Motor vehicles – Plea withdrawal – Alcotest 9510

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Where a defendant’s second motion to withdraw his plea was denied, it was a clear error of law to deny the defendant’s motion, as he demonstrated a reasonable probability that he would not have pleaded guilty had he known of misconduct by the government.

“… Defendants seeking to vacate a conviction after trial or a guilty plea, ‘and the evidence against whom included breath test results from an Alcotest 9510 device last calibrated and certified prior to April 18, 2019, are entitled to a conclusive presumption of egregious government misconduct.’ …

“… Based on our review of the record, we conclude that it was a clear error of law to deny the defendant’s motion. The facts here are similar to those in [Commonwealth v. Hallinan, 491 Mass. 730 (2023)]. … Here, as in Hallinan, the defendant’s breathalyzer result was the ‘crown jewel’ in the prosecution’s case against the defendant. … The defendant had a 0.20 percent BAC result, which was two and one-half times the legal limit of .08 percent. …

“We conclude that the defendant has ‘demonstrate[d] a reasonable probability that he … would not have pleaded guilty had he … known of [the government] misconduct.’ Hallinan, 491 Mass. at 750. While the breathalyzer result was not the only evidence of the defendant’s impairment, the additional evidence was similar to the evidence in Hallinan and not overwhelming — here, the defendant did not fail the alphabet test and a fact finder might have accepted the defendant’s explanation that his back and hip injuries had interfered with his ability to perform the walk and turn test.

“The defendant also submitted an affidavit from his plea counsel in which she stated that she believed that ‘the failed breathalyzer result was one of the significant factors behind the decision to dispose of the case rather than proceeding to trial’ and that the ‘high test result … was an incriminating piece of evidence.’ The defendant stated in his affidavit that his attorney told him that the breathalyzer evidence ‘was damaging and that it would be tough to win the case.’ He asserted that he would not have pleaded guilty had he known about the misconduct and that his decision to plead guilty was based on his attorney’s advice and on his belief that the breath test was admissible evidence.

“Furthermore, ‘the disposition that the defendant received was not so favorable that the benefits of the plea outweighed the value of the evidence.’ Hallinan, 491 Mass. at 751. There was no evidence that the Commonwealth offered a charge concession as part of the plea.

“Based on the record, we conclude that the judge erred in denying the defendant’s second motion to withdraw his plea.

“Accordingly, the order denying the defendant’s second motion to withdraw his plea is reversed. The case is remanded to the District Court for further proceedings.”

Commonwealth v. Griswold (Lawyers Weekly No. 81-102-25) (9 pages) (Docket No. 24-P-449) (July 7, 2025).

Click here to read the full text of the opinion.