NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-675
DEPARTMENT OF STATE POLICE
vs.
MIKHAEL H. EL-BAYEH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a de novo hearing, a judge of the District Court
found the defendant, Mikhael El-Bayeh, responsible for the civil
motor vehicle infraction of speeding, G. L. c. 90, § 17. El-
Bayeh appealed to the Appellate Division, which affirmed the
District Court judge's finding of responsibility. El-Bayeh now
appeals, arguing, among other things, that (1) the de novo
hearing judge (hearing judge) erred by denying El-Bayeh's motion
to dismiss the speeding citation and (2) the motion judge
(motion judge) erred by denying El-Bayeh's motion to permit
inspection of written documents and materials in possession of
the Department of State Police (department) that he argues were
essential to his defense. We reverse the decision and order of the Appellate Division and remand for entry of an order vacating
the District Court's finding of responsibility.
Background. 1. Procedural history. On August 4, 2021, a
State trooper issued El-Bayeh a citation for speeding, which El-
Bayeh appealed to a clerk-magistrate of the District Court. The
clerk-magistrate found El-Bayeh responsible for the infraction.
El-Bayeh then requested a de novo appeal to a judge of the
District Court.
Prior to the hearing, El-Bayeh moved for, among other
things, discovery. His motion was denied. We reserve for later
discussion the discovery El-Bayeh sought. Following the de novo
hearing, the hearing judge found El-Beyah responsible. El-Bayeh
then appealed to the Appellate Division, which affirmed the
finding of responsibility.
2. Statement of facts. We summarize the evidence
presented at the de novo hearing at which State Trooper Michael
Sierra testified and El-Bayeh, who represented himself,
presented his case. On August 4, 2021, at approximately 6:30
P.M., the trooper was parked in the ramp area connecting
Interstate Highway 95 and Route 3 in Burlington. It was
slightly raining and cloudy, and the "roadways were slightly
damp." The trooper heard an "engine sounded to be at full
throttle," and when he looked up, he saw a gray Subaru Forester
2 "flying past" him at the top of the ramp. The trooper visually
estimated that the vehicle was traveling fifty miles per hour
and accelerating, whereas other cars on the ramp were traveling
at roughly thirty miles per hour. As the Forester accelerated
past the trooper, he retrieved his light detection and ranging
(LIDAR)1 device. The trooper visually estimated that the
Forester was by then traveling at seventy-five miles per hour,
and the LIDAR device measured a speed of seventy-two miles per
hour. The vehicle was traveling in a zone with a posted speed
limit of fifty-five miles per hour. The trooper stopped the
vehicle, identified the operator as El-Bayeh, and issued a
citation.
During the hearing, El-Bayeh objected to the introduction
of LIDAR evidence, and he cross-examined the trooper about how
the trooper visually estimated the speed of El-Bayeh's vehicle.
During the trooper's testimony, El-Bayeh moved to dismiss on the
grounds that the citation was not entered into evidence. The
hearing judge denied the motion to dismiss, found El-Bayeh
responsible, and imposed a fine of $105. El-Bayeh appealed to
1 "'Lidar,' a portmanteau of 'light' and 'radar,' refers to '[a]n optical sensing technology used to determine the position, velocity, or other characteristics of distant objects by analysis of pulsed laser light reflected from their surfaces'" (citation omitted). Commonwealth v. Crowder, 495 Mass. 552, 554 n.3 (2025).
3 the Appellate Division, which affirmed the de novo judge's
Discussion. 1. Motion to dismiss. El-Bayeh asserts that
the hearing judge erred in denying his motion to dismiss because
the trooper did not introduce a copy of the traffic citation
into evidence and, therefore, the department did not show
probable cause that he was speeding, and the department did not
satisfy the "no-fix" law, G. L. c. 90C, § 2. We disagree.
First, because the trooper testified that he observed El-
Bayeh speeding, the trooper had probable cause to believe that
El-Bayeh committed a civil motor vehicle infraction. See
Commonwealth v. Lobo, 82 Mass. App. Ct. 803, 808-809 (2012)
(trooper's "immediate observation that none of [a vehicle's]
occupants was wearing a seat belt provided a basis to cite . . .
all the vehicle's occupants . . . for a seat belt law
violation"); Commonwealth v. Zimmermann, 70 Mass. App. Ct. 357,
359 (2007) (trooper's visual observations provided probable
cause that defendant was operating his motor vehicle at rate of
speed that was greater than reasonable or prudent).
