Commonwealth v. Hallinan

• Court: Massachusetts Supreme Judicial Court
• Decided: April 26, 2023
• Docket: SJC 13301
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

SJC-13301

COMMONWEALTH vs. LINDSEY A. HALLINAN.

Essex. December 7, 2022. - April 26, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

Motor Vehicle, Operating under the influence. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Admission to sufficient facts to warrant finding, Sentence. Evidence, Breathalyzer test, Scientific test. Constitutional Law, Conduct of government agents.

Complaint received and sworn to in the Salem Division of the District Court Department on October 9, 2013.

A motion to withdraw an admission to sufficient facts, filed on July 6, 2021, was heard by Robert A. Brennan, J.

The Supreme Judicial Court granted an application for direct appellate review.

Murat Erkan (Joseph D. Bernard also present) for the defendant. David F. O'Sullivan, Assistant District Attorney, for the Commonwealth. Ira L. Gant, Nathan Tamulis, Patricia Muse, & Ben Leatherman, Committee for Public Counsel Services, & Joshua M. Daniels, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. 2

Amy Spector, Assistant Attorney General, for Registry of Motor Vehicles, amicus curiae, submitted a brief.

GAZIANO, J. In this case we are asked to exercise our

extraordinary superintendence powers under G. L. c. 211, § 3, in

light of government misconduct involving the State police office

of alcohol testing (OAT) and its use of the Draeger

Alcotest 9510 breathalyzer device. In November 2013, the

defendant, Lindsay A. Hallinan, admitted to facts sufficient to

support a finding of guilty to operating a motor vehicle while

under the influence of intoxicating liquor (OUI), second

offense, after her attorney advised that her case was unwinnable

due to an Alcotest 9510 breath test result showing a blood

alcohol content (BAC) of 0.23 percent. The matter was continued

without a finding for two years, the defendant was placed on

probation with conditions for alcohol treatment and random

testing, and her driver's license was suspended for two years.

The defendant subsequently moved to withdraw her admission to

sufficient facts. The motion was denied because she was unable

to show a nexus between the allegations of governmental

misconduct involving the Alcotest 9510 device and her own case;

she was not a member of the consolidated class of defendants who

were challenging the reliability of the Alcotest 9510 device,

nor did she request discovery in her own case. The defendant 3

appealed, and we granted her application for direct appellate

review.

The extensive nature of OAT's misconduct, and the inability

of the defendants in the consolidated cases challenging the

reliability of the Alcotest 9510 device, see Commonwealth vs.

Ananias, Dist. Ct., No. 1248CR1075 (Ananias litigation), to

receive a fair Daubert-Lanigan hearing, see Daubert v. Merrell

Dow Pharms., Inc., 509 U.S. 579 (1993); Commonwealth v. Lanigan,

419 Mass. 15, 25-26 (1994), have resulted in the violation of

the right to due process for approximately 27,000 defendants.

Accordingly, defendants who pleaded guilty or who were convicted

after trial, and the evidence against whom included breath test

results from the Alcotest 9510 device from June 1, 2011, through

April 18, 2019, are entitled to a conclusive presumption of

egregious government misconduct. They may proceed in motions to

withdraw their guilty pleas, and motions for new trials, without

having to establish egregious government misconduct in each

case, see Commonwealth v. Scott, 467 Mass. 336, 346 (2014);

Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006), and

their breath test results are excluded from use at any

subsequent trial. 4

Accordingly, in this case, the judge erred in denying the

defendant's motion to withdraw her admission to sufficient

facts,1 and her motion should have been allowed.2

1. Background. On the evening of October 5, 2013, police

were operating a sobriety checkpoint on Route 1A in Beverly.

State police Trooper Thomas Canning, who was greeting drivers at

the checkpoint, observed that "[the defendant's] eyes were red

and glassy, he could smell the odor of an intoxicating liquor

coming from the vehicle, and her speech was slurred." Canning

directed the defendant to a parking lot for further evaluation

by State police Trooper Carolyn Mansi. Mansi observed that the

defendant "seemed dazed," did not appear to notice the trooper,

and admitted to consuming three drinks at a local sports bar.

At Mansi's request, the defendant performed a series of field

sobriety tests; she was unable to complete any of them

successfully. The defendant then consented to a breath test,

which was administered using a Draeger Alcotest 9510

1 Because an admission to sufficient facts to warrant a finding of guilty "exposes a defendant to some of the same collateral consequences as a guilty plea, we treat the admission the same as a guilty plea" for purposes of this discussion, and in this opinion we refer to the two interchangeably. See Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298, 319 n.18 (2016).

2 We acknowledge the amicus brief submitted by the Committee for Public Counsel Services and Massachusetts Association of Criminal Defense Lawyers and the amicus letter submitted by the Registry of Motor Vehicles. 5

breathalyzer. The result of the test was a 0.23 percent BAC,

well above the legal limit of .08 percent. See G. L. c. 90,

§ 24 (1) (a) (1).

In November 2013, the defendant admitted to sufficient

facts on a single count of OUI, second offense.3 The judge

ordered that the matter be continued without a finding for two

years, on conditions that the defendant enroll in the fourteen-

day second offender program, abstain from alcohol for six

months, submit to an evaluation pursuant to G. L. c. 90, § 24Q,

attend Alcoholics Anonymous (AA) meetings at least once a week,

and submit to random alcohol testing. The judge also imposed a

two-year loss of her driver's license. See G. L. c. 90,

§ 24 (1) (c) (2).

The defendant subsequently moved to withdraw her plea on

the ground that her admission to sufficient facts was not

knowing and voluntary, because of issues with the Alcotest 9510

device and the government misconduct that came to light in the

Ananias litigation. See Commonwealth vs. Ananias, Dist. Ct.,

No. 1248CR1075 (Feb. 16, 2017) (Ananias I); Commonwealth vs.

Ananias, Dist. Ct. No. 1248CR1075 (Jan. 9, 2019) (Ananias II).

In support of her motion, the defendant submitted an affidavit

averring that her decision to resolve the case largely was due

3 The defendant had been convicted of OUI in New York in 2006. 6

to her attorney's advice, based on his assessment that the

breath test results made the case unwinnable. After a

nonevidentiary hearing, the same judge who presided over the

Ananias litigation denied the defendant's motion. The defendant

appealed to the Appeals Court, and we thereafter allowed her

petition for direct appellate review.

