Commonwealth v. Hallinan

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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,
§ 24 (1) (a) (1).
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.
31at 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.