Citation vs. Arrest

In Massachusetts, the police are not required to arrest you in order for you to face the criminal offense of OUI. Although most OUI offenses result in an arrest, a police officer may instead issue you a citation. Generally, a citation is issued in lieu of arrest if you are involved in an accident or you are taken to the hospital.

There are very important distinctions between being placed under arrest and receiving a citation. If you are arrested, you have been charged with a crime based upon a probable cause determination made by a police officer. Probable cause exists where the facts and circumstances within the officer’s knowledge would lead a reasonable person to believe that you committed the offense. This must be more than a mere hunch; rather, the officer must have objective evidence that indicates your responsibility for the offense. It does not, however, need to be enough to prove guilt beyond a reasonable doubt. In order for the officer to place you under arrest, they must allege that they have probable cause to do so, thereby charging you with a crime.

However, if you receive a citation for OUI, you are not yet charged with any criminal offense. The issuance of a citation does not require the officer to make any allegations of probable cause at the time of the incident. The citation is issued to provide you with notice that you may potentially be charged with a crime, and that the officer will be petitioning the court to criminally charge you through an application for a criminal complaint. Because the officer has not formally alleged probable cause to charge you when the citation was issued, you have a special right to a hearing before any criminal charges are issued against you by the court.

Right to a Magistrate’s Hearing

When a police officer issues you a citation and makes an application for a criminal complaint to the court, Massachusetts law requires that you shall be given an opportunity to be heard at a Magistrate’s Hearing before any criminal charges are issued by the court. G.L. c. 218, § 35AG.L. c. 90c, §3. If you received a citation for OUI, you have a right to request this special type of hearing within four days of receiving the citation. G.L. c. 90c, §3. If you do not request the hearing within four days, the court will deem that you have waived your right to the hearing. In order to request a Magistrate’s Hearing, you must complete the applicable section on the back of your citation and send it to the district court address listed on the front. You will then receive a summons in the mail indicating the time and place of the hearing.

At the Magistrate’s Hearing, you have a right to be represented by an attorney. During the hearing, the clerk-magistrate will first hear evidence from the police officer as to their allegations of probable cause. Then you or your attorney will be provided an opportunity to present your case as to why no criminal charges should be issued. If you are successful and the clerk-magistrate finds that there is no probable cause to support a criminal charge, the case is concluded. If the clerk-magistrate does find probable cause, a criminal charge will be issued and you will receive a summons to be arraigned on the charge in court.

There are a few situations in which the court may issue criminal charges against you without a Magistrate’s Hearing. These include instances where there is an “imminent threat of bodily injury, commission of a crime, or flight from the commonwealth.” G.L. c. 218, § 35A. Unless one of these exceptions applies, you have a right to request that probable cause be demonstrated by the police at a Magistrate’s Hearing.

If you received a summons in the mail for an arraignment charging you with OUI, and you did not receive any citation or notice of potential criminal charges, your rights under G.L. c. 218, § 35A may have been violated. It is crucial that you hire an attorney knowledgeable of this area of the law to fight for the dismissal of the criminal charges due to the constitutional due process violation of your rights.

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Citation Requirements

The law places stringent requirements on the issuance of a citation in order to protect your rights. The failure on the part of law enforcement to abide by the requirements may lead to the dismissal of an OUI charge. The issuance of citations in Massachusetts is governed by G.L. c. 90C, § 2, commonly referred to as the “no fix” law. The “no fix” law requires a police officer who has allegedly observed an automobile law violation to issue a citation “at the time and place of the violation.” The statute states that failure to issue a citation is a defense against a criminal offense. Law enforcement must notify you if they are only issuing a written warning or if they are seeking to criminally charge you.