2. Discussion. Before us, the defendant seeks to withdraw

her guilty plea as a result of newly discovered evidence -- the

findings after multiple evidentiary hearings in the Ananias

litigation -- concerning State police management and handling of

the Alcotest 9510 device that was used to test her blood alcohol

level after the stop; this new evidence suggests egregious

misconduct by OAT. In light of this newly discovered evidence,

the defendant argues that her admission to sufficient facts was

induced involuntarily by OAT's misconduct. See G. L. c. 90,

Before turning to the defendant's arguments, some

background understanding of OAT's purpose, structure, and

organization is necessary.4

4 The facts concerning the structure and operation of OAT, set forth in the judge's decision on the defendant's motion to withdraw, are based on his findings in two memoranda of decision in the Ananias litigation as well as the joint stipulations of facts in that case, and the proceedings at the hearing on the defendant's motion to withdraw. After remand by this court in Commonwealth v. Camblin, 471 Mass. 639, 640 (2015), for 7

a. Structure and regulation of OAT. The State police

crime laboratory (crime lab) is a forensic sciences organization

that provides scientific analysis and testimony in support of

police departments and prosecutors' offices across the

Commonwealth. OAT, which oversees the breath testing program

for the Commonwealth, is a unit within the crime lab. At the

time of the events underlying this litigation, OAT had one

supervising scientist, Melissa O'Meara, who supervised three

other scientists.

To convict a defendant of OUI, the Commonwealth must prove

that (1) the defendant operated a motor vehicle, (2) on a public

way or place to which the public had a right of access, and

(3) while under the influence of alcohol. See Commonwealth v.

Zeininger, 459 Mass. 775, 778, cert. denied, 565 U.S. 967

(2011); Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995);

G. L. c. 90, § 24 (1) (a) (1). To establish OUI, the

Commonwealth may proceed on a theory of impairment (impaired

ability to operate) or on a theory of a per se violation

(operating with a BAC of 0.08 percent or greater). See

Commonwealth v. Hebb, 477 Mass. 409, 412 (2017); Zeininger,

evidentiary hearings and fact finding, this judge was appointed to preside over the consolidated Ananias litigation. The judge's findings in the Ananias litigation, following extensive evidentiary hearings involving approximately 600 defendants, are set forth in full in Ananias I and Ananias II. 8

supra; Commonwealth v. Rumery, 78 Mass. App. Ct. 685, 686

(2011).

OAT scientists assist prosecutors when they are proceeding

against defendants on the theory of a per se violation. The

scientists provide a report setting forth the results of a

chemical test of an individual's BAC; although this measurement

can be obtained through a breathalyzer test or through a blood

test, see G. L. c. 90, § 24 (1) (e), in practice, the

breathalyzer test is the most commonly used one. General Laws

c. 90, § 24K, provides that, for a breath test to be considered

valid, it must have been performed by a "certified operator,"

using a certified "infrared breath-testing device." The statute

also mandates that the Secretary of Public Safety (secretary)

"promulgate rules and regulations regarding satisfactory

methods, techniques and criteria for the conduct of such tests,

and shall establish a Statewide training and certification

program for all operators of such devices and a periodic

certification for such breath testing devices." See G. L.

c. 90, § 24K.

In accordance with this mandate, the Executive Office of

Public Safety and Security (EOPSS) has promulgated regulations

directing that OAT perform annual certifications of all breath

testing instruments used in the Commonwealth. See 501 Code

Mass. Regs. § 2.06 (2016). These regulations also provide that 9

OAT is responsible for establishing and maintaining a list of

approved breath test devices; certifying the functionality of

all breath testing equipment used in the Commonwealth on an

annual basis; approving and distributing all calibration

standards used with breath test instruments; establishing

standards for training and certification for breath testing; and

creating and maintaining a breath test operator's manual. See

501 Code Mass. Regs. §§ 2.04-2.05 (2016).

In accordance with these regulations, OAT creates and

maintains records of the authorization and testing process used

in readying breath test instruments for use in the Commonwealth.

OAT first formally adopted a written certification protocol for

testing and calibrating its instruments in September 2014, under

the direction of O'Meara.5 Before the establishment of this

protocol, OAT had had no formal, written policies to standardize

testing and calibration procedures to be followed by its

scientists. Instead, in performing specific tasks related to

the proper functioning and certification of the breath test

instruments, OAT scientists had employed a variety of

"certification worksheets" with checkboxes. These worksheets

5 Melissa O'Meara became the supervising scientist at OAT in June 2011. In that role, she was responsible for the day-to-day operation of the State police crime laboratory (crime lab), as well as for establishing policies and procedures for breath test administration and training in accordance with the promulgated regulations. 10

consisted of a list of steps to be completed and acknowledged to

certify that an instrument was functioning properly.

Before September 2014, if an instrument did not perform

adequately on the first certification attempt, it was OAT's

practice to set aside the instrument, place the partially

completed worksheet6 in the instrument's assigned folder, and

conduct a second attempt at certification after a period of

rest. If the second attempt also failed, the instrument would

be sent to the manufacturer for repairs. Eventually, this

process also was guided by the State police quality assurance

manual, which contained procedures, instructions, and

requirements for calibration and certification of all crime lab

equipment, including the Alcotest 9510 breathalyzer.

OAT maintained records detailing when machines had to be

sent to the manufacturer for repair, so that it could keep track

of when the repaired machine was returned; occasionally, a

description of the work that had been completed by the

manufacturer was indicated. Thus, two types of repair records -

- internal documentation by OAT and the manufacturer's

documentation delineating the repairs -- were stored at OAT. In

2011, when the Alcotest 9510 device was introduced for use in

the Commonwealth, OAT generated authorization reports, which

6 These incomplete worksheets were known as "failed worksheets." 11

indicated that the particular instrument was authorized for use.

Those reports generally were maintained in the folder for the

corresponding instrument.

b. OAT's discovery practices. At all times relevant here,

OAT frequently received discovery requests from both prosecutors

and defense attorneys.7 Prosecutors seeking test results for use

at trial obtained records from OAT by filling out a request

form. This form, created by OAT, contained four check boxes to

indicate the information the prosecutor was seeking; there was

no area for the individual to request additional types of

documents.8

It was OAT's practice to supply only documents specifically

requested on this form. If a prosecutor requested documents

7 The crime lab maintains a written policy, first promulgated on July 24, 2015, regarding discovery requests. At all times relevant here, the policy indicated that all requests, whether through court orders, public records requests, or from prosecutors' offices, were to be received, reviewed, and fulfilled by the crime lab's case management unit (CMU). The CMU employed five full-time staff members who provided comprehensive records relating to firearms, deoxyribonucleic acid, trace evidence, and other laboratory functions. The one exception to the policy was that OAT handled its own discovery responses, without any assistance from the CMU.

8 The possible categories of documents that could be requested were the "90-24 Record" (breath test data for defendant); "Periodic Test Record" (test data from standard calibration tests initiated prior to defendant's breath test); "Calibration and Verification Records" (OAT testing data); and "Certification Summary" (containing OAT certification, expiration date, and certifying chemist). 12

that fell outside one of the categories indicated on the form,

OAT would require the prosecutor to obtain a court order before

responsive documents were produced. Efforts to respond to these

more complex requests were coordinated by O'Meara. It was not

OAT's practice to request input from the crime lab's legal

counsel when responding to discovery requests.

