OUI charge dismissed prior to trial for violating No Fix Statute, OUI-Liquor or .08% MGL c 90 § 24(1)(a)(1)
- Steven Topazio wrote this June 25, 2019 at 4:11 pm
The client, a 51-year-old father, hired Attorney Topazio after he was charged with several assault and battery charges including an OUI charge. Attorney Topazio learned that on the day of the event, the client’s motor vehicle was involved in a motor vehicle crash with another vehicle. Boston Police responded and issued the client a citation for marked lane violations. The client’s motor vehicle which was involved in the accident was leaking fluid and required a tow. After waiting approximately 45 minutes for the tow truck operator, the defendant got involved with an incident with the tow truck operator when he arrived and police and taken into custody. The defendant was not arrested for the assault and batteries but released. Approximately one month later the client received a second citation which now alleged an OUI offense. The client was denied a Magistrate Hearing because he was additionally charged with ABDW for kicking the Police Officer which is a felony charge. An individual is not entitled to a Magistrate Hearing when charged with a felony. Attorney Topazio filed a motion to dismiss the OUI charge for violating the no fix statute, G.L. c. 90C, §2. Attorney Topazio argued that the dismissal ground is that the police failed to make a timely delivery of a citation pursuant to G.L. c. 90C, §2, and the citation alleging OUI was issued one month after the citation the police issued for marked lanes violation. Compliance with G.L. c. 90C, §2, requires a copy of the citation of a motor vehicle offense to be delivered to the accused at the time and place of the violation or within a reasonable time thereafter. The dual objectives of G.L. c. 90C, §2, are to (a) prevent corrupt manipulation of traffic tickets (i.e., a “no fix” system) and (b) early notice to the offender about the violation being charged. Attorney Topazio argued that a complaint must be dismissed where the police have been “slothful or inattentive” to the statutory requirements, and the basic objectives of the statute have been met. Attorney Topazio pointed out to the court that there was an obvious manipulation and misuse of the citation requirement by an unjustified delay of at least (1) month of two totally different citations following a citation issued contemporaneous with the offense for merely non-criminal violations, and the court agreed.