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
22-P-190
COMMONWEALTH
vs.
JOSEPH E. SCHNUPP, THIRD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On October 5, 2015, the defendant admitted to sufficient
facts to support a finding of guilty on a charge of operating a
motor vehicle while under the influence of intoxicating liquor
(or .08 percent blood alcohol content) (OUI), in violation of
G. L. c. 90, § 24 (1) (a) (1). The matter was continued without
a finding (CWOF) for one year and the defendant's driver's
license was suspended for forty-five days. See G. L. c. 90,
§ 24D. As we discuss in more detail below, the evidence against
the defendant consisted, in part, of the results of a breath
test, which was administered using a Draeger Alcotest 9510
breathalyzer device. The test showed a blood alcohol content of
.18 percent, well above the legal limit of .08 percent. Approximately seven years later, on or about February 12, 2021,
the defendant received a notice from the Executive Office of the
Trial Court informing him that he had the right to challenge his
CWOF on the ground that all breath tests administered between
June 1, 2011, and April 18, 2019, "have been excluded from use
in criminal prosecutions." The defendant then filed a motion to
withdraw his admission to sufficient facts claiming that his
admission was not knowing and voluntary because at the time he
tendered his admission he believed that the breath test results
would be admissible, and that the Commonwealth only needed the
results of the test to convict him.
The motion was denied in a detailed memorandum and order.
On appeal, the defendant argues that the judge abused his
discretion by, among other things, concluding that he failed to
demonstrate a reasonable probability that he would not have
admitted to sufficient facts had he known that the breath test
results would have been excluded at trial.
The outcome of this appeal is controlled in all material
respects by the Supreme Judicial Court's recent decision in
Commonwealth v. Hallinan, 491 Mass. 730 (2023). In that case,
which was decided after the ruling at issue here, the court
concluded that the defendant should be permitted to withdraw her
admission to sufficient facts for two reasons. First, because
"defendants who pleaded guilty or who were convicted after
2 trial, and the evidence against whom included breath test
results from [a Draeger] Alcotest 9510 device last calibrated
and certified prior to April 18, 2019, are entitled to a
conclusive presumption of egregious government misconduct."1 Id.
at 731. And second, despite proof of impairment (red and glassy
eyes, odor of alcohol, slurred speech, inability to complete
field sobriety tests, and "dazed" appearance), and the
defendant's admission that she had three alcoholic drinks, the
court concluded that the reported breathalyzer result of .23
percent was the most inculpatory piece of evidence. Id. at 732,
750. The court's reasoning and the similarity of the
circumstances presented in Hallinan to those presented here lead
us to conclude that we must reach the same result and,
therefore, we reverse the order denying the defendant's motion
to withdraw his admission.
Background. Given the passage of time, there is no
recording of the hearing at which the defendant admitted to
The court described the government misconduct at issue in 1
detail and specifically noted that the Office of Alcohol Testing (OAT), a division of the State Police Crime Laboratory responsible for the Commonwealth's breath testing program, has been found to have engaged in a "disturbing pattern of intentionally withholding exculpatory evidence . . . dating back at least as early as June 2011." Hallinan, 491 Mass. at 733- 743, 745.
3 sufficient facts. We therefore summarize the facts from the
judge's memorandum of decision and order.
During the course of investigating a car accident in the
early morning hours of March 1, 2015, Sergeant David Sedgwick of
the Rowley police department went to a residence located at 159
Leslie Road. The owner of a car that had been abandoned at the
scene of the accident resided at that address. On his arrival,
Sergeant Sedgwick encountered the defendant sitting in the
driver's seat of a black Dodge Ram pickup truck that was idling
at the bottom of the driveway. The truck was partially in the
road. After speaking with individuals inside the residence,
Sergeant Sedgwick learned that they and the defendant had just
returned from a military ball. He then spoke with the defendant
and informed him that the truck had to be moved. The defendant
was nervous and had a strong odor of alcohol on his breath. The
defendant's speech was slurred, his eyes were red and glassy,
and his movements were deliberate and methodical. Sergeant
Sedgwick instructed the defendant to move his truck completely
into the driveway and to remain at the residence that evening.
The defendant, however, did not follow Sergeant Sedgwick's
instructions. Soon thereafter, he was seen driving the truck
and was stopped by Sergeant Sedgwick. The defendant's reaction
to the cruiser's lights was slow, and he drove in and out of the
shoulder of the road before stopping. When asked to step out of
4 the truck, the defendant staggered. He refused to perform field
sobriety tests and claimed the police had set him up. The
defendant was placed under arrest and transported to the police
station.
During the booking process, the defendant became agitated
and appeared panic stricken; the defendant complained of chest
pains, but refused medical treatment. He admitted that he was
impaired and he stated, in a clear reference to his blood
alcohol content, that he believed he was "around a 'point one.'"
The defendant opted to provide a breath sample, which was tested
on a Draeger Alcotest 9510 device. The test revealed a much
higher blood alcohol content of .18 percent.