Second, we discern no error in the hearing judge's
conclusion that the department complied with G. L. c. 90C, § 2,
the "no fix" statute, which generally requires a law enforcement
officer "to give a copy of the [traffic] citation to the
4 violator at the time and place of the violation." Id. Here,
the trooper testified that he gave a paper citation to El-Bayeh
during the traffic stop. Contrast Commonwealth v. Carapellucci,
429 Mass. 579, 581 (1999) (complaint dismissed pursuant to G. L.
c. 90C, § 2, where Commonwealth conceded that no copy of motor
vehicle citation was ever mailed or delivered to defendant). We
are not persuaded by El-Bayeh's argument that the best evidence
rule required a copy of the citation to be introduced into
evidence because the rules of evidence do not apply at hearings
on civil motor vehicle infractions.2 Rule VII(b)(1) of the Trial
Court Rules, Uniform Rules on Civil Motor Vehicle Infractions
(1986). Thus, the hearing judge did not err in denying El-
Bayeh's motion to dismiss.3
2 Even if the rules of evidence did apply at the de novo hearing, the best evidence rule was inapplicable because the purpose of the trooper's testimony on this issue was not to prove the contents of the citation; it was to prove that he gave the citation to El-Bayeh. See Commonwealth v. Balukonis, 357 Mass. 721, 725 (1970) ("The best evidence rule is applicable to only those situations where the contents of a writing are sought to be proved").
3 We also reject El-Bayeh's argument that Trial Court Rule VII(d)(2) required the de novo judge to review a copy of the citation to find probable cause.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-675
DEPARTMENT OF STATE POLICE
vs.
MIKHAEL H. EL-BAYEH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a de novo hearing, a judge of the District Court
found the defendant, Mikhael El-Bayeh, responsible for the civil
motor vehicle infraction of speeding, G. L. c. 90, § 17. El-
Bayeh appealed to the Appellate Division, which affirmed the
District Court judge's finding of responsibility. El-Bayeh now
appeals, arguing, among other things, that (1) the de novo
hearing judge (hearing judge) erred by denying El-Bayeh's motion
to dismiss the speeding citation and (2) the motion judge
(motion judge) erred by denying El-Bayeh's motion to permit
inspection of written documents and materials in possession of
the Department of State Police (department) that he argues were
essential to his defense. We reverse the decision and order of the Appellate Division and remand for entry of an order vacating
the District Court's finding of responsibility.
Background. 1. Procedural history. On August 4, 2021, a
State trooper issued El-Bayeh a citation for speeding, which El-
Bayeh appealed to a clerk-magistrate of the District Court. The
clerk-magistrate found El-Bayeh responsible for the infraction.
El-Bayeh then requested a de novo appeal to a judge of the
District Court.
Prior to the hearing, El-Bayeh moved for, among other
things, discovery. His motion was denied. We reserve for later
discussion the discovery El-Bayeh sought. Following the de novo
hearing, the hearing judge found El-Beyah responsible. El-Bayeh
then appealed to the Appellate Division, which affirmed the
finding of responsibility.
2. Statement of facts. We summarize the evidence
presented at the de novo hearing at which State Trooper Michael
Sierra testified and El-Bayeh, who represented himself,
presented his case. On August 4, 2021, at approximately 6:30
P.M., the trooper was parked in the ramp area connecting
Interstate Highway 95 and Route 3 in Burlington. It was
slightly raining and cloudy, and the "roadways were slightly
damp." The trooper heard an "engine sounded to be at full
throttle," and when he looked up, he saw a gray Subaru Forester
2 "flying past" him at the top of the ramp. The trooper visually
estimated that the vehicle was traveling fifty miles per hour
and accelerating, whereas other cars on the ramp were traveling
at roughly thirty miles per hour. As the Forester accelerated
past the trooper, he retrieved his light detection and ranging
(LIDAR)1 device. The trooper visually estimated that the
Forester was by then traveling at seventy-five miles per hour,
and the LIDAR device measured a speed of seventy-two miles per
hour. The vehicle was traveling in a zone with a posted speed
limit of fifty-five miles per hour. The trooper stopped the
vehicle, identified the operator as El-Bayeh, and issued a
citation.
During the hearing, El-Bayeh objected to the introduction
of LIDAR evidence, and he cross-examined the trooper about how
the trooper visually estimated the speed of El-Bayeh's vehicle.
During the trooper's testimony, El-Bayeh moved to dismiss on the
grounds that the citation was not entered into evidence. The
hearing judge denied the motion to dismiss, found El-Bayeh
responsible, and imposed a fine of $105. El-Bayeh appealed to
1 "'Lidar,' a portmanteau of 'light' and 'radar,' refers to '[a]n optical sensing technology used to determine the position, velocity, or other characteristics of distant objects by analysis of pulsed laser light reflected from their surfaces'" (citation omitted). Commonwealth v. Crowder, 495 Mass. 552, 554 n.3 (2025).
