause hearing, a clerk magistrate issued the complaint against the defendant for operating while under the influence. The defendant then filed a motion to dismiss the complaint, which was allowed by a District Court Judge. The Commonwealth filed this appeal.
The Commonwealth argues that the Judge erred in ruling that the provisions of G. L. c. 90C, § 2, act as a bar to the prosecution of this complaint. The pertinent provision of § 2, as amended by St. 1985, c. 794, § 3, 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
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