Once OAT collected what it deemed to be responsive

documents, it would mail the package to the appropriate court

clerk. The documents sent typically included records relating

to the certification and periodic testing of a particular

breathalyzer machine, along with a supporting affidavit by the

keeper of records. This affidavit obviated the need for OAT

personnel to appear to testify in OUI trials; instead, the

records and affidavits were introduced at trial without

scientific testimony.9 See Zeininger, 459 Mass. at 786 ("OAT

certification records are outside the orbit of the 'common

nucleus' of the various definitions of 'testimonial' set forth

in Crawford[ v. Washington, 541 U.S. 36,] 51-52 [2004]").

9 OAT employees, however, routinely appeared as witnesses in specific, more complex cases involving issues of blood serum analysis and retrograde extrapolation (a mathematical calculation used to estimate a person's BAC at a particular point in time by working backward from the time the BAC was tested and factoring in rates of absorption and excretion). See, e.g., Commonwealth v. Colturi, 448 Mass. 809, 811 (2007); Commonwealth v. Douglas, 75 Mass. App. Ct. 643, 646 (2009). These cases are rare and represent only a small fraction of prosecutions involving breath testing. 13

c. Prior litigation on admissibility of breath test

results. The defendant's challenge here is based on extensive

proceedings in earlier litigation in other, related cases,

including the Ananias litigation. To evaluate her arguments,

familiarity with some of those proceedings is necessary.

Until June 2015, breath test results had been admissible by

statute, and in practice were admitted without question, in the

prosecution of OUI cases. See Zeininger, 459 Mass. at 786-787.

General Laws c. 90, § 24 (1) (e), provides that, in any OUI

prosecution,

"evidence of the percentage, by weight, of alcohol in the defendant's blood at the time of the alleged offense, as shown by . . . a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor."

In 2013, a group of defendants involved in then-pending OUI

prosecutions sought to exclude breath test evidence derived from

a different breathalyzer, the Alcotest 7110 MK III-C, made by

the same manufacturer as the Alcotest 9510 device, on the ground

that the source code used in the device's computer programs, in

conjunction with other deficiencies, rendered its results

unreliable. See Commonwealth v. Camblin, 471 Mass. 639, 640

(2015). We concluded that the defendants were entitled to seek

a Daubert-Lanigan hearing to challenge the reliability of the

newest breathalyzer technology, because "breath test evidence, 14

at its core, is scientific evidence," id., and "where 'evidence

produced by a scientific theory or process' is at issue, the

judge plays an important gatekeeper role to evaluate and decide

on its reliability as a threshold matter of admissibility." Id.

at 648, citing Lanigan, 419 Mass. at 25-26.

i. First Ananias decision. After the Camblin matter was

remanded to the District Court for such a hearing, the Chief

Justice of that court issued an order of special assignment

consolidating 535 cases in which defendants who had been charged

with OUI similarly had challenged the scientific reliability of

the Alcotest 9510,10 the device that had been in use throughout

the Commonwealth at that time. In November 2015, the Chief

Justice of the Boston Municipal Court likewise consolidated

sixty-four cases raising the same issue. Thousands of other OUI

cases were stayed pending the outcome of that consolidated

litigation. The parties then sought review in the county court

to challenge the orders of consolidation and a number of rulings

on discovery issues.

In June 2016, a single justice ordered that both sets of

consolidated cases be consolidated. The Chief Justice of the

10As stated, the Camblin defendants challenged the technology used in the Alcotest 7110 MK III-C breathalyzer. See Camblin, 471 Mass. at 640. In Ananias I, the court expanded the scope of the reliability challenge permitted in Camblin to include the newest device, the Alcotest 9510, which began replacing the Alcotest 7110 in June 2011. See Ananias I, supra. 15

Trial Court then assigned the consolidated case to a specific

District Court judge pursuant to G. L. c. 211B, § 9. In

preparation for Daubert-Lanigan hearings in their individual

cases, many of the defendants had filed discovery motions. In

response, multiple judges had ordered OAT to produce

documentation. The newly assigned judge issued a comprehensive

discovery order requiring the Commonwealth to produce, among

other items, "[d]ocumentation of the [instrument] certification

process, which provides instructions to the OAT employee

performing the certification," as well as all certification

worksheets for Alcotest 9510 devices since 2011.

The crime lab's attorney conveyed the substance of the

court's order to O'Meara, who coordinated the production of

responsive documents. The attorney did not participate in the

actual review, collection, or production of the documents.

Ultimately, OAT produced a digital versatile disc (DVD)

containing more than 2,000 certification worksheets and a few

failed, incomplete worksheets. The crime lab attorney submitted

the DVD to the court and represented that it contained "all of

the worksheets for certification[,] as the [court] ordered all

be turned over." Unbeknownst to the prosecutors and defense

attorneys, at that time, OAT had not produced all of the

certification worksheets that had been ordered. 16

A Daubert-Lanigan hearing commenced on January 18, 2017.

Over ten days, the judge heard expert testimony concerning the

reliability of the Alcotest 9510 device. On February 16, 2017,

in Ananias I, the judge denied in part, and allowed in part, the

defendants' motions to exclude their breath test results. The

judge found that, despite its ability to produce scientifically

reliable results, the annual certification methodology used by

OAT to certify the Alcotest 9510 device, from its initial

deployment in June 2011, through September 2014, "did not

produce scientifically reliable BAC results," because of the

absence of written protocols to be used in calibrating and

certifying the operation of the device. More specifically, the

judge found that the procedures used in preparing the devices

for deployment in the field were shared only informally through

"word of mouth around the lab." Consequently, the judge

concluded, OAT's methodology produced presumptively unreliable

breath test results from June 2011,11 through September 15, 2014.

Notwithstanding this finding, the Commonwealth was

permitted to demonstrate, on a case-by-case basis, that a

11Ananias I originally stated that the Alcotest 9510 device was first used in June 2012, and therefore, the presumption for tests began in June 2012. A subsequent order was issued to correct the findings of fact to reflect that the Alcotest 9510 device was in use beginning in June 2011. The parties have agreed that, consistent with the court's reasoning, the presumption applies to tests performed starting in June 2011. 17

particular Alcotest 9510 device had been calibrated and

certified using scientifically reliable methodology and, thus,

that a particular BAC result was scientifically reliable.

Results obtained after the promulgation of written protocols by

OAT on September 15, 2014, were determined to be presumptively

reliable and admissible in criminal prosecutions. Accordingly,

the defendants' motion to exclude results obtained using the

Alcotest 9510 from devices that had been calibrated and

certified after September 15, 2014, was denied, but the

defendants' motion with respect to results produced by any

Alcotest 9510 device that had been calibrated and certified

between June 1, 2011, and September 14, 2014, was allowed.

ii. Second Ananias decision. Following Ananias I,

District Court and Boston Municipal Court judges conducted

numerous hearings on motions in limine where the Commonwealth

sought to admit BAC results obtained using Alcotest 9510 devices

that had been calibrated and certified between June 1, 2011, and

September 14, 2014, despite the finding of presumptive

unreliability. At these hearings, prosecutors began to call OAT

scientists as witnesses in OUI cases that involved results from

these machines. On August 2, 2017, during a hearing in the

District Court on one such case, where an OAT employee had

testified, the judge determined that OAT had failed to disclose

exculpatory "failed certification" worksheets demonstrating that 18

the particular Alcotest 9510 device at issue had failed certain

certification tests. Contemporaneously, the Ananias litigation

defendants received a response to a Freedom of Information Act

request; the response contained a significantly larger number of

the same type of documents that were ordered to be produced in

the Ananias litigation prior to the Ananias I decision,

indicating that OAT had failed to produce hundreds of similar

failed worksheets that were considered to be exculpatory.

