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-1444
COMMONWEALTH
vs.
AMBER IVY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In April 2013 the defendant was charged with operating a
motor vehicle while under the influence of alcohol (OUI) and
negligent operation of a motor vehicle, and the civil
infractions of speeding and marked lanes violation. In June
2014 the defendant admitted to sufficient facts to support a
guilty finding on the OUI charge and received a continuance
without a finding. The Commonwealth dismissed the remaining
charges as part of the plea offer.
In July 2023 the defendant filed a "motion to withdraw
guilty plea" on the ground of misconduct involving the State
Police Office of Alcohol Testing (OAT) and its use of the
Draeger Alcotest 9510 breathalyzer device. A judge of the District Court denied the motion, concluding that the defendant
failed to establish a reasonable probability that she would not
have admitted to sufficient facts had she known of OAT's
misconduct, and the defendant appeals. We affirm.
Background. Because of the age of the case, there is no
recording of the hearing at which the defendant tendered her
admission. The parties agreed, however, that the police report
and the breath test results provided the factual basis for the
admission. The following facts are summarized from the police
report.
On April 14, 2013, at approximately 2:15 A.M., Trooper
Christopher Meleo was on patrol on Route 195 in Fall River when
he saw a vehicle traveling in front of him with sparks coming
from the undercarriage. He noticed that a piece of the vehicle
was dragging on the road, making a loud grinding noise. The
vehicle, which was traveling in the right lane, crossed into the
middle lane numerous times and appeared to be speeding. Using
the speedometer in his cruiser, Trooper Meleo "clocked" the
vehicle for approximately one mile and determined that it was
traveling at eighty miles per hour, well over the posted limit
of fifty-five miles per hour. He then saw the vehicle cross
from the right lane into the middle and left lanes and over the
yellow line, before nearly colliding with the median barrier.
2 Trooper Meleo stopped the vehicle as soon as it was safe to
do so. As he approached, the driver, later identified as the
defendant, rolled down her window. Trooper Meleo immediately
smelled an odor of alcohol coming from the vehicle. The
defendant could not locate her driver's license, had bloodshot
and glassy eyes and slurred speech, and admitted to having one
drink. When Trooper Meleo asked her to recite the alphabet, the
defendant made it about halfway through before she "started to
mumble the letters inaudibly then started from the middle again
before stopping altogether." Upon administering the horizontal
gaze nystagmus test, Trooper Meleo noticed that the defendant
"displayed lack of smooth pursuit in both eyes."
Based on these observations, Trooper Meleo asked the
defendant to step out of the vehicle to perform additional field
sobriety tests. The defendant placed both hands on the door as
she got out and was unsteady on her feet as she walked to the
front of the vehicle. On the walk and turn test, which the
defendant attempted twice, she started before Trooper Meleo
completed the instructions, missed heel to toe numerous times,
and frequently stepped off the line. On the one leg stand test,
the defendant swayed as she stood in the starting position,
could not keep her foot off the ground for more than one to two
seconds, and tipped backwards and had to place a hand on her
vehicle to regain balance. Attempting the test a second time,
3 the defendant was able to hold her foot up for eight seconds
before stumbling backwards.
Forming the opinion that the defendant was under the
influence of alcohol, Trooper Meleo placed her under arrest. At
this point the defendant became belligerent and uncooperative.
She accused Trooper Meleo of being a "crooked cop," told him
that she was a "CNA,"1 and in a menacing tone said, "one day I
may get to take care of your mother." Once they arrived at the
State Police barracks, the defendant's demeanor fluctuated from
aggressive to tearful to normal. The defendant agreed to take a
breath test, which revealed a blood alcohol content of .14
percent.
Discussion. We review the judge's denial of the
defendant's motion for abuse of discretion or significant error
of law. See Commonwealth v. Hallinan, 491 Mass. 730, 744
(2023). Under Hallinan, supra at 748, the defendant was
entitled to a conclusive presumption of egregious government
misconduct because she "submitted to a breath test on an
Alcotest 9510 device last calibrated and certified prior to
April 18, 2019." The question is whether the defendant
"established a reasonable probability that she would not have
tendered her admission to sufficient facts if she had known that
1 We presume this to mean certified nursing assistant.
4 the breathalyzer results would be excluded." Id. at 750.