As previously noted, the defendant was charged with OUI and
subsequently admitted to sufficient facts to warrant a finding
of guilty. Years later, when it came to light that the results
of the breath test results obtained from a Draeger Alcotest 9510
device were deemed inadmissible, he filed a motion for a new
trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435
Mass. 1501 (2001).2 The motion was supported by an affidavit in
which the defendant averred that he "was told that the
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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
22-P-190
COMMONWEALTH
vs.
JOSEPH E. SCHNUPP, THIRD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On October 5, 2015, the defendant admitted to sufficient
facts to support a finding of guilty on a charge of operating a
motor vehicle while under the influence of intoxicating liquor
(or .08 percent blood alcohol content) (OUI), in violation of
G. L. c. 90, § 24 (1) (a) (1). The matter was continued without
a finding (CWOF) for one year and the defendant's driver's
license was suspended for forty-five days. See G. L. c. 90,
§ 24D. As we discuss in more detail below, the evidence against
the defendant consisted, in part, of the results of a breath
test, which was administered using a Draeger Alcotest 9510
breathalyzer device. The test showed a blood alcohol content of
.18 percent, well above the legal limit of .08 percent. Approximately seven years later, on or about February 12, 2021,
the defendant received a notice from the Executive Office of the
Trial Court informing him that he had the right to challenge his
CWOF on the ground that all breath tests administered between
June 1, 2011, and April 18, 2019, "have been excluded from use
in criminal prosecutions." The defendant then filed a motion to
withdraw his admission to sufficient facts claiming that his
admission was not knowing and voluntary because at the time he
tendered his admission he believed that the breath test results
would be admissible, and that the Commonwealth only needed the
results of the test to convict him.
The motion was denied in a detailed memorandum and order.
On appeal, the defendant argues that the judge abused his
discretion by, among other things, concluding that he failed to
demonstrate a reasonable probability that he would not have
admitted to sufficient facts had he known that the breath test
results would have been excluded at trial.
The outcome of this appeal is controlled in all material
respects by the Supreme Judicial Court's recent decision in
Commonwealth v. Hallinan, 491 Mass. 730 (2023). In that case,
which was decided after the ruling at issue here, the court
concluded that the defendant should be permitted to withdraw her
admission to sufficient facts for two reasons. First, because
"defendants who pleaded guilty or who were convicted after
2 trial, and the evidence against whom included breath test
results from [a Draeger] Alcotest 9510 device last calibrated
and certified prior to April 18, 2019, are entitled to a
conclusive presumption of egregious government misconduct."1 Id.
at 731. And second, despite proof of impairment (red and glassy
eyes, odor of alcohol, slurred speech, inability to complete
field sobriety tests, and "dazed" appearance), and the
defendant's admission that she had three alcoholic drinks, the
court concluded that the reported breathalyzer result of .23
percent was the most inculpatory piece of evidence. Id. at 732,
750. The court's reasoning and the similarity of the
circumstances presented in Hallinan to those presented here lead
us to conclude that we must reach the same result and,
therefore, we reverse the order denying the defendant's motion
to withdraw his admission.
Background. Given the passage of time, there is no
recording of the hearing at which the defendant admitted to
The court described the government misconduct at issue in 1
detail and specifically noted that the Office of Alcohol Testing (OAT), a division of the State Police Crime Laboratory responsible for the Commonwealth's breath testing program, has been found to have engaged in a "disturbing pattern of intentionally withholding exculpatory evidence . . . dating back at least as early as June 2011." Hallinan, 491 Mass. at 733- 743, 745.
3 sufficient facts. We therefore summarize the facts from the
judge's memorandum of decision and order.
During the course of investigating a car accident in the
early morning hours of March 1, 2015, Sergeant David Sedgwick of
the Rowley police department went to a residence located at 159
Leslie Road. The owner of a car that had been abandoned at the
scene of the accident resided at that address. On his arrival,
Sergeant Sedgwick encountered the defendant sitting in the
driver's seat of a black Dodge Ram pickup truck that was idling
at the bottom of the driveway. The truck was partially in the
road. After speaking with individuals inside the residence,
Sergeant Sedgwick learned that they and the defendant had just
returned from a military ball. He then spoke with the defendant
and informed him that the truck had to be moved. The defendant
was nervous and had a strong odor of alcohol on his breath. The
defendant's speech was slurred, his eyes were red and glassy,
and his movements were deliberate and methodical. Sergeant
Sedgwick instructed the defendant to move his truck completely
into the driveway and to remain at the residence that evening.
The defendant, however, did not follow Sergeant Sedgwick's
instructions. Soon thereafter, he was seen driving the truck
and was stopped by Sergeant Sedgwick. The defendant's reaction
to the cruiser's lights was slow, and he drove in and out of the
shoulder of the road before stopping. When asked to step out of
4 the truck, the defendant staggered. He refused to perform field
sobriety tests and claimed the police had set him up. The
defendant was placed under arrest and transported to the police
station.
During the booking process, the defendant became agitated
and appeared panic stricken; the defendant complained of chest
pains, but refused medical treatment. He admitted that he was
impaired and he stated, in a clear reference to his blood
alcohol content, that he believed he was "around a 'point one.'"
