We are open during COVID-19 and available to speak about your case by video conference, over the phone or in person.

OUI case dismissed under no fix statute as motorist was not given a citation timely

Under Massachusetts OUI Law, a motorist must receive a citation immediately when being charged with OUI.  In a case where a motorist is not placed under arrest, the citation provides notice to the motorist of the OUI charge.  By not providing the citation immediately, A Massachusetts OUI lawyer can seek dismissal of the charge under the no fix statute.  This is what occurred in a recent case.

A Massachusetts Superior Court has dismissed an OUI charge after the 4 ½ month delay in the OUI citation was found to have not been in compliance with OUI Law and procedure. In Commonwealth v. Burnham, the defendant was the driver in a car accident but was never charged with OUI by the police officers that found him. It wasn’t until the defendant was later arrested on an OUI charge in an unrelated incident, that the prosecutor obtained medical records from the initial accident and cited him with OUI despite the time lapsed.


About the Case

On the morning of November 24, 2013, two officers of the Easthampton Police Department in Massachusetts were called to the scene of a single car accident. The driver, Christopher Burnham, was initially unresponsive and later gained consciousness. After 10 minutes, an ambulance arrived and transported Burnham to the hospital without the presence of the two officers. After learning that Burnham’s license was suspended, the officers cited him for “operating under suspension” and a “marked lanes” violation (Easthampton specific charges).


Three months later, Burnham was arrested and charged with OUI in Northampton on an unrelated incident. The Northampton prosecutor soon found out about the car accident in November and saw that the charges were still pending. An independent investigation into the November accident was launched and the prosecutor obtained Burnham’s medical records from the hospital he was admitted to that day. The medical records revealed Burnham’s blood-alcohol level of 0.18 and on April 16, 213, the prosecutor brought this toxicology report to the police officers from the case, instructing them to issue Burnham an OUI citation.


Legal Arguments Raised by the Case

The immediate issue in this case is clearly the four and half month period before the police department issued Burnham the OUI citation.


Massachusetts General Law Chapter 90C Section 2 states that failing to cite the driver in a motor vehicle offense at the “time and place of the violation shall constitute a defense in any court proceeding for such violation”. This statute only makes an exception for incidences where:

  1. The violator could not have been stopped or;
  2. Additional time was “reasonably necessary” to determine the type of violation or the identity of the violator or;
  3. The Court finds that the delay was not inconsistent with the purpose of the statute.


The prosecution stated that the officers did not immediately detect any signs that the driver was impaired due to alcohol consumption- so the nature of the violation was unclear and the officers required additional time to investigate the nature of the violation.

The defense argues that the delay in citation could not be justified by the second exception to the statute, as the investigation was not “ongoing” like the prosecution states. The officer’s admitted that the defendant did not show signs of impairment at the scene of the accident, and the officer’s motor vehicle citations at the time concluded their opinion towards the nature of the violation that had taken place. The toxicology results were only discovered in relation to the prosecutor’s investigation following a separate, unrelated incident.


Significance for Defense Attorneys  

The actions- or lack thereof- of the the officers upon their arrival at the accident scene showed that the officers did not suspect the driver of being drunk. He was never questioned, not placed under arrest and was not informed that further investigations may be done on the incident. If they had suspected the defendant of drunk driving, they could have sought out the reports from the hospital. The records were available the entire time so it is safe to say that if the defendant did not experience the second offense, the records from the first offense would have never been requested.

To read the decision of the Appeals Court, you can visit this link to the Burnham case.  You may also find Massachusetts General Laws Chapter 90 Section 2C here.

To learn more about DUI Defenses you may visit my Facebook page which has the most recent DUI news and current issues in criminal defense.

Contact Information