On August 19, 2017, the Ananias litigation defendants filed

a motion to compel and to impose sanctions. The Commonwealth

responded that OAT personnel had not made the Commonwealth aware

of these documents, despite prosecutors' best efforts to obtain

all required discovery. On August 31, 2017, the secretary

directed EOPSS, the administrative body that oversees OAT, to

investigate OAT's discovery practices.

iii. EOPSS report. In an extensive report following a

six-week investigation, EOPSS identified a history of

intentional withholding of exculpatory evidence by OAT, blatant

disregard of court orders, and other misconduct, all underscored

by "a longstanding and insular institutional culture that was

reflexively guarded." The discovery practices that led to the

withholding of exculpatory evidence predated the Ananias

litigation. 19

In one example, the EOPSS report described a case decided

prior to the Ananias litigation, in which OAT failed to produce

any of its internal repair records. A District Court judge

allowed a discovery motion that requested "[a]ny and all

maintenance records including but not limited to calibration,

repairs and certification of the breath testing device

concerning the test administered to the . . . [d]efendant." As

stated, it was OAT policy to produce only the manufacturer's

repair records, which included the invoice, the manufacturer's

repair authorization form, and, occasionally, a description of

the repair that had been completed. Relying on this policy, OAT

did not produce its internally generated repair records, in

violation of the discovery order.

In March 2013, in another case preceding the Ananias

litigation, a District Court judge allowed a discovery motion

that requested "[a]ll information, data and documents that

contain information about testing and repair of the breath test

device utilized by the . . . [p]olice [d]epartment to test the

defendant." OAT did not produce the authorization report

relating to the device that had been used, even though the

record was present in the file for that device.

The EOPPS investigation found that the failure to disclose

documents, specifically in the context of the Ananias

litigation, arose from a lack of communication between OAT and 20

the assistant district attorneys who were assigned to the

Ananias litigation. The prosecutors were unfamiliar with

general OAT discovery policies and, in particular, were unaware

that it was OAT policy not to produce failed worksheets when an

instrument failed certification. Indeed, the EOPPS report

highlighted that OAT scientists responding to discovery requests

were instructed not to provide failed worksheets. If a

scientist included such a worksheet in the discovery package,

O'Meara would insist that the failed worksheet be removed,

because she considered it to be nonresponsive.12 These failures

left prosecutors in the Ananias I litigation representing to the

judge, and to defense counsel, that the Commonwealth had

complied with its discovery obligations, when in fact it had

not. Accordingly, the prosecutors were unable adequately to

carry out their obligation to identify and produce exculpatory

evidence.

As a result of the EOPSS investigation, in October 2017,

the secretary directed the State police to undertake a number of

When O'Meara was interviewed in conjunction with the 12

EOPSS investigation, she explained that she considered failed certification worksheets to be "data not reported" and, therefore, under OAT policy, not subject to discovery. She also commented that, in her view, because no motorist had been subjected to breath testing with an instrument that was put in the field without having been calibrated successfully, the failed calibration attempts had no probative value, and thus appropriately were excluded from consideration in the certification analysis. 21

remedial measures. The State police were required to expand the

responsibilities of the case management unit (CMU), which

followed established protocols that specifically delineated how

to respond to discovery requests, to include OAT. The secretary

also required OAT to eliminate its long-standing policy of

requiring court orders before complying with "nonstandard"

discovery requests and, instead, instructed OAT to comply with

all discovery requests from prosecutors' offices. OAT also was

required to enhance and expand its then newly released

electronic discovery (eDiscovery) portal, to obtain

accreditation by the ANSI-ASQ13 National Accreditation Board

(ANAB) within twelve months, and to conduct enhanced training

for OAT employees, focusing on the identification of, and their

duties regarding, exculpatory information.

iv. Joint stipulation. Over the course of the next year,

prosecutors turned over tens of thousands of documents that had

not previously been provided to the consolidated defendants. On

August 14, 2018, following extensive negotiations, the parties

submitted a joint stipulation and a recommended resolution to

the defendants' motion for sanctions. The stipulation included

factual findings from the EOPSS report.

13American National Standards Institute – American Society for Quality. 22

Among other things, the parties stipulated that (1) in

Ananias I, the judge had ordered OAT to produce copies of all of

the annual certification and calibration worksheets used to

conduct the annual calibration of the Alcotest 9510 devices;

(2) OAT produced 1,976 worksheets and represented that these

were all the worksheets the judge had ordered produced; (3) of

the 1,976 worksheets, only eleven were incomplete worksheets

indicating a failed calibration; (4) OAT intentionally withheld

an additional 432 worksheets that reported failures in the

annual calibration process; (5) OAT did not inform the

prosecutors, the defense attorneys, or the judge that it was

withholding the 432 worksheets; and (6) the withheld failed

worksheets were exculpatory.

The parties also agreed on specific remedial measures. OAT

committed to applying for national accreditation with ANAB and

to expanding its existing eDiscovery portal to provide all users

equal access to breathalyzer-related records and documents. In

addition, the parties agreed that the period for which

Alcotest 9510 test results were deemed to be presumptively

excluded would be enlarged through a date to be set by the

judge; the Commonwealth would not seek to establish the

reliability of OAT's calibration and certification on a case-by- 23

case basis in cases pending trial;14 and the Commonwealth would

pay for notices to be sent to the approximately 27,000

defendants who had received an adverse disposition in a case in

which the defendant submitted to an Alcotest 9510 test between

June 1, 2011, and August 31, 2017. The joint stipulation of

facts and the recommended resolution were submitted to the judge

for approval.

After a three-day hearing, in January 2019, the judge

accepted the joint stipulation of facts and the recommended

resolution, made additional findings of fact, and issued a

decision on the date that the presumptive exclusion of

Alcotest 9510 test results would terminate. Ananias II, supra.

The judge found that OAT's misconduct resulted in a deprivation

of the consolidated defendants' due process rights because they

had been unable to obtain a full, fair, and complete Daubert-

Lanigan hearing. The judge concluded that EOPSS's findings

regarding OAT's approach to producing exculpatory information

had had a devastating impact on public trust and confidence in

the fairness of the criminal justice system and the integrity of

the process.