"Establishing such a reasonable probability requires examining
the totality of the circumstances" guided by several factors,
which include:
"(1) whether evidence of the government misconduct could have detracted from the factual basis used to support the guilty plea, (2) whether the evidence could have been used to impeach a witness whose credibility may have been outcome-determinative, (3) whether the evidence is cumulative of other evidence already in the defendant's possession, (4) whether the evidence would have influenced counsel's recommendation as to whether to accept a particular plea offer, and (5) whether the value of the evidence was outweighed by the benefits of entering into the plea agreement."
Id., quoting Commonwealth v. Scott, 467 Mass. 336, 355-356
(2014).
Applying these factors here, we discern no abuse of
discretion in the judge's denial of the defendant's motion. The
defendant was charged with OUI on alternative theories that she
drove while impaired or with a blood alcohol content of .08
percent or higher. The evidence of OAT's misconduct relating to
the Alcotest 9510 device would not have detracted from the
evidence of the defendant's impairment, which was substantial.
She drove at a high rate of speed while dragging a piece of her
vehicle on the ground, drifted in between lanes, and almost
collided with the median. She also failed several field
sobriety tests, admitted to drinking, and "exhibited classic
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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-1444
COMMONWEALTH
vs.
AMBER IVY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In April 2013 the defendant was charged with operating a
motor vehicle while under the influence of alcohol (OUI) and
negligent operation of a motor vehicle, and the civil
infractions of speeding and marked lanes violation. In June
2014 the defendant admitted to sufficient facts to support a
guilty finding on the OUI charge and received a continuance
without a finding. The Commonwealth dismissed the remaining
charges as part of the plea offer.
In July 2023 the defendant filed a "motion to withdraw
guilty plea" on the ground of misconduct involving the State
Police Office of Alcohol Testing (OAT) and its use of the
Draeger Alcotest 9510 breathalyzer device. A judge of the District Court denied the motion, concluding that the defendant
failed to establish a reasonable probability that she would not
have admitted to sufficient facts had she known of OAT's
misconduct, and the defendant appeals. We affirm.
Background. Because of the age of the case, there is no
recording of the hearing at which the defendant tendered her
admission. The parties agreed, however, that the police report
and the breath test results provided the factual basis for the
admission. The following facts are summarized from the police
report.
On April 14, 2013, at approximately 2:15 A.M., Trooper
Christopher Meleo was on patrol on Route 195 in Fall River when
he saw a vehicle traveling in front of him with sparks coming
from the undercarriage. He noticed that a piece of the vehicle
was dragging on the road, making a loud grinding noise. The
vehicle, which was traveling in the right lane, crossed into the
middle lane numerous times and appeared to be speeding. Using
the speedometer in his cruiser, Trooper Meleo "clocked" the
vehicle for approximately one mile and determined that it was
traveling at eighty miles per hour, well over the posted limit
of fifty-five miles per hour. He then saw the vehicle cross
from the right lane into the middle and left lanes and over the
yellow line, before nearly colliding with the median barrier.
2 Trooper Meleo stopped the vehicle as soon as it was safe to
do so. As he approached, the driver, later identified as the
defendant, rolled down her window. Trooper Meleo immediately
smelled an odor of alcohol coming from the vehicle. The
defendant could not locate her driver's license, had bloodshot
and glassy eyes and slurred speech, and admitted to having one
drink. When Trooper Meleo asked her to recite the alphabet, the
defendant made it about halfway through before she "started to
mumble the letters inaudibly then started from the middle again
before stopping altogether." Upon administering the horizontal
gaze nystagmus test, Trooper Meleo noticed that the defendant
"displayed lack of smooth pursuit in both eyes."
Based on these observations, Trooper Meleo asked the
defendant to step out of the vehicle to perform additional field
sobriety tests. The defendant placed both hands on the door as
she got out and was unsteady on her feet as she walked to the
front of the vehicle. On the walk and turn test, which the
defendant attempted twice, she started before Trooper Meleo
completed the instructions, missed heel to toe numerous times,
and frequently stepped off the line. On the one leg stand test,
the defendant swayed as she stood in the starting position,
could not keep her foot off the ground for more than one to two
seconds, and tipped backwards and had to place a hand on her
vehicle to regain balance. Attempting the test a second time,
3 the defendant was able to hold her foot up for eight seconds
before stumbling backwards.
