Com. v. Mullins

• Decision Date: 12 May 1975
• Citation: 367 Mass. 733,328 N.E.2d 503
• Parties: COMMONWEALTH v. Brian H. MULLINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 503

328 N.E.2d 503

367 Mass. 733

COMMONWEALTH v. Brian H. MULLINS.

Supreme Judicial Court of Massachusetts, Worcester.

Argued April 9, 1975.

Decided May 12, 1975.

T. Philip Leader, Worcester, for defendant.

John D. Keeton, Jr., Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The defendant was found guilty in the First District Court of Eastern Worcester of speeding and failure to slow when approaching a pedestrian. He appealed to the Superior Court, where he moved to dismiss the complaints on the ground that he was not given a citation at the time and place of the alleged violations, as generally required by G.L. c. 90C, § 2, and that none of the statutory exceptions to that general requirement was applicable.

The third paragraph of § 2 of G.L. c. 90C, as amended by St.1968, c. 725, § 2, provides that the 'failure to give the original of the citation to the offender at the time and place of the (automobile law) violation shall constitute a defense in any trial for such offense, except where the violator could not have been stopped or where additional time was reasonably necessary to determine the nature of the violation or the identity of the offender or where the court finds that some circumstance, not inconsistent with the purpose of this section, namely, to cause violators of automobile law to be brought uniformly to justice, justifies the failure.'

The judge heard evidence on the motion ot dismiss and denied the motion. He filed no findings of fact. The defendant was found guilty on both charges. He argues his exception to the denial of his motion to dismiss.

From the evidence before the judge on the motion to dismiss, it is clear that no citation was given to the defendant at the time and place of the accident. The burden was thus on the Commonwealth to establish that one of the exceptions in § 2 justified the prosecution of the defendant. It is uncontroverted that the defendant stopped at the scene of the accident and that his identity was established beyond question by a police officer and an inspector from the registry of motor vehicles (registry). No facts support a finding that additional time was reasonably necessary to determine the nature of the violation.

Therefore, the only apparent basis for the denial of the motion to dismiss was an implied finding (see Commonwealth v. Pizzano, 357 Mass. 636, 638--639, 260 N.E.2d 643 (1970)) that some circumstance, not inconsistent with the purpose of § 2, justified the failure to deliver the citation at the time and place of the alleged offenses. On this issue, the police officer, who mailed the citation to the defendant nineteen days after the accident, testified that he had not done so earlier because he thought the registry inspector had issued a citation sooner. He did not testify that he thought the registry inspector had issued a citation at the time and place of the accident.

The Commonwealth argues that the purpose of § 2 is to give an automobile law violator prompt notice of the charges so...