14The parties agreed that the Commonwealth could seek to do so on a case-by-case basis for cases involving motor vehicle homicide by OUI, G. L. c. 90, § 24G; OUI causing serious bodily injury, G. L. c. 90, § 24L; manslaughter by motor vehicle, G. L. c. 265, § 13 1/2; and OUI as a fifth or greater offense, G. L. c. 90, § 24 (1) (a) (1). 24

As a result of OAT's misconduct, the judge fashioned a

remedy to restore confidence that OAT's methodology produces

scientifically reliable breathalyzer results, and that OAT is

fully disclosing those instances where, for a variety of

reasons, it is unable to certify the reliability of a

breathalyzer result. The judge ordered that the period of

presumptive exclusion of Alcotest 9510 test results be extended

until the Commonwealth could demonstrate compliance with seven

remedial measures.

The remedial measures required the Commonwealth to show

that OAT not only had filed an application for accreditation

with ANAB, but also that the application was substantially

likely to succeed. In addition, the application and the ANAB

accreditation requirements manual had to be uploaded to the

eDiscovery portal so that it publicly was accessible. The

Commonwealth also had to demonstrate that OAT had promulgated

discovery protocols consistent with those employed by the CMU,

including policies defining exculpatory evidence and an

explanation of OAT's obligations with respect to such evidence;

in the alternative, the Commonwealth had to show that the CMU

would be responsible for processing OAT's discovery requests.

OAT's discovery protocol had to be made accessible publicly on

the eDiscovery portal. Further, the Commonwealth had to show

that all OAT employees had received training on the meaning of 25

exculpatory information and their attendant obligations, and all

written materials used in this training had to be placed on the

eDiscovery portal.

In July 2019, the judge issued a final order finding that,

by April 18, 2019, the Commonwealth had satisfied all these

remedial measures. Consequently, the period of presumptive

exclusion of the results of breath tests extended from June 1,

2011, through April 18, 2019.

With OAT's history of misconduct in mind, we turn to the

defendant's claims in this case.

d. Motion to withdraw. The defendant maintains that the

judge erred in denying her motion to withdraw her admission to

sufficient facts on the ground that her admission was not

knowing and voluntary because of the later-discovered issues

with the Alcotest 9510 device and the government misconduct that

came to light during the Ananias litigation. In particular, she

points to statements in her affidavit averring that her decision

to accept the plea arrangement was based largely on her

attorney's assessment that the breath test results made her case

unwinnable. She maintains that her motion should have been

allowed because OAT's misconduct was egregious and induced her

admission to sufficient facts. Accordingly, her plea was not

knowing and intelligent, and violated her right to due process. 26

"Due process requires that a guilty plea be accepted only

where 'the contemporaneous record contains an affirmative

showing that the defendant's plea was intelligently and

voluntarily made.'" Scott, 467 Mass. at 345, quoting

Commonwealth v. Furr, 454 Mass. 101, 106 (2009). "A guilty plea

is voluntary so long as it is tendered free from coercion,

duress, or improper inducements." Commonwealth v. Wentworth,

482 Mass. 664, 679 (2019), citing Scott, supra.

i. Standard of review. A motion for a new trial under

Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001),

"is the appropriate vehicle to attack the validity of a guilty

plea or an admission to sufficient facts" (citation omitted).

Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass.

298, 316 (2017) (Bridgeman II). A judge may grant a motion for

a new trial any time it appears that justice may not have been

done. See Commonwealth v. Moore, 408 Mass. 117, 125 (1990). We

review the denial of a motion for a new trial for abuse of

discretion or significant error of law. See Commonwealth v.

Sherman, 451 Mass. 332, 334 (2008), quoting Commonwealth v.

Martin, 427 Mass. 816, 817 (1998).

ii. Voluntariness of admission to sufficient facts. In

Scott, 467 Mass. at 346, in light of the so-called drug lab

scandals, we adopted a two-pronged test to determine when

government misconduct is so egregious that it renders a guilty 27

plea involuntary, and thus in violation of a defendant's rights

to due process. See Ferrara, 456 F.3d at 290. To prevail on a

claim that government misconduct induced a defendant to admit to

sufficient facts, "the defendant must show both that

'egregiously impermissible conduct . . . by government

agents . . . antedated the entry of his [or her] plea' and that

'the misconduct influenced his [or her] decision to plead guilty

or, put another way, that it was material to that choice.'"

Scott, supra, quoting Ferrara, supra. Establishing egregious

government misconduct, in turn, requires the defendant to show

that (1) the egregious government misconduct preceded the entry

of his or her guilty plea; (2) the egregious misconduct was

undertaken by government agents; and (3) the misconduct occurred

in the defendant's case. See Scott, supra at 347-351.

The defendant contends that OAT's failure to establish

written calibration protocols for the Alcotest 9510

breathalyzer, and OAT's intentional withholding of exculpatory

evidence beginning at least as early as the deployment of the

Alcotest 9510 device in June 2011, are sufficient to demonstrate

egregious government misconduct by OAT in her case.

A. Egregiously impermissible conduct. Our decisions

addressing the misconduct in State police drug laboratories

involving State police chemists Annie Dookhan and Sonja Farak

contain extensive discussion of what constitutes egregious 28

government misconduct. See Committee for Pub. Counsel Servs. v.

Attorney Gen., 480 Mass. 700, 701-702 (2018) (egregious

misconduct where State police chemist consumed drugs submitted

to government laboratory for testing and drug standards used in

testing and manipulated evidence to conceal actions, and

assistant attorneys general were aware of those actions but

undertook cover-up); Bridgeman II, 476 Mass. at 302 (egregiously

impermissible conduct where State police chemist intentionally

reported positive results without testing submitted evidence,

intentionally contaminated drug samples, falsified machine

reports, and committed breach of laboratory protocols). In

addition, "threats, blatant misrepresentations, or untoward

blandishments by government agents" may constitute conduct that

could be categorized as egregious. See Wilkins v. United

States, 754 F.3d 24, 28 (1st Cir. 2014), quoting Ferrara, 456

F.3d at 290.

The scathing EOPSS report highlights OAT's disturbing

pattern of intentionally withholding exculpatory evidence year

after year, dating back at least as early as June 2011. The

report characterizes OAT's discovery practices as

"dysfunctional," guided by "serious errors of judgment," and

"enabled by a longstanding and insular institutional culture

that was reflexively guarded." OAT leadership "frequently

failed to seek out or take advantage of available legal 29

resources." As a result, thousands of documents were not

produced to defendants in the Ananias litigation and in other

cases, despite plainly being responsive to discovery orders and

requests. These defendants thus did not have the benefit of

using exculpatory authorization reports, the quality assurance

manual, failed certification worksheets, and internal repair

records to challenge the validity of the breath test instrument

used in their individual cases. The broad scope and nature of

these violations of court orders undermined the criminal justice

system in the Commonwealth, compromised thousands of

prosecutions for OUI offenses, and potentially resulted in

inaccurate convictions. As the specially assigned District

Court judge observed in his order denying the defendant's

motion, the conclusion that OAT's behavior was egregiously

impermissible is "inescapable."

