News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Defendants Charged with a Motor Vehicle Crime in Massachusetts Are Entitled to an Unusual Form of Notice

squad-car-1209719_960_720When police conduct traffic stops, a wide array of legal principles come into play in seemingly simple interactions, including Fourth Amendment search and seizure law, the Fifth Amendment right to remain silent and refuse to incriminate yourself, laws governing civil traffic infractions, and the criminal law. (While what you should do if stopped obviously varies depending on the situation, the ACLU provides some useful general principles for how to conduct yourself if the police pull you over.) Among all of the various complex legalities of a traffic stop, however, one requirement in Massachusetts is fairly simple, though little-known: under the Massachusetts “no fix” statute, for nearly all motor vehicle offenses, police must give the violator a citation at the time and place of the violation. If they fail to do so without justification, the violator has a defense “in any court proceeding for violation,” meaning that even criminal charges against the violator must be dismissed.

The only exemption from the requirement that the police provide a copy of the citation at the time of and place of the offense is when the offense results in a death and the violator is charged with: driving under the influence, motor vehicle homicide, or causing serious bodily injury by motor vehicle while under the influence. For other motor vehicle crimes—including driving under the influence of alcohol or a drug where no death results, or driving recklessly or negligently so as to endanger the public—the police must provide the defendant a citation at the scene and failure to do so should result in dismissal of the criminal charges. The failure to provide a copy of the citation is excused only where the violator could not have been stopped; 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 . . . to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure.”

This third exception is vaguely worded and could easily have been construed so broadly as to swallow the general rule. Instead, the courts in Massachusetts have read the exception very narrowly. For example, in a case that the Massachusetts Appeals Court decided this week, Commonwealth v. Werra, a motorist was originally charged with operating a motor vehicle under the influence of drugs after she acknowledged, when stopped by police, that she had taken methadone. After her arrest police found an open glass of alcohol in the vehicle, and later obtained her hospital records, showing a very high blood alcohol level. Months later, on the day before the scheduled trial date on the OUI-drug charge, the police issued a new citation for OUI-liquor. The OUI-drug charge was then dismissed for reasons that are unclear in the decision, and a new complaint issued charging, instead, OUI-liquor. The trial court dismissed the OUI-liquor charge under the “no fix” law, and the Commonwealth appealed to the Appeals Court, arguing that the third exception justified the failure to provide the defendant with a citation at the scene. The Appeals Court affirmed the dismissal.

In affirming, the Appeals Court considered the purposes of the statute: to “prevent manipulation and misuse of traffic citations,” and to afford a defendant “prompt and definite notice of the nature of the alleged offense.” Where the defendant was not given that notice, as required in the statute, the charges against her had to be dismissed and the court could not use the third exception to excuse the lack of notice. Notably, the defendant did not have to show any actual prejudice from the lack of notice at the time and place of the offense—that is, she did not have to show any real change in her ability to defend herself resulting from the delay in notification, such as the loss of potentially exculpatory evidence. The “no fix” statute is thus far more stringent than speedy trial laws, which do heavily weigh whether a defendant can demonstrate prejudice.

On the one hand, dismissal of charges based on the failure to provide a citation at the exact time and place required can feel like a technicality that does not further the safety purposes of these laws. But notice is important in all criminal cases, and the more promptly it is given, the easier it is for a defendant to gather information that might completely change the outcome of a case. Defendants in motor vehicle cases may benefit significantly from being able to document at the time exactly what has happened, and identify witnesses present at the scene. That opportunity, once lost, can’t be regained, and it may be a significant loss even in a case where the defendant can’t prove prejudice. (The problem with having to prove prejudice is that in most cases where evidence is lost, the defense can’t prove what the lost evidence would have shown.)

Despite the clear and stringent requirements of the statute, my experience has been that it is surprisingly common for police to fail to comply with the “no fix” law. I have represented multiple clients who have simply received a citation and a notice for a show-cause hearing, commencing a criminal case, in the mail. I have also seen other errors in motor vehicle cases, including multiple cases in which clients were charged with offenses that do not exist or are civil traffic violations, not crimes. Anyone facing a show-cause hearing or criminally charged with a motor vehicle offense should consult with counsel as early as possible, to ensure that all their rights, including those under the “no fix” law, are enforced.

If you have been charged with a motor vehicle crime, please contact us to speak with an attorney at (617) 742-6020. 

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