Purpose of the “No-Fix” Law

The “no fix” law is designed to not only prevent manipulation or misuse of the citation process, it is also designed to provide you with notice of any potential criminal charges. Because a police officer is required to issue a citation “at the time and place of the violation,” the possibility of “manipulation or misuse of the citation process because of any unnecessary or unreasonable delay” is minimized. Commonwealth v. O’Leary, 480 Mass. 67, 69-70 (2018). Further, the issuance of a citation “at the time and place of the violation” “provide[s] [you with] prompt and definite notice” of the alleged violation. Commonwealth v. O’Leary, 480 Mass. 67, 69-70 (2018). Prompt and definite notice of the charge of OUI is critical because evidence of alcohol in the blood dissipates after a short period of time, and without prompt notice, you would not be able to obtain evidence that may be used to show your innocence. The law is designed to prevent a situation in which you cannot establish your own defense. Commonwealth. v. Gorman, 356 Mass. 355, 357–358 (1969).

In the case of an OUI charge, the best evidence you can obtain regarding your innocence is a test showing your blood alcohol concentration. This evidence can only be obtained through an independent blood or breath test. Due to the natural dissipation of alcohol in the blood, this evidence is fleeting and “time is of the essence.” Commonwealth v. Andrade, 389 Mass. 874, 881 (1983). If you are made to wait or are unaware of a potential OUI charge, you may lose the opportunity to obtain exculpatory evidence and are thus denied a defense. Commonwealth v. King, 429 Mass. 169, 176 (1999).

“At the Time and Place of the Violation”

The statutory language of G.L. c. 90C, § 2 requires police to issue a citation “at the time and place of the violation.” This means that you should receive the citation at the scene, whether it be an accident or another circumstance where no arrest was made. If you are taken to the hospital, police may accompany you and issue the citation there. The citation may be handed to you or your agent, meaning someone such as a family member. Police must indicate on the citation itself the personal information of the person to whom the citation is handed.

There are only a few situations in which it may be acceptable for law enforcement to issue a citation other than at the time and place of the violation. One situation is where the officer has witnessed a violation, but the vehicle could not be stopped at the time the violation occurred. Another situation occurs when police need additional time to determine the identity of the alleged violator. Commonwealth. Mullins, 367 Mass. 733, 735 (1975). This may occur where an officer was unable to stop the vehicle, during an accident, or where the driver is unconscious or seriously injured and lacks identification. Finally, additional time may be needed to determine the nature of the violation, such as when there are no other initial indicators that lead police to suspect OUI. Commonwealth v. O’Leary, 480 Mass. 67, 73 (2018). The burden is on the government to show that one of these exceptions to “no-fix” law applies.

Does an Accident Provide Notice?

In cases involving an accident, the mere fact that an accident occurred is generally not sufficient to place a person on notice of the alleged OUI violation. This is especially true in situations where only one vehicle is involved or where there are no serious injuries. Even in cases where serious injuries are involved, the courts often find that a citation is still required to inform the defendant of the nature of the alleged violation. Commonwealth v. Ray, 95 Mass. App. Ct. 848 (2019).

What Happens If Your Rights Are Violated?

The Massachusetts Supreme Judicial Court (SJC) has consistently held that “[w]here the requirements of the statute are not followed, the complaint shall be dismissed regardless of whether the defendant was prejudiced by the failure.” O’Leary, 480 Mass. at 70. Where the purpose of the statute is defeated, failure to issue a citation at the time and place of the violation is inexcusable. Commonwealth v. Werra, 95 Mass. App. Ct. 610, 615 (2019). The only appropriate remedy in these instances is dismissal of the OUI charge.

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Lawyers Holding Law Enforcement Accountable

The Massachusetts DUI lawyers at The Law Offices of Joseph D. Bernard P.C. are experienced in ensuring law enforcement complies with the law regarding citations. If law enforcement failed to properly issue you a citation for OUI or your constitutional due process rights were violated, your OUI charge could be dismissed. It is imperative that you have a lawyer that is knowledgeable in this area of the law. Hire a firm that provides a strong defense from the very start by holding law enforcement accountable.