The Commonwealth rightly does not dispute that OAT

employees are government agents for purposes of a Scott-Ferrara

analysis. Notably, as well, OAT assists prosecutors and forms

part of the prosecution team in OUI cases, given that proof of

compliance with calibration and certification protocols is an

essential aspect of any OUI prosecution involving a breathalyzer

machine. "[P]rior to the admission of a breathalyzer result,

the Commonwealth must prove the existence of, and compliance

with, the requirements of a periodic testing program [for 30

breathalyzer machines]." Commonwealth v. Barbeau, 411 Mass.

782, 786 (1992).

At the time of the defendant's trial, O'Meara and the three

other scientists employed at OAT were responsible for responding

to discovery requests and maintaining records relative to the

functioning of the breath test instruments. Defense counsel

obtained from OAT the standard breath test report form that

contained certification and calibration information for the

specific device used to test the defendant's BAC, which had been

completed by OAT staff. See Scott, 467 Mass. at 349-350,

quoting Martin, 427 Mass. at 824 (characterizing State police

chemist who "ha[d] participated in the investigation [and]

evaluation of the case and ha[d] reported to the prosecutor's

office concerning the case" as agent of Commonwealth). OAT's

misconduct therefore is attributable to the Commonwealth. We

also note that, prosecutors have a duty to "inquire concerning

the existence of scientific tests, at least those conducted by

the Commonwealth's own crime laboratory." Martin, supra at 823-

824.

"[I]n applying the Ferrara analysis to a defendant seeking

to vacate a guilty plea under Mass. R. Crim. P. 30 (b), on the

ground that government misconduct rendered the plea involuntary,

the defendant is required to show a nexus between the government

misconduct and the defendant's own case." Scott, 467 Mass. 31

at 351. In this case, the motion judge held that, given the

absence of a specific discovery request by the defendant prior

to trial, the defendant was unable to establish the necessary

nexus required by Scott. Accordingly, the judge determined that

it was not within his authority to adopt a conclusive

presumption of egregious misconduct for all cases involving

Alcotest 9510 breathalyzer results (outside the Ananias

litigation defendants). Pointing to the approximately 27,000

defendants who have been affected by OAT's misconduct, which

"has cast a shadow over the entire criminal justice system," the

defendant urges us to adopt a global remedy in this case,

because we "cannot expect defendants to bear the burden" of the

Commonwealth's systemic failures. See Bridgeman v. District

Attorney for the Suffolk Dist., 471 Mass. 465, 476, 487 (2015)

(Bridgeman I), quoting Scott, supra at 354 n.11.

Pursuant to G. L. c. 211, § 3, we have the extraordinary

power to superintend "the administration of all courts of

inferior jurisdiction." "Allegations of systemic abuses

affecting the proper administration of justice are particularly

appropriate for review pursuant to G. L. c. 211, § 3." Brantley

v. Hampden Div. of the Probate & Family Court Dep't, 457 Mass.

172, 183 (2010).

In Scott, 467 Mass. at 351-352, we concluded that it would

have been impossible for the defendant to show the requisite 32

nexus between the government misconduct and the defendant's

conviction, because the State police chemist who had falsified

drug test results was unable to identify the cases in which she

had fabricated results or committed a breach of protocols and

those in which she had followed proper procedures. We therefore

fashioned a global remedy for those defendants who had been

affected by the chemist's misconduct; we determined that

defendants who had been convicted of a drug offense and who

proffered a drug certificate signed by the chemist were entitled

to a conclusive presumption that egregious government misconduct

had occurred. Id. at 352. This special evidentiary rule of a

conclusive presumption was "sui generis," "a remedy dictated by

the particular circumstances surrounding" the chemist's

misconduct, that was "intended to apply only to [the] narrow

class of cases in which a defendant seeks to withdraw his or her

guilty plea after having learned of" this specific misconduct.

Id. at 353-354.

Although we recognize that OAT has complied with numerous

remedial measures that were ordered after the discovery of the

extent of the misconduct involving the Alcotest 9510 device, and

some that were adopted voluntarily, these combined measures do

not go far enough to restore defendants' rights. The inability

of the Ananias litigation defendants to receive a fair and

accurate Daubert-Lanigan hearing, and the years-long practice of 33

intentional withholding of exculpatory evidence, "is a lapse of

systemic magnitude in the criminal justice system" that can be

cured only by a global remedy. See Scott, 467 Mass. at 352.

OAT's cavalier and supercilious attitude toward its discovery

obligations led to the repeated concealment of evidence that its

testing process was flawed. This was compounded by its failure

to work with available legal counsel and the experts in the CMU

who handled all other discovery requests to the crime lab and

who could have assisted in the identification and production of

this type of exculpatory evidence. Indeed, the reach of OAT's

missteps is vast.

The Commonwealth notified approximately 27,000 defendants

whose OUI convictions were implicated by OAT's misconduct.

Requiring tens of thousands of defendants to bear the cost of

proving that OAT's conduct was egregiously impermissible would

be antithetical to our responsibility to ensure the efficient

administration of justice. See Commonwealth v. Camacho, 483

Mass. 645, 650 (2019), quoting Bridgeman I, 471 Mass. at 476

(absent global remedy, "defendants wrongly would bear the burden

of a systemic lapse that . . . is entirely attributable to the

government"). We must "account for the due process rights of

defendants, the integrity of the criminal justice system, the

efficient administration of justice in responding to such

potentially broad-ranging misconduct, and the myriad public 34

interests at stake." See Committee for Pub. Counsel Servs., 480

Mass. at 723, quoting Bridgeman I, supra at 487. Accordingly,

in cases in which a defendant seeks to vacate a guilty plea as a

result of the revelation of OAT's misconduct, and the

defendant's breath test took place between June 1, 2011, and

April 18, 2019, the defendant is entitled to a conclusive

presumption that egregious government misconduct occurred.

At the same time, we do not go as far as some of the amici

suggest and order the dismissal with prejudice of all OUI cases

within the relevant time period. See Committee for Pub. Counsel

Servs., 480 Mass. at 729 (vacating convictions and dismissing

cases tainted by drug lab scandal that met certain criteria).

To begin, OUI prosecutions inherently are different from

prosecutions for drug offenses. Convictions of possession or

distribution of drugs rise and fall on proving that the

substance involved was, in fact, the illegal substance charged.

"In a case charging a narcotics offense, the Commonwealth must

prove beyond a reasonable doubt 'that a substance is a

particular drug' because such proof is an element of the crime

charged." Commonwealth v. Vasquez, 456 Mass. 350, 361 (2010),

quoting Commonwealth v. McGilvery, 74 Mass. App. Ct. 508, 511

(2009), and cases cited. Without the certification that the

substance at issue was the alleged illegal substance, at least

as to possession, there is no case for the prosecution to 35

pursue. See G. L. c. 94C, § 32A (a) ("Any person who knowingly

or intentionally manufactures, distributes, dispenses or

possesses with intent to manufacture, distribute or dispense a

controlled substance . . . shall be punished . . ."). That, in

rare instances, proof that a suspected illegal substance sold by

a defendant was an illegal drug can be established in other

ways, such as the testimony and observation of an experienced

user of the drug, see Commonwealth v. MacDonald, 459 Mass. 148,

153-154 (2011), does not change this calculus.