3 the Appellate Division, which affirmed the de novo judge's
Discussion. 1. Motion to dismiss. El-Bayeh asserts that
the hearing judge erred in denying his motion to dismiss because
the trooper did not introduce a copy of the traffic citation
into evidence and, therefore, the department did not show
probable cause that he was speeding, and the department did not
satisfy the "no-fix" law, G. L. c. 90C, § 2. We disagree.
First, because the trooper testified that he observed El-
Bayeh speeding, the trooper had probable cause to believe that
El-Bayeh committed a civil motor vehicle infraction. See
Commonwealth v. Lobo, 82 Mass. App. Ct. 803, 808-809 (2012)
(trooper's "immediate observation that none of [a vehicle's]
occupants was wearing a seat belt provided a basis to cite . . .
all the vehicle's occupants . . . for a seat belt law
violation"); Commonwealth v. Zimmermann, 70 Mass. App. Ct. 357,
359 (2007) (trooper's visual observations provided probable
cause that defendant was operating his motor vehicle at rate of
speed that was greater than reasonable or prudent).
Second, we discern no error in the hearing judge's
conclusion that the department complied with G. L. c. 90C, § 2,
the "no fix" statute, which generally requires a law enforcement
officer "to give a copy of the [traffic] citation to the
4 violator at the time and place of the violation." Id. Here,
the trooper testified that he gave a paper citation to El-Bayeh
during the traffic stop. Contrast Commonwealth v. Carapellucci,
429 Mass. 579, 581 (1999) (complaint dismissed pursuant to G. L.
c. 90C, § 2, where Commonwealth conceded that no copy of motor
vehicle citation was ever mailed or delivered to defendant). We
are not persuaded by El-Bayeh's argument that the best evidence
rule required a copy of the citation to be introduced into
evidence because the rules of evidence do not apply at hearings
on civil motor vehicle infractions.2 Rule VII(b)(1) of the Trial
Court Rules, Uniform Rules on Civil Motor Vehicle Infractions
(1986). Thus, the hearing judge did not err in denying El-
Bayeh's motion to dismiss.3
2 Even if the rules of evidence did apply at the de novo hearing, the best evidence rule was inapplicable because the purpose of the trooper's testimony on this issue was not to prove the contents of the citation; it was to prove that he gave the citation to El-Bayeh. See Commonwealth v. Balukonis, 357 Mass. 721, 725 (1970) ("The best evidence rule is applicable to only those situations where the contents of a writing are sought to be proved").
3 We also reject El-Bayeh's argument that Trial Court Rule VII(d)(2) required the de novo judge to review a copy of the citation to find probable cause. See rule VII(d)(2) of the Trial Court Rules, Uniform Rules on Civil Motor Vehicle Infractions ("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"). On its face, rule VII(d)(2) governs the transmission of materials to the Appellate Division and does not prescribe what evidence must be
5 2. Motion for discovery. Prior to the hearing on the de
novo appeal, El-Bayeh filed a motion "to permit inspection of
written documents, materials, and/or potentially exculpatory
evidence." El-Bayeh requested to inspect (1) the LIDAR unit
used by the trooper to measure the speed of El-Bayeh's vehicle;
(2) the LIDAR unit's storage area; (3) the user manual for the
LIDAR unit; and (4) the site where the LIDAR unit was last
tested by the trooper before issuing the speeding citation at
issue -- in this case, the trooper's backyard. The department
opposed the motion, arguing that El-Bayeh failed to establish
that the requested materials were relevant to demonstrate that
the LIDAR device was inaccurate or defective. Following a
hearing on El-Bayeh's motion, the motion judge denied the motion
"for the reasons set forth in the Department of State Police's
opposition."
El-Bayeh is correct that pursuant to G. L. c. 90C,
§ 3 (A) (4), fifth par., he is entitled to at least some
presented to a judge conducting a de novo hearing in the District Court. Though it would have been the better practice for the department to introduce a copy of the citation into the record, this administrative rule does not set an evidentiary requirement. The hearing judge could conclude from the trooper's testimony alone that there was probable cause to issue a speeding citation to El-Bayeh. See rule VII(b)(1) of the Trial Court Rules, Uniform Rules on Civil Motor Vehicle Infractions (at hearings on civil motor vehicle infractions, "[t]he evidence shall be given such weight as the judge or clerk-magistrate deems appropriate").
