Commonwealth v. O’Leary (Lawyers Weekly No. 11-123-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-557 Appeals Court COMMONWEALTH vs. RICHARD O’LEARY. No. 16-P-557. Norfolk. August 16, 2017. – September 22, 2017. Present: Green, Vuono, Meade, Agnes, & Desmond, JJ.[1] Motor Vehicle, Citation for violation of motor vehicle law, Operating under the influence. Practice, Criminal, Citation for violation of motor vehicle laws, Dismissal. Notice. Indictments found and returned in the Superior Court Department on September 23, 2014. A motion to dismiss was heard by Beverly J. Cannone, J. Pamela Alford, Assistant District Attorney, for the Commonwealth. Douglas T. Babcock for the defendant. GREEN, J. We are called upon again to consider the circumstances in which the failure to issue a citation at the scene of a motor vehicle infraction does not compel the dismissal of resulting criminal charges. The Commonwealth appeals from an order of the Superior Court, dismissing a multiple-count indictment against the defendant on the ground that the police failed to make a timely delivery of the citation pursuant to G. L. c. 90C, § 2.[2] For the reasons that follow, we reverse. Background. We summarize the judge’s findings of fact, which we accept absent clear error. On the night of April 19, 2014, the defendant was involved in a motor vehicle accident on Route 3 in Braintree. The Jeep Cherokee he was driving left the highway, hit an exit sign, and rolled over five times. State police Trooper Jared Gray responded to the accident scene. The defendant and a woman, Patricia Murphy, were covered in blood and broken glass. Gray observed the defendant and Murphy being treated by emergency personnel; both eventually were taken to South Shore Hospital by ambulance for treatment. Trooper Gray spoke to both the defendant and Murphy briefly before they were taken to the hospital; at that time, each claimed to have been a passenger in the vehicle. From his observations at the scene, Trooper Gray believed the parties had suffered serious injuries.[3] He followed the ambulances to the hospital. When he arrived at the emergency room, he left his citation book in his patrol vehicle. He spoke first with Murphy. She appeared to be intoxicated, but seemed to understand his questions. As she had done at the accident scene, she told Gray that she had been a passenger in the vehicle. Gray next spoke […]