Comparatively, the Commonwealth has a number of different

avenues by which to pursue an OUI prosecution beyond

establishing the level of alcohol in a defendant's blood.

"Whoever . . . operates a motor vehicle with a percentage, by

weight, of alcohol in their blood of eight one-hundredths or

greater, or while under the influence of intoxicating

liquor . . . shall be punished . . . ." G. L. c. 90,

§ 24 (1) (a) (1). Accordingly, OUI can be shown, for example,

by field sobriety tests, police observations, blood tests, and

statements by a defendant. See, e.g., Commonwealth v. Wood, 261

Mass. 458, 459 (1927) (circumstantial evidence sufficient for

OUI conviction); Commonwealth v. Belliveau, 76 Mass. App. Ct.

830, 835 (2010), quoting Commonwealth v. Petersen, 67 Mass. App.

Ct. 49, 52 (2006) ("Proof of operating under the influence on a

public way may 'rest entirely on circumstantial evidence'"). 36

Thus, even where an unreliable breath test result is suppressed,

the Commonwealth may have other ways in which to pursue a

conviction.

We are satisfied that a conclusive presumption that all

three elements needed to establish the first prong of the Scott-

Ferrara test have been met "will relieve the trial courts of the

administrative burden" of making findings in potentially tens of

thousands of motions for a new trial, see Scott, 467 Mass.

at 353, that egregious government misconduct indeed occurred.

It also will assist in "restor[ing] the public's faith in the

integrity of the courts," without forcing defendants to bear the

cost of the government's misconduct. See Bridgeman II, 476

Mass. at 337 (Hines, J., dissenting).

Because we conclude that the defendant is entitled to a

presumption that the first prong of the Scott-Ferrara test --

the existence of egregious government misconduct that antedated

her plea -- has been established, see Scott, 467 Mass. at 346,

we turn to consideration of the second prong of that test.

B. Reasonable probability defendant would not have pleaded

guilty. The second prong of the Scott-Ferrara test requires a

defendant to demonstrate a reasonable probability that he or she

would not have pleaded guilty had he or she known of OAT's

misconduct. See Scott, 467 Mass. at 354-355, citing United

States v. Fisher, 711 F.3d 460, 469 (4th Cir. 2013), and 37

Ferrara, 456 F.3d at 290, 294. Establishing such a reasonable

probability requires examining the totality of the

circumstances, guided by a number of specific factors. These

factors 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."

Scott, supra at 355, citing Ferrara, supra at 294. The motion

judge decided that the defendant had made the requisite showing,

because she had established a reasonable probability that she

would not have tendered her admission to sufficient facts if she

had known that the breathalyzer results would be excluded.

The defendant's breath test resulted in a reported BAC of

0.23 percent. Aside from the breath test result, the judge

found that proof of the defendant's impairment was based on a

fairly brief interaction between the defendant and the troopers

and her statement that she had had three drinks. Otherwise put,

the breathalyzer result was the "crown jewel" -- the most

inculpatory piece of evidence against the defendant. In

conjunction with the defendant's motion to withdraw, her

attorney submitted an affidavit averring that, given the 38

breathalyzer result, he "did not believe it would be cost

effective or reasonable to take this case to trial." Had he

known, however, that the breathalyzer test was not admissible,

he would have advised the defendant to proceed to trial, as, in

his experience, juries tend to acquit in similar cases where

there is no breathalyzer result and no accident. The defendant

also submitted an affidavit stating that she had relied on her

attorney's advice in making the admission, and she would have

followed his advice to proceed to trial.

The motion judge found, and we agree, that the disposition

that the defendant received was not so favorable that the

benefits of the plea outweighed the value of the evidence. The

Commonwealth did not offer her a charge concession as part of

the plea, and the judge ordered a two-year loss of the

defendant's driver's license, as well as conditions of probation

mandating attendance at AA meetings once per week, enrollment in

a fourteen-day second offender program, submission to an

evaluation pursuant to G. L. c. 90, § 24Q, and random alcohol

testing. While the continuance without a finding was of some

benefit to the defendant (who averred that it was not essential

for her to continue in her line of work), we discern no error in

the judge's determination that the defendant satisfied the

second prong of the Scott-Ferrara test. 39

Accordingly, the denial of the defendant's motion to

withdraw her admission to sufficient facts must be reversed.15

iii. Exposure to harsher sentence. The defendant argues

that, should she prevail in her motion for a new trial and

thereafter be convicted of the same offense, she should not be

subject to a harsher sentence than that which originally was

imposed. If we were to hold otherwise, she argues, it would

chill OAT defendants' exercise of their postconviction rights.

"[T]his court will not review [a] matter until the entire

case is ripe for review due to the burdensome nature of

'piecemeal appellate review.'" Bridgeman I, 471 Mass. at 474,

quoting Campana v. Directors of the Mass. Hous. Fin. Agency, 399

Mass. 492, 499 n.16 (1987). Yet, as stated, approximately

27,000 defendants have been affected by OAT's misconduct. Thus,

it is within our broad powers of superintendence under G. L.

c. 211, § 3, to review the defendant's claim.

Although this issue is not ripe, we nonetheless may review

it "given the significance of this case in light of the

thousands of defendants who have been affected by [the Ananias

litigation]." See Bridgeman I, 471 Mass. at 474. It is the

Commonwealth's position that, notwithstanding the egregious

15 Because of the result we reach, we need not address the defendant's arguments with respect to judicial estoppel and waiver. 40

government misconduct, we should not depart from our general

rule that "when a defendant withdraws his [or her guilty] plea

after sentencing, he [or she] may receive a harsher sentence

than was originally imposed." See Commonwealth v. DeMarco, 387

Mass. 481, 486 (1982).

In Bridgeman I, 471 Mass. at 477, we concluded that

defendants who sought a new trial because of a particular police

chemist's misconduct could not be charged with a greater offense

than the one of which the defendant originally had been

convicted. In addition, if convicted at a new trial, the

defendant could not receive a harsher sentence than the one

originally imposed. We decided that anything less would be

"giving the Commonwealth a second bite at the proverbial apple

in its efforts to convict the [defendants]." Id.

So too here. Our "goal is to fashion a remedy that will,

as much as possible, place [the defendant] in the position that

[she] would have been in if the government had not violated

[her] constitutional right to [d]ue [p]rocess." See Ferrara v.

United States, 372 F. Supp. 2d 108, 111 (D. Mass. 2005). Before

OAT's misconduct came to light, the Commonwealth and the

defendant entered into a plea agreement that they both viewed as

mutually advantageous and fair. Absent the breath test results,

the motion judge found that the defendant would not have entered

into the plea. Allowing the imposition of a harsher sentence 41

after a new trial would vitiate her due process rights to pursue

a remedy for OAT's extensive and egregious misconduct. Thus, if

the defendant is tried and convicted, her sentence must be

capped at what it was under her original plea arrangement.

