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 
2

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.
3

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, 
4

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.
5

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, 
6

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).
7

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.