This rule shall be applicable in the Boston Municipal Court, District Court and Juvenile Court Departments. This rule governs
(1) the procedure for the determination of responsibility for civil motor vehicle infractions, in accordance with G.L. c. 90C, § 3 , at hearings conducted by clerk-magistrates, de novo hearings conducted by judges, and hearings held by judges where the civil motor vehicle infraction has arisen from the same occurrence as a criminal automobile law violation cognizable under G.L. c. 90C, § 3(B) ;
(2) the procedure for civil contempt in civil motor vehicle infraction cases; and
(3) appeal under G.L. c. 90C, § 3(A) of issues of law arising from the decisions of judges in civil motor vehicle infraction cases. Such appeal is available following adjudication by judges in cases heard on appeal following a clerk-magistrate's finding and disposition, and in cases where the civil motor vehicle infraction arose from the same occurrence as a criminal motor vehicle violation cognizable under G.L. c. 90C, § 3(B) .
This rule shall be construed and applied to secure the prompt and informal determination of civil motor vehicle infractions.
(1) General. When conducted by a clerk-magistrate, hearings on civil motor vehicle infractions, other than in juvenile proceedings, shall take place in a room to which the public has access. When conducted by a judge on appeal or in conjunction with a criminal violation, such hearings shall be held in a courtroom. The judge or clerk-magistrate shall inform the parties that he is conducting a non-criminal hearing on an alleged civil motor vehicle infraction. Counsel may participate in such hearings.
All witnesses shall be placed under oath. The rules of evidence shall not apply at such hearings. The evidence shall be given such weight as the judge or clerk-magistrate deems appropriate. Questioning and cross-examination of witnesses shall proceed to the extent and in the manner determined appropriate by the judge or clerk-magistrate, provided, however, that a party shall not be denied the opportunity to present relevant evidence or cross-examine witnesses.
Hearings on civil motor vehicle infractions shall not be delayed or postponed except for good and sufficient reason.
(2) Finding and Disposition. At the conclusion of the hearing, the judge or clerk-magistrate shall announce a finding and disposition of "not responsible" or "responsible." The judge or clerk-magistrate shall enter a finding of "not responsible" if he determines that it was not shown, by a preponderance of the credible evidence, that the alleged violator committed the infraction charged. If the judge or magistrate determines by a preponderance of the credible evidence that the alleged violator did commit the infraction charged, he shall enter a finding of "responsible" and impose an assessment which shall be within the range permitted by law and in accordance with any applicable guidelines that have been promulgated pursuant to law. No other disposition shall be permitted. No disposition may be suspended and no costs shall be assessed, except that after a finding of "responsible" the judge or clerk-magistrate may continue the proceeding for a limited time to permit the violator to pay the assessment imposed. No case shall be continued without a finding or filed, and no person shall be subject to any terms of probation or any other requirement; provided, however, that if the violator has been found guilty and is simultaneously being sentenced upon a criminal motor vehicle violation that arose from the same occurrence as one or more civil motor vehicle infractions, the judge may order any other civil motor vehicle infractions to be filed without imposition of an assessment.
(3) Appeal of Clerk-Magistrate's Finding and Disposition. Claim of appeal to a judge from a clerk-magistrate's finding and disposition shall be made upon the clerk-magistrate's announcement of the finding and disposition, and shall be noted on the citation. There shall be no filing fee for such appeal.
(1) General. Upon (1) failure of a person who has received a citation for a civil motor vehicle infraction to either make timely payment of the appropriate civil assessment or notify the court that he wishes to contest the infraction in accordance with G.L. c. 90C , or (2) failure or refusal of such person to pay such assessment after being found responsible, within the time allowed, or (3) failure of such person, without good cause, to appear for a hearing on a civil motor vehicle infraction, a judge of the court may issue, at the request of the District Attorney or police prosecutor or clerk-magistrate, or sua sponte, a complaint for civil contempt against such person. Such complaint shall be on a form prescribed therefor, and shall indicate the failure or refusal that is the basis for the contempt charge.
(2) Summons. Upon the signing of the complaint by the District Attorney, by the officer involved or by a designated officer of the police department involved, or, in the case of a complaint requested by the clerk-magistrate or order issued by a judge, by the clerk-magistrate, the court shall forthwith issue a summons to the person so charged, together with a copy of the complaint, requiring said person to appear before the court on a date certain to explain the reasons for such failure or refusal as set forth in the complaint.
