On November 4th 2009, the Massachusetts appeals court ruled in Commonwealth v. Patel No. 08-P-1312 an unpublished opinion, that the delay in issuing a citation in an OUI case did not create an error resulting in the dismissal of all charges under MGL 90c § 2.
Although an unpublished opinion does not set precedent, it can be used for persuasive value in the future and provides a good recent illustration of what the legislative intent of the statute is. According to the court, “General Laws c. 90C, § 2, requires that the police issue a citation at the time and place of the violation. The purpose of the citation requirement is two-fold: to discourage the ‘fixing’ of tickets and to provide prompt notice to the alleged offender. See Commonwealth v. Kenney, 55 Mass.App.Ct. 514, 518 (2002); Commonwealth v. Moulton, 56 Mass.App.Ct. 682, 685 (2002). In cases where the issuance of a citation failed to comply with G. L. c. 90C, § 2, the Commonwealth has the burden of establishing that a statutory exception justified the delay. Such exceptions include (1) ‘where the violator could not have been stopped’; (2) ‘where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator’; or (3) ‘where the court finds that a circumstance… justifies the failure.’ G. L. c. 90C, § 2, as amended by St. 1985, c. 794, § 3.”
From a practical standpoint, many OUI accidents require a thorough investigation that may or may not be concluded hours after the defendant has left the scene (or been transported to the hospital). To argue that a decision must be made at the time of the accident whether or not a citation should be issued would have been foolish on so many levels. As an aside, officers should take note however of the exceptions not just in this case, but in all as they may or may not be forced to defend their decision to issue a citation after the fact or mail it after the offense has occurred.
Attorney Ronald A. Sellon