Opinion
No. 11–P–1827.
2013-01-17
COMMONWEALTH v. Thomas F. FRAZIER.
By the Court (GRASSO, MEADE & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol in violation of G .L.c. 90, § 24(1)( a )(1), and negligent operation of a motor vehicle in violation of G.L.c. 90, § 24(2)( a ). On appeal, the defendant claims error in the denials of his motions to suppress and to dismiss. We affirm.
1. Motion to suppress. The defendant claims the police officer was justified neither in stopping his car, nor in ordering him to exit the car. We disagree. Having seen the defendant driving a car with two tires described as “shredded” and “destroyed,” as the motion judge properly found, the police officer was fully justified in stopping the car for the objectively reasonable basis of public safety regardless of the applicability of G.L.c. 90, § 7. See Commonwealth v. Murdough, 428 Mass. 760, 763–764 (1999); Commonwealth v. Canavan, 40 Mass.App.Ct. 642, 645 (1996). The defendant also claims that the officer's exit order was unjustified. More specifically, the defendant claims that absent additional signs of intoxication, the officer's detection of an odor of alcohol emanating from the defendant's car failed to provide reasonable suspicion to support the exit order. We disagree. When an officer detects an “odor of alcohol,” i.e., one of the “clues of impaired operation,” he is provided a sufficient basis for conducting additional investigation, including ordering the operator out of the car. See Commonwealth v. Murphy, 454 Mass. 318, 320 (2009); Commonwealth v. Bazinet, 76 Mass.App.Ct. 908, 908–909 (2010).
In any event, here the officer had more than an odor of alcohol. The officer also observed the defendant's negligent operation of a car with destroyed tires, and the defendant's apparent lack of knowledge of that fact. When the defendant pulled over, he also started to drive again, before stopping a second time, and had trouble differentiating his driver's license from other cards in his possession. As the motion judge properly found, all these factors more than justified the exit order. The motion to suppress was properly denied.
2. Motion to dismiss. The defendant also claims the motion judge erred in denying his motion to dismiss based on a claimed violation of Mass.R.Crim.P. 36, 378 Mass. 909 (1979). We disagree. Because the defendant was not brought to trial within one year of his arraignment, he made a prima facie showing of a rule 36 violation. To overcome that prima facie showing, the Commonwealth had the burden of justifying any delay beyond the one-year period allowed by the rule. Commonwealth v. Bourdon, 71 Mass.App.Ct. 420, 424 (2008). “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods' provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.” Ibid., quoting from Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). “[T]o meet its burden, the Commonwealth does not have to demonstrate that the defendant assented, on the record, to the various continuances of the trial dates.” Ibid., quoting from Commonwealth v. Fleenor, 39 Mass.App.Ct. 25, 27 (1995). “Rather, the obligation is on defense counsel to object to delay.” Ibid. See Barry v. Commonwealth, 390 Mass. 285, 296 n. 13 (1983); Commonwealth v. Dias, 405 Mass. 131, 139 (1989). Here, for the reasons stated on pages 17 through 19 of the Commonwealth's brief, the defendant has failed to show that he objected to sufficient periods of excludable time or that he did not acquiesce in or benefit from the delay.
Judgments affirmed.