(3) Service. The summons and copy of complaint shall be served by first-class mail or by any officer authorized to serve criminal process, as provided by law. Service by said officer shall be made in hand or by leaving a copy at the defendant's last and usual place of abode.
(4) Arrest Warrant. If the person fails, without good cause, to appear in response to the summons, and the court has satisfactory proof of service of said summons, an arrest warrant may be issued, and shall be served by any officer authorized to serve criminal process. Upon appearance in court on said warrant, the hearing on the civil contempt shall proceed.
(5) Hearing. Proceedings for civil contempt under this rule shall be prosecuted by the District Attorney or police prosecutor, pursuant to G.L. c. 90C, § 3(A) , and heard by a judge. At the hearing in such cases, testimony shall be taken under oath. If the court determines by a preponderance of the credible evidence that the person's failure or refusal as alleged in the complaint did occur and is without good cause, the court shall adjudicate the defendant to have committed an act of civil contempt. If the court finds that the defendant did not commit an act of civil contempt, it shall forthwith proceed to make such order as is necessary for the disposition of the pending civil motor vehicle infraction.
(6) Disposition and Adjudication of Contempt. Upon entry of a finding that the defendant has committed an act of civil contempt, the court may, consistent with the court's determination of the defendant's ability to pay, order payment of an amount, in addition to any other sum then owed, to reimburse the Commonwealth or the appropriate political subdivision thereof for the reasonable expense related to the person's failure or refusal to act that constituted the contempt, together with an amount for the reasonable expense involved in prosecuting the contempt action, including cost of service. If necessary, the court, consistent with the court's determination of the defendant's ability to pay, shall commit such person so adjudicated in civil contempt to the county jail or house of correction until all amounts owed are paid or shall order such commitment and stay its execution for a reasonable time to allow such payment; provided, however, that juveniles shall be committed to the Department of Youth Services and incarcerated as provided by law. Such contempt shall be considered purged upon payment of all amounts owed.
(7) Other Actions. Procedure under this rule shall not be construed to exclude any other remedy otherwise available by law.
(8) Appeal of Contempt. Parties may appeal matters of law arising in a contempt proceeding to the appropriate Appellate Division.
(1) Claim of Appeal. Claim of appeal to the appropriate Appellate Division shall be filed with the clerk-magistrate of the court in which [which] the civil motor vehicle infraction was heard. Such claim of appeal shall be set forth in writing on the form provided therefor and shall state specifically the issue of law which appellate review is sought. Such claim of appeal shall be filed no later than ten days following the entry of the court's determination of responsibility in the civil motor vehicle infraction case.
(2) Transmission of Papers to the Appellate Division. Upon receipt of a claim of appeal, the clerk shall promptly transmit a copy of it, together with copies of all papers in the case then on file, including the citation, front and back, to the appropriate Appellate Division.
(3) Notice From Appellate Division. Upon receipt of the case, the Appellate Division shall notify the parties of the right to submit written briefs on the legal issue or issues presented for review, and the date by which such briefs must be submitted. Said notice shall also indicate, where deemed necessary by the Appellate Division, that a review of the tape recordings of the proceedings, if such recording is available, will be required for proper appellate review, and in such cases, shall instruct the appellant to obtain a cassette copy of the tape in accordance with the applicable procedures and provide it to the Appellate Division by a date certain.
(4) Appellate Division Review. Appeals shall be reviewed and decided by the Appellate Division without oral argument unless the Appellate Division shall otherwise allow, and this shall also be indicated to the parties in the aforementioned notice. When oral argument is allowed, the parties shall be informed reasonably in advance of the date, time, and place of such proceedings, and the time to be allowed for argument, which shall be in the discretion of the Appellate Division.
(5) Disposition by the Appellate Division. If, as a result of its resolution of a legal issue presented for appeal, the Appellate Division concludes that prejudicial error occurred in the civil motor vehicle infraction proceeding, it shall order the court's finding and disposition vacated, and shall order a new hearing held, consistent with its rulings on the legal issues that were the subject of the appeal, or the case dismissed or the violator found not responsible, whichever disposition it deems appropriate.
If the Appellate Division finds that no issue of law is presented or that no prejudicial error occurred, it shall affirm the adjudication of the court below.
Failure by the appellant to comply with these rules may be grounds for dismissal of the appeal.
The Appellate Division shall communicate its findings and its order, if any, to the parties and the clerk-magistrate of the court from which the appeal was taken. Upon receipt of said finding and order, said clerk shall take all other necessary action, including collection of any assessment or other charge the payment of which was stayed pending the appeal.