Forming the opinion that the defendant was under the
influence of alcohol, Trooper Meleo placed her under arrest. At
this point the defendant became belligerent and uncooperative.
She accused Trooper Meleo of being a "crooked cop," told him
that she was a "CNA,"1 and in a menacing tone said, "one day I
may get to take care of your mother." Once they arrived at the
State Police barracks, the defendant's demeanor fluctuated from
aggressive to tearful to normal. The defendant agreed to take a
breath test, which revealed a blood alcohol content of .14
percent.
Discussion. We review the judge's denial of the
defendant's motion for abuse of discretion or significant error
of law. See Commonwealth v. Hallinan, 491 Mass. 730, 744
(2023). Under Hallinan, supra at 748, the defendant was
entitled to a conclusive presumption of egregious government
misconduct because she "submitted to a breath test on an
Alcotest 9510 device last calibrated and certified prior to
April 18, 2019." The question is whether the defendant
"established a reasonable probability that she would not have
tendered her admission to sufficient facts if she had known that
1 We presume this to mean certified nursing assistant.
4 the breathalyzer results would be excluded." Id. at 750.
"Establishing such a reasonable probability requires examining
the totality of the circumstances" guided by several factors,
which include:
"(1) whether evidence of the government misconduct could have detracted from the factual basis used to support the guilty plea, (2) whether the evidence could have been used to impeach a witness whose credibility may have been outcome-determinative, (3) whether the evidence is cumulative of other evidence already in the defendant's possession, (4) whether the evidence would have influenced counsel's recommendation as to whether to accept a particular plea offer, and (5) whether the value of the evidence was outweighed by the benefits of entering into the plea agreement."
Id., quoting Commonwealth v. Scott, 467 Mass. 336, 355-356
(2014).
Applying these factors here, we discern no abuse of
discretion in the judge's denial of the defendant's motion. The
defendant was charged with OUI on alternative theories that she
drove while impaired or with a blood alcohol content of .08
percent or higher. The evidence of OAT's misconduct relating to
the Alcotest 9510 device would not have detracted from the
evidence of the defendant's impairment, which was substantial.
She drove at a high rate of speed while dragging a piece of her
vehicle on the ground, drifted in between lanes, and almost
collided with the median. She also failed several field
sobriety tests, admitted to drinking, and "exhibited classic
symptoms of alcohol intoxication," such as odor of alcohol,
5 bloodshot and glassy eyes, slurred speech, belligerent demeanor,
and unsteadiness on her feet. Commonwealth v. Gallagher, 91
Mass. App. Ct. 385, 392 (2017). Moreover, as the judge
observed, Trooper Meleo's interaction with the defendant was far
more extensive than the "fairly brief interaction" in Hallinan,
491 Mass. at 750, and the evidence of OAT's misconduct would not
have impeached his credibility as to his observations of the
defendant's appearance and demeanor.
In addition, unlike in Hallinan, 491 Mass. at 751, the
defendant's motion was not supported by an averment from plea
counsel that, had she known of OAT's misconduct, she would have
advised the defendant to go to trial. Plea counsel's affidavit
stops short of this, stating only that "[i]f the breathalyzer
results were excluded, . . . [she] would have considered trying
the case." And further unlike in Hallinan, supra, the defendant
received a substantial benefit from accepting the plea offer.
Not only did she receive a favorable disposition of a
continuance without a finding on the OUI charge, the
Commonwealth dismissed the remaining charges, including the
charge of negligent operation, which carried a potential
punishment of up to two years' imprisonment and an additional
sixty-day suspension of the defendant's driver's license. See
G. L. c. 90, § 24 (2) (a).
6 In light of all of these factors, the judge properly
determined that the defendant failed to demonstrate a reasonable
probability that she would have gone to trial had she known that
the breath test results would be excluded. Accordingly, the
judge did not abuse his discretion in denying the defendant's
motion.
Order denying motion to withdraw guilty plea affirmed.
By the Court (Shin, Grant & Smyth, JJ.2),
Clerk
Entered: September 19, 2024.
2 The panelists are listed in order of seniority.