The defendant opted to provide a breath sample, which was tested
on a Draeger Alcotest 9510 device. The test revealed a much
higher blood alcohol content of .18 percent.
As previously noted, the defendant was charged with OUI and
subsequently admitted to sufficient facts to warrant a finding
of guilty. Years later, when it came to light that the results
of the breath test results obtained from a Draeger Alcotest 9510
device were deemed inadmissible, he filed a motion for a new
trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435
Mass. 1501 (2001).2 The motion was supported by an affidavit in
which the defendant averred that he "was told that the
2 "An admission to sufficient facts to warrant a finding of guilty is treated as a guilty plea for the purposes of a motion for a new trial." Commonwealth v. Scott, 467 Mass. 336, 337 n.1 (2014).
5 Commonwealth would only need the results of the test to convict
[him] and that [he] was 'per se' guilty because of the test
results." According to the defendant, had he known that the
breathalyzer test results could not be used against him at
trial, "[his] decision to pursue a trial would have been an easy
one." Following a hearing before the same judge who imposed the
CWOF, the defendant's motion was denied.3,4
Discussion. We review the denial of the defendant's motion
to withdraw his admission for abuse of discretion or significant
error of law. See Commonwealth v. Yardley Y., 464 Mass. 223,
227 (2013).
The judge properly evaluated the defendant's claim under
the so-called Scott/Ferrara test. See Commonwealth v. Scott,
467 Mass. 336, 346 & n.5 (2014), and Ferrara v. United States,
456 F.3d 278, 290-291 (1st Cir. 2006). The test applies where,
as here, a defendant seeks to vacate an admission to sufficient
facts as involuntary due to subsequently revealed evidence of
3 We do not ignore the judge's conclusion that the defendant's affidavit was self-serving or the principle that "we extend special deference" to a judge's decision where, as here, the motion judge is the same judge who presided over the defendant's admission. Commonwealth v. Sharpe, 454 Mass. 135, 147 (2009). We nonetheless conclude that Hallinan constrains us to reverse.
4 Briefing and argument in this court were stayed pending resolution in the Supreme Judicial Court of Hallinan, 491 Mass. at 730.
6 government misconduct. Under that test, the defendant must
demonstrate (1) "that the guilty plea was preceded by
'particularly pernicious' government misconduct that was the
source of the defendant's misapprehension of some aspect of his
case"; and (2) "a reasonable probability that [the defendant]
would not have pleaded guilty had he known of [the governmental]
misconduct." Scott, supra at 347, 354-355, quoting Ferrara, 465
F.3d at 291.
The judge concluded that the defendant failed to meet his
burden under both prongs of the test. As we have previously
noted, at the time he issued his ruling, the judge did not have
the benefit of the Hallinan decision. Thus, as the defendant
correctly contends, and the Commonwealth concedes, he is
entitled to a presumption of egregious government misconduct.
Accordingly, the only issue before us is whether the judge
abused his discretion in concluding that the defendant failed to
show there was a reasonable probability that he would not have
admitted to sufficient facts in the circumstances.
The second prong of the test requires an examination of the
totality of the circumstances, guided by the factors delineated
in Scott, 467 Mass. at 355. See Hallinan, 491 Mass. at 750.
The judge properly addressed all these factors in rendering his
decision. However, as the court in Hallinan, supra at 744-745,
explained, the defendant need only show that the misconduct
7 influenced his decision to admit to sufficient facts. Here, the
evidence of the defendant's impairment, apart from the breath
test, is sufficiently similar to the evidence of impairment
present in Hallinan, supra at 750, such that we conclude there
exists a reasonable probability that the defendant would not
have admitted to sufficient facts had he known that the breath
test results could not be used against him at trial.5 Similar to
the court in Hallinan, we view the evidence of the defendant's
breathalyzer result of .18 percent, which was more than double
the legal limit of .08 percent, as the "'crown jewel' -- the
most inculpatory piece of evidence against the defendant." Id.
5 To be sure, there are some differences in the facts between the cases. For example, the police had less interaction with Hallinan than they did with the defendant here, and while Hallinan admitted that she had been drinking, the defendant made a potentially more inculpatory admission when he surmised that his blood alcohol content was over the legal limit. Contrast Hallinan, 491 Mass. at 750. In addition, we note that the defendant did not provide an affidavit from his attorney to support his contention that he was "told" the Commonwealth needed only the breath test results to convict him, whereas Hallinan's motion was supported by an affidavit from her attorney who averred that had he known that the breath test was not admissible, he would have advised her to proceed to trial. See id. at 751. Generally, the absence of an affidavit from counsel renders the defendant's position less credible. E.g., Commonwealth v. Lys, 91 Mass. App. Ct. 718, 722 (2017). Here, however, given that the defendant did not learn of the governmental misconduct until seven years after he appeared in court, we are not inclined to hold the absence of an affidavit against him.
8 Conclusion. The order denying the defendant's motion to
withdraw his admission to sufficient facts is reversed and the
matter is remanded to the District Court for further
proceedings.
So ordered.
By the Court (Vuono, Rubin & Smyth, JJ.6),
Assistant Clerk
Entered: June 13, 2024.
6 The panelists are listed in order of seniority.