Opinion
No. 15–P–1408.
06-06-2016
COMMONWEALTH v. Alexander R. MARCHURS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant Alexander R. Marchurs appeals from the judgments on charges of operating while under the influence, see G.L. c. 90, § 24(1)(a ) (1), and negligent operation, see G.L. c. 90, § 24(2)(a ). He argues that the judge erred in denying his motion to dismiss and in the alternative, that his counsel was ineffective. We affirm.
The judge could have found the following facts at the hearing on the motion to dismiss: the defendant crashed his car into a light pole. The police found the car still running with the defendant slumped over the wheel and unresponsive. The police broke into the vehicle by smashing the back windows. The defendant slowly regained consciousness and presented a drowsy condition; he was then transported to the hospital. Later that night at the hospital, the defendant told the officer that he had tested positive for heroin earlier that day, and consequently had been removed from a treatment center. The defendant stated that he had then acquired more heroin and used it before driving. The officer informed the defendant that the citation would issue, also telling him that he would not be placed in custody that night, but would be summonsed to court. That night, the officer recorded the violations on a citation; the citation was then mailed to the defendant.
The defendant was Mirandized before he made these statements, the admissibility of which he does not challenge on appeal.
General Laws c. 90C, § 2, as appearing in St.1985, c. 794, § 3, provides that “[a] failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation, except ... where the court finds that a circumstance ... justifies the failure.” The burden falls upon the Commonwealth to show justification of such failure. Commonwealth v. Correia, 83 Mass.App.Ct. 780, 783 (2013).
That circumstance must “not [be] inconsistent with the purpose of th[e] section to create a uniform, simplified and noncriminal method for disposing of automobile law violations.” G.L. c. 90C, § 2.
The defendant concedes that the Commonwealth sustained its burden regarding justification for the failure to record and deliver the citation at the scene of the violation. However, he argues that because the statute further provides that “the violation shall be recorded upon a citation as soon as possible after such violation,” G.L. c. 90C, § 2, the officer was required to deliver the citation to the defendant at the hospital after it had been recorded. We disagree with this interpretation of the statute.
The relevant portion of the statute provides: “In such case the violation shall be recorded upon a citation as soon as possible after such violation and the citation shall be delivered to the violator or mailed to him at his residential or mail address or to the address appearing on his license or registration as appearing in registry of motor vehicles records.” G.L. c. 90C, § 2. The officer arrived on the scene just after 9:00 P.M. (the citation states that the violations in question occurred at 9:07 P. M. ). The officer testified that the violations were recorded on a citation on the same date, before midnight, after he had obtained information necessary to complete his investigation. Thus, at the latest, the citation was recorded within three hours of the violations. The officer mailed the citation to the defendant as permitted by the statute after orally notifying the defendant of the citation and the intended method of delivery. The statute contains no requirement that a copy of the citation be delivered at the time the violations are recorded. See Commonwealth v. Russo, 30 Mass.App.Ct. 923, 924 (1991), quoting from G.L. c. 90C, § 2 (interpreting statute as requiring “police [to] draw up the citation ‘as soon as possible after such violation’ and mail or deliver it to the defendant”). See also Commonwealth v. Moulton, 56 Mass.App.Ct. 682, 685 (2002).
That is, when the police “fail[ ] to give a copy of the citation to the violator at the time and place of the violation.” G.L. c. 90C, § 2.
We further note that the dual objectives of the statute, “to prevent corrupt manipulation of traffic tickets ... and early notice to the offender about the violation being charged,” were satisfied by the officer's actions. Commonwealth v. Russo, 30 Mass.App.Ct. 923, 924 (1991), citing Commonwealth v. Perry, 15 Mass.App.Ct. 281, 283 (1983).
Because the police officer properly followed the statutory procedure, we decline the defendant's invitation to determine whether the judge improperly shifted the burden of proof to the defendant by stating that “there was no indication one way or the other whether or not the defendant had any knowledge of whether or not he was comprehending anything that was going on at [the hospital].”
The defendant argues in the alternative that his trial counsel's failure to elicit testimony about the defendant's condition at the hospital constituted ineffective assistance of counsel. In light of our interpretation of the statute, the defendant's condition was irrelevant. He has therefore failed to show that his counsel rendered ineffective assistance that “has likely deprived [him] of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Judgments affirmed.