6 discovery, however, that determination is left to the motion
judge in the first instance. The statute provides that "[o]n a
showing of need in advance of [a civil motor vehicle infraction]
hearing, the magistrate or justice may direct that the violator
be permitted to inspect specific written documents or materials
in the possession of the police officer or agency concerned that
are essential to the violator's defense." G. L. c. 90C,
§ 3 (A) (4), fifth par. Fundamentally, while the rules of
evidence do not apply at hearings on civil motor vehicle
infractions, the judge or clerk-magistrate must preserve the
alleged violator's right to a fair hearing. See Commonwealth v.
Mongardi, 26 Mass. App. Ct. 5, 9 (1988) ("the procedure with
respect to civil motor vehicle infractions authorized by [G. L.]
c. 90C, §§ 1-3, . . . seeks to attain prompt compliance with
government regulations while preserving the right to a fair
hearing").4
Given that the department intended to -- and ultimately did
-- rely in part on LIDAR evidence to prove that El-Bayeh had
been speeding, written documents and materials relevant to the
reliability of the LIDAR unit were "essential" to his defense.
4 After Mongardi, the Legislature rewrote c. 90C, § 3, to expressly allow for discovery in advance of hearings on civil motor vehicle infractions. G. L. c. 90C, § 3, as amended through St. 1991, c. 138, § 161.
7 G. L. c. 90C, § 3 (A) (4), fifth par. El-Bayeh argued in his
motion that inspection of the LIDAR unit user manual could help
him cross-examine the trooper about whether the device was
properly stored and calibrated on the day of the incident.
Moreover, while the department did not object to this request it
did not provide the user manual. Similarly, records of the
calibration of the unit are essential to determine whether the
unit was properly calibrated. Where production of this
discovery could have assisted El-Bayeh in challenging the
admissibility of the LIDAR reading or in cross-examining the
trooper, and where such production would not have unduly
burdened the department, it was an abuse of discretion for the
motion judge not to allow this discovery.5
As for El-Bayeh's requests to inspect the LIDAR unit, the
storage area, and the testing site, those requests must be
evaluated in light of any written discovery that is ordered
consistent with this memorandum and order. In that context, the
motion judge will be better equipped to evaluate and balance the
parties' competing interests and whether such discovery is
5 While the trooper did bring the State police LIDAR guide with him to the hearing and the hearing judge offered to pause the hearing to allow El-Bayeh time to inspect it, he maintained his objection because this did not allow him to prepare before the hearing.
8 essential to El-Bayeh's defense. Here, El-Bayeh argued in his
motion that inspection of the LIDAR unit would allow him to
verify the existence and condition of the unit; inspection of
the storage area would allow him to confirm if the device was
properly stored according to the user manual; and inspection of
the testing site, which was at the trooper's home, would allow
El-Bayeh to examine if the site complied with the unit's pre-
operational testing requirements.6
Simply put, El-Bayeh must be provided sufficient discovery
to challenge the accuracy of the LIDAR unit.7 Commonwealth v.
Whynaught, 377 Mass. 14, 18 (1979) ("most courts have agreed
that the admission of radar evidence is conditioned on a
demonstration to the court of the accuracy of the radar
apparatus"). It also might be that after receiving the written
discovery, El-Bayeh may no longer need the additional discovery,
6 For example, the hearing judge should factor in that El- Bayeh has independently learned and confirmed the trooper's home address so the confidentiality of that information is no longer at issue.
7 Of course, if the department elects to proceed without the use of LIDAR evidence, this discovery will not be necessary. "[L]ike many lay witnesses who directly observe a motor vehicle while it is moving, a police officer is likely to be qualified to offer an estimate of the speed of that vehicle." Peterson v. Foley, 77 Mass. App. Ct. 348, 351 (2010). We express no opinion on the sufficiency of the non-LIDAR evidence to support a finding of responsibility.
9 or that his interests may be served by examining photographs of
the LIDAR unit, where it was stored, and where it was
calibrated.
Conclusion. Because the hearing judge may have relied upon
LIDAR evidence in finding El-Bayeh responsible,8 we are
constrained to reverse the decision and order of the Appellate
Division and remand to the Appellate Division for entry of an
order vacating the District Court's finding of responsibility.9
So ordered.
By the Court (Rubin, Henry & Wood, JJ.10),
Clerk
Entered: March 27, 2026.
8 Given our disposition, we need not reach the issue of whether the evidence obtained from the LIDAR device was admissible. We also decline to reach the issue because the evidence may differ at any hearing after remand.
9 El-Bayeh's request for a refund of his filing fees pursuant to G. L. c. 90C, § 3 (A) (4), first par., is denied. That provision allows a refund when the disposition on appeal results in a finding of not responsible, which has not occurred here.
10 The panelists are listed in order of seniority.