Man has OUI charges dismissed because State Police waited too long to charge him

The Supreme Judicial Court today dismissed the OUI case against a man who rolled his car over on a Rte. 3 ramp in Braintree in 2014 because State Police didn't issue him a citation until nine days later - a violation of a state law intended to fight ticket fixing.

The ruling means the driver, Richard O'Leary, will not have to face trial on what would have been his fifth OUI charge, or face a charge of operating after revocation of his license - which he lost because of his prior four OUI convictions. In fact, at the time of the crash, he was on probation for one of those convictions.

The state's highest court suggested State Police might want to adjust their policies to keep this sort of thing from happening again: The state trooper who investigated the crash told O'Leary in the hospital - where he was brought, along with his passenger - that he would be charged with OUI and operating after suspension, after observing what he said was O'Leary's glassy eyes and slurred speech, but then had to wait nine days for his supervisor to approve the charges before sending O'Leary a court summons.

The state law requires a police officer to issue a traffic citation "at the time and place of the violation," but does allow for some exceptions. A Norfolk Superior Court judge agreed with O'Leary that the delay was too long, but the Massachusetts Appeals Court reinstated the charges, saying that while there was no good reason for the delay, it wasn't caused by any "manipulation or misuse of the citation," and noted that the trooper had told O'Leary at the hospital he was planning to charge him.

But in its ruling today, the SJC said that's not good enough. The court said the current law was passed in 1965 specifically because of the previous system, in which citations were not issued until after a police chief or other supervisor reviewed them, which allowed the opportunity for somebody facing potential cases who happened to know the higher up to have the citation squelched, and that the key thing then and now was the opportunity to have the ticket fixed.

Even though there is no evidence O'Leary sought to do this, nine days between crash and the issuing of the citation is just too long, the court ruled.

The circumstances that caused the delay in this case are strikingly similar [to pre-1965 days]: rather than issue a citation "at the time and place of the violation," G. L. c. 90C, § 2, Gray drafted an accident report and submitted it to his supervisor, whose approval was necessary for the citation to issue. It was this very practice of traffic officers requiring supervisory approval, and the delay in time that this created between the traffic violation and the ultimate issuance of the citation, that the Legislature deemed too great an "opportunity for subsequent maneuvering or pressure." Newton Police Ass'n, 63 Mass. App. Ct. at 699, quoting 1965 Senate Doc. No. 839. Here, the delay was for an "[i]nexplicabl[e]" nine days. We cannot conclude, based on the history and antiabuse purpose of the nofix provision, that these circumstances somehow remain "[]consistent with the purpose of [§ 2]." G. L. c. 90C, § 2. Even if it were undisputed that the defendant received sufficient notice of the impending charges against him, this same fundamental problem would remain.