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March 27, 2026 Get Citation Alerts Download PDF Add Note

Department of State Police v. Mikhael H. El-Bayeh.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 23-P-0675

• Precedential Status: Non-Precedential

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (609)

• PDF

Combined Opinion

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.

1. 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

finding of responsibility.

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.

10