In this case, however, capping any subsequent sentence at

the defendant's initial sentence poses a unique challenge. As a

result of her admission, the defendant's case was continued

without a finding for two years, she was required to complete

the fourteen-day second offender program, to submit to an

evaluation as set forth in G. L. c. 90, § 24Q, to attend AA

meetings at least once a week, and to submit to random alcohol

testing. Her driver's license also was suspended for two years.

In his decision denying the defendant's motion to withdraw her

admission to sufficient facts, the judge characterized the plea

judge's decision to continue the defendant's case without a

finding as "relatively unusual" for an OUI, second offense. The

Commonwealth contends that the continuance without a finding for

a second offense, less than ten years after the defendant's

first conviction of OUI, constituted an illegal disposition.

An illegal sentence is one that is "in some way contrary to

the applicable statute." See Commonwealth v. Selavka, 469 Mass.

502, 505 (2014), quoting Goetzendanner v. Superintendent, Mass.

Correctional Inst., Norfolk, 71 Mass. App. Ct. 533, 537 (2008). 42

General Laws c. 90, § 24 (1) (a) (1), which governs sentencing

for a conviction of OUI, second offense, provides:

"If the defendant has been previously convicted . . . by a court of the Commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which [the defendant] has been convicted, . . . the defendant shall be punished . . . by imprisonment for not less than sixty days . . . [and] the sentence imposed . . . shall not be reduced to less than thirty days" (emphasis added).

The thirty-day minimum sentence may be served in an approved

facility dedicated to alcohol treatment rehabilitation "to the

extent such resources are available." G. L. c. 90,

§ 24 (1) (a) (1). The provision also contains an exception

providing that "a prosecution [for OUI] shall not be . . .

continued without a finding except for dispositions under [G. L.

c. 90, § 24D]" (emphasis added).16 Id. General Laws c. 90,

§ 24D, permits certain defendants to "be placed on probation for

not more than two years." Those defendants, however, are

individuals who have never been convicted of a prior OUI offense

in any jurisdiction, or who have been convicted of a single like

offense ten or more years previously. See G. L. c. 90, § 24D.

The defendant does not fall into either of these two groups.

16The sentencing guidelines also note that a conviction of OUI, second offense, in violation of G. L. c. 90, § 24 (1) (a) (1), carries a mandatory minimum sentence of thirty days of confinement. See Massachusetts Sentencing Commission, Advisory Sentencing Guidelines 59, 63 (Nov. 2017). 43

Here, prior to her conviction of OUI for events at the

sobriety checkpoint in Beverly in 2013, the defendant was

convicted of a like violation of OUI in New York on May 5, 2006,

clearly less than ten years previously. Thus, continuing the

defendant's case without a finding, without imposing the

mandatory minimum period of confinement of thirty days, was

contrary to the sentencing provisions in G. L. c. 90,

§§ 24 (1) (a) (1), 24D. A "'sentencing judge currently may not

impose a sentence that departs from the prescribed mandatory

minimum' sentence or minimum term." Commonwealth v. Rossetti,

489 Mass. 589, 594 n.7 (2022), quoting Commonwealth v.

Laltaprasad, 475 Mass. 692, 693 (2016). Thus, because her

original sentence was illegal, if the defendant is tried and

convicted at any new trial, her new sentence would not be

limited to the initial disposition.

The Commonwealth concedes that a defendant who successfully

moves for a new trial, and thereafter is convicted, should be

credited for so much of his or her period of license suspension

as already has been served. Imposing an additional period of

license suspension for the same criminal conviction implicates

double jeopardy concerns. See Commonwealth v. Rollins, 470

Mass. 66, 70 (2014), citing Marshall v. Commonwealth, 463 Mass.

529, 534 (2012). For similar reasons, a defendant who has

served a period of incarceration, is convicted again following a 44

new trial, and is sentenced to a longer period of incarceration

must receive credit for the time already served following the

original trial, and therefore may be required only to serve the

period of the new sentence that exceeds the original. Not

crediting the prior time served clearly would implicate double

jeopardy concerns. In addition, a defendant's compliance with

any previously mandated treatment programs or conditions, such

as the fourteen-day second offender program, see G. L. c. 90,

§ 24 (1) (a) (1), evaluation pursuant to G. L. c. 90, § 24Q, or

regular attendance at AA meetings, should be taken into account

when fashioning a new sentence.

We recognize that, in this case, the defendant may have

been unaware of the illegality of her sentence, which apparently

was not recognized by her attorney, the prosecutor, or the

motion judge, who commented only that the sentence was

"relatively unusual." Moreover, the defendant successfully

completed her sentence approximately eight years ago. We

recognize as well that G. L. c. 90, § 24, has been amended

numerous times with respect to penalties and mandatory minimums,

and indeed, three amendments became effective since the

defendant's conviction. See St. 2013, c. 38, § 80, eff. Mar. 1,

2014; St. 2018, c. 69, §§ 32-33, eff. April 13, 2018; St. 2020,

c. 227, § 35, eff. July 1, 2021. Accordingly, in light of the

egregious government misconduct that gave rise to the 45

defendant's motion to withdraw years after she completed serving

her sentence, on remand, she should be afforded the opportunity

to withdraw her motion. See, e.g., Commonwealth v. Rodriguez,

461 Mass. 256, 261 (2012) ("Where there is a plea agreement, the

judge is . . . bound to allow a defendant to withdraw his plea

where the judge imposes a sentence more severe than the

prosecutor's recommendation"); Commonwealth v. Najjar, 96 Mass.

App. Ct. 569, 573 (2019) (allowing defendant to withdraw plea

where "plea judge at the colloquy [failed] to inform the

defendant of the mandatory minimum sentence on the charges to

which the defendant was pleading guilty").

3. Proceedings in future cases. In sum, defendants who

pleaded guilty to an OUI offense, where a breath test had been

conducted using an Alcotest 9510 breathalyzer from June 1, 2011,

through April 18, 2019, are entitled to a conclusive presumption

that the first prong of the Scott-Ferrara test is satisfied, and

the existence of egregious government misconduct that antedated

the defendant's plea has been established. See Scott, 467 Mass.

at 346. By extension, any breath test conducted using an

Alcotest 9510 device during that time period must be excluded in

any pending or future prosecutions.

Where a defendant successfully moves for a new trial due to

OAT's misconduct, and thereafter is convicted, so long as the

defendant's original sentence was legal, the new sentence will 46

be capped at no more than the original sentence. If the

defendant's original sentence was illegal, the new sentence will

not be limited to the initial disposition.

4. Conclusion. This matter is remanded to the District

Court, where the defendant shall be allowed to withdraw her

motion to withdraw her admission to sufficient facts. If the

defendant chooses not to withdraw her motion, the decision

denying her motion to withdraw her admission shall be reversed,

and the case shall proceed consistent with this opinion.

So ordered.