Opinion
15-P-720
02-19-2016
COMMONWEALTH v. AMANDA MARQUES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from a District Court judgment dismissing the complaint against the defendant on the basis of G. L. c. 90C, § 2. We agree with the Commonwealth that the judge erred in allowing the defendant's motion to dismiss, and reverse the judgment.
The case is controlled in material respects by Commonwealth v. Moulton, 56 Mass. App. Ct. 682 (2002). In that case, as in the present one, the defendant was transported by ambulance from the scene of an accident involving the motor vehicle she had been operating and the police officer followed the defendant to the hospital where he continued to gather evidence of her potential intoxication. Again as in the present case, after advising the defendant that he would be mailing her a citation for operating under the influence, the officer did so promptly. However, he did not hand her a citation at the hospital itself. After a District Court judge dismissed the complaint, we reversed, observing that "a complaint need not be dismissed where the police have not been slothful or inattentive to the statutory requirements, and the basic objectives of the statute have been met." Id. at 684. As in Moulton, "we conclude that the basic purposes of the statute were fully met in this case." Id. at 685.
The defendant's efforts to distinguish Moulton are unavailing. To be sure, the defendant's injuries in the present case were somewhat less serious than those suffered by the defendant in Moulton, and the officer already had formed an opinion that the defendant was operating under the influence before she was transported from the scene. However, our holding in Moulton did not rest on the severity of the defendant's injuries or any obstacle her injuries posed to the officer's opportunity to communicate with her, and the officer in Moulton likewise had formed a preliminary opinion of intoxication at the scene of the accident. See id. at 686 (Greenberg, J., dissenting).
As described by the officer, the defendant needed help getting out of her vehicle, could not communicate with him, had mucus coming out of her nose, and was unsteady on her feet - and the officer detected a strong odor of alcohol on her breath.
As in Moulton, the officer's investigation into the possibility that intoxication contributed to the accident in the present case continued at the hospital; in this case by means of a blood draw to which the defendant consented.
Judgment reversed.
By the Court (Green, Hanlon & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 19, 2016.