The statute G.L. c. 211, Sec. 3 allows litigants to file emergency petitions with the Supreme Judicial Court (SJC) when extraordinary relief is warranted.
Parties cannot use such petitions unless no other means of legal redress is available. See S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).
Today the SJC held–for probably the thousandth time–that routine motions to dismiss denied by a trial-level court cannot be brought before the SJC using a 211/3 petition.
A defendant was charged with OUI in Fall River District Court.
The police did not issue a citation to the defendant on the day of the incident.
Instead the police mailed a citation to him the following day.
His lawyer filed a motion to dismiss because, he claimed, the police violated the state’s “no-fix” statute (G.L. c. 90C, Sec. 2) which requires cops to issue citations at the scene of the alleged traffic violation.
(See my post: Traffic Stops and Tickets: When Must Police Issue a Citation in Massachusetts?)
A district court judge denied the motion.
This prompted the attorney to file a 211/3 petition with the SJC for extraordinary relief.
A single SJC justice denied the petition.
Undeterred, the lawyer forced the issue before the full court.
Unsurprisingly, the SJC refused to consider the 211/3 petiton.
According to the SJC,
The denial of a motion to dismiss in a criminal case is not appealable until after trial, and we have indicated many times that G. L. c. 211, § 3, may not be used to circumvent that rule.
The full text of the slip opinion is attached below.