Commonwealth v. Amber Ivy.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1444

COMMONWEALTH

vs.

AMBER IVY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In April 2013 the defendant was charged with operating a

motor vehicle while under the influence of alcohol (OUI) and

negligent operation of a motor vehicle, and the civil

infractions of speeding and marked lanes violation. In June

2014 the defendant admitted to sufficient facts to support a

guilty finding on the OUI charge and received a continuance

without a finding. The Commonwealth dismissed the remaining

charges as part of the plea offer.

In July 2023 the defendant filed a "motion to withdraw

guilty plea" on the ground of misconduct involving the State

Police Office of Alcohol Testing (OAT) and its use of the

Draeger Alcotest 9510 breathalyzer device. A judge of the
District Court denied the motion, concluding that the defendant

failed to establish a reasonable probability that she would not

have admitted to sufficient facts had she known of OAT's

misconduct, and the defendant appeals. We affirm.

Background. Because of the age of the case, there is no

recording of the hearing at which the defendant tendered her

admission. The parties agreed, however, that the police report

and the breath test results provided the factual basis for the

admission. The following facts are summarized from the police

report.

On April 14, 2013, at approximately 2:15 A.M., Trooper

Christopher Meleo was on patrol on Route 195 in Fall River when

he saw a vehicle traveling in front of him with sparks coming

from the undercarriage. He noticed that a piece of the vehicle

was dragging on the road, making a loud grinding noise. The

vehicle, which was traveling in the right lane, crossed into the

middle lane numerous times and appeared to be speeding. Using

the speedometer in his cruiser, Trooper Meleo "clocked" the

vehicle for approximately one mile and determined that it was

traveling at eighty miles per hour, well over the posted limit

of fifty-five miles per hour. He then saw the vehicle cross

from the right lane into the middle and left lanes and over the

yellow line, before nearly colliding with the median barrier.

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Trooper Meleo stopped the vehicle as soon as it was safe to

do so. As he approached, the driver, later identified as the

defendant, rolled down her window. Trooper Meleo immediately

smelled an odor of alcohol coming from the vehicle. The

defendant could not locate her driver's license, had bloodshot

and glassy eyes and slurred speech, and admitted to having one

drink. When Trooper Meleo asked her to recite the alphabet, the

defendant made it about halfway through before she "started to

mumble the letters inaudibly then started from the middle again

before stopping altogether." Upon administering the horizontal

gaze nystagmus test, Trooper Meleo noticed that the defendant

"displayed lack of smooth pursuit in both eyes."

Based on these observations, Trooper Meleo asked the

defendant to step out of the vehicle to perform additional field

sobriety tests. The defendant placed both hands on the door as

she got out and was unsteady on her feet as she walked to the

front of the vehicle. On the walk and turn test, which the

defendant attempted twice, she started before Trooper Meleo

completed the instructions, missed heel to toe numerous times,

and frequently stepped off the line. On the one leg stand test,

the defendant swayed as she stood in the starting position,

could not keep her foot off the ground for more than one to two

seconds, and tipped backwards and had to place a hand on her

vehicle to regain balance. Attempting the test a second time,

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the defendant was able to hold her foot up for eight seconds

before stumbling backwards.

Forming the opinion that the defendant was under the

influence of alcohol, Trooper Meleo placed her under arrest. At

this point the defendant became belligerent and uncooperative.

She accused Trooper Meleo of being a "crooked cop," told him

that she was a "CNA,"1 and in a menacing tone said, "one day I

may get to take care of your mother." Once they arrived at the

State Police barracks, the defendant's demeanor fluctuated from

aggressive to tearful to normal. The defendant agreed to take a

breath test, which revealed a blood alcohol content of .14

percent.

Discussion. We review the judge's denial of the

defendant's motion for abuse of discretion or significant error

of law. See Commonwealth v. Hallinan, 491 Mass. 730, 744

(2023). Under Hallinan, supra at 748, the defendant was

entitled to a conclusive presumption of egregious government

misconduct because she "submitted to a breath test on an

Alcotest 9510 device last calibrated and certified prior to

April 18, 2019." The question is whether the defendant

"established a reasonable probability that she would not have

tendered her admission to sufficient facts if she had known that

1 We presume this to mean certified nursing assistant.

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the breathalyzer results would be excluded." Id. at 750.

"Establishing such a reasonable probability requires examining

the totality of the circumstances" guided by several factors,

which include:

"(1) whether evidence of the government misconduct could
have detracted from the factual basis used to support the
guilty plea, (2) whether the evidence could have been used
to impeach a witness whose credibility may have been
outcome-determinative, (3) whether the evidence is
cumulative of other evidence already in the defendant's
possession, (4) whether the evidence would have influenced
counsel's recommendation as to whether to accept a
particular plea offer, and (5) whether the value of the
evidence was outweighed by the benefits of entering into
the plea agreement."

Id., quoting Commonwealth v. Scott, 467 Mass. 336, 355-356

(2014).

Applying these factors here, we discern no abuse of

discretion in the judge's denial of the defendant's motion. The

defendant was charged with OUI on alternative theories that she

drove while impaired or with a blood alcohol content of .08

percent or higher. The evidence of OAT's misconduct relating to

the Alcotest 9510 device would not have detracted from the

evidence of the defendant's impairment, which was substantial.

She drove at a high rate of speed while dragging a piece of her

vehicle on the ground, drifted in between lanes, and almost

collided with the median. She also failed several field

sobriety tests, admitted to drinking, and "exhibited classic

symptoms of alcohol intoxication," such as odor of alcohol,

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bloodshot and glassy eyes, slurred speech, belligerent demeanor,

and unsteadiness on her feet. Commonwealth v. Gallagher, 91

Mass. App. Ct. 385, 392 (2017). Moreover, as the judge

observed, Trooper Meleo's interaction with the defendant was far

more extensive than the "fairly brief interaction" in Hallinan,

491 Mass. at 750, and the evidence of OAT's misconduct would not

have impeached his credibility as to his observations of the

defendant's appearance and demeanor.

In addition, unlike in Hallinan, 491 Mass. at 751, the

defendant's motion was not supported by an averment from plea

counsel that, had she known of OAT's misconduct, she would have

advised the defendant to go to trial. Plea counsel's affidavit

stops short of this, stating only that "[i]f the breathalyzer

results were excluded, . . . [she] would have considered trying

the case." And further unlike in Hallinan, supra, the defendant

received a substantial benefit from accepting the plea offer.

Not only did she receive a favorable disposition of a

continuance without a finding on the OUI charge, the

Commonwealth dismissed the remaining charges, including the

charge of negligent operation, which carried a potential

punishment of up to two years' imprisonment and an additional

sixty-day suspension of the defendant's driver's license. See

G. L. c. 90, § 24 (2) (a).

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In light of all of these factors, the judge properly

determined that the defendant failed to demonstrate a reasonable

probability that she would have gone to trial had she known that

the breath test results would be excluded. Accordingly, the

judge did not abuse his discretion in denying the defendant's

motion.

Order denying motion to
withdraw guilty plea
affirmed.

By the Court (Shin, Grant &
Smyth, JJ.2),

Clerk

Entered: September 19, 2024.

2 The panelists are listed in order of seniority.

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