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-756

COMMONWEALTH

vs.

ELVIS J. LUCKHAM.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2013, the defendant was charged by complaint with 

operation of a motor vehicle while under the influence of 

intoxicating liquor (OUI); operation of a motor vehicle after 

his license had been suspended; and failure to stop for a police 

officer. The following year, the defendant pleaded guilty to 

the OUI charge, and in return, the Commonwealth entered notices 

of nolle prosequi as to the two remaining charges.

In 2021, the defendant filed a motion to withdraw his 

guilty plea, which was denied. On appeal, the defendant claims 

the judge erred in denying the motion because had he known of 

the misconduct of the Office of Alcohol Testing (OAT) as it 

related to breathalyzer tests and the resulting inadmissibility 

of such evidence in his case, he would not have pleaded guilty. 

See Commonwealth v. Hallinan, 491 Mass. 730, 745-751 (2023) 
2

(defendant allowed to withdraw her admission to sufficient 

facts). We affirm.

"A motion to withdraw a guilty plea is treated as a motion 

for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 

435 Mass. 1501 (2001)." Commonwealth v. Jean-Louis, 102 Mass. 

App. Ct. 348, 351 (2023). "A judge may grant the defendant's 

motion only if it appears that justice may not have been done"

(quotations and citations omitted). Commonwealth v. Furr, 454 

Mass. 101, 106 (2009). "We review the denial of a motion to 

withdraw a guilty plea to determine whether there has been a 

significant error of law or other abuse of discretion."

Commonwealth v. Lastowski, 478 Mass. 572, 575 (2018), quoting 

Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016).1

Here, the defendant pleaded guilty after having taken a 

breathalyzer test that showed a blood alcohol content of 0.08 

percent. However, that breath test was conducted at a time 

1 Relying on Commonwealth v. Mazza, 484 Mass. 539, 547 (2020), 

the defendant claims that our review is de novo because the 

motion judge was not the trial judge, and he took no evidence. 

We disagree. In Hallinan, on which this appeal is based, the 

Supreme Judicial Court reviewed for an abuse of discretion, not 

de novo, even though the motion judge was not the judge who took 

the defendant's plea, and despite the motion judge only 

conducting a non-evidentiary hearing. Hallinan, supra at 733, 

745. See Commonwealth v. Hart, 467 Mass. 322, 324 (2014). 

Contrast Commonwealth v. Escobar, 479 Mass. 225, 227 (2018) 

(where it is question of statutory interpretation, review is de 

novo). In any event, we would reach the same result in this 

case under a de novo review.
3

during which the Supreme Judicial Court has held that defendants 

are entitled to a conclusive presumption of egregious government 

misconduct, see Commonwealth v. Scott, 467 Mass. 336, 338, 346, 

352-353 (2014); Ferrara v. United States, 456 F.3d 278, 290-291

(1st Cir. 2006), and their breath test results are excluded from 

use at any subsequent trial. See Hallinan, supra at 731, 755.

Under the second prong of the Scott-Ferrara test, the

defendant must demonstrate a reasonable probability that he 

would not have pleaded guilty had he known of OAT's misconduct. 

See Hallinan, supra at 750. Here, the motion judge analyzed the 

reasonable probability question through the lens of Commonwealth

v. Clarke, 460 Mass. 30, 46-47 (2011), abrogated on other 

grounds by Chaidez v. U.S., 568 U.S. 342, 347 (2013), the 

defendant does not claim any separate impropriety because of 

this. Under Clarke, the motion judge evaluates whether it would 

have been rational to reject the plea deal under the 

circumstances. Id.2

2 The motion judge held that it would not have been "reasonable 

or rational for the [d]efendant to go to trial." In his brief, 

the defendant analyzed the five Hallinan factors as part of the 

evaluation of the second prong of the Scott-Ferrara test. Those 

factors are: "(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 outcomedeterminative, (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 
4

As the motion judge found, there was considerable evidence 

of impairment. The defendant displayed droopy, glassy, and 

bloodshot eyes, he could not focus, and a strong odor of alcohol 

and marijuana emanated from the car and from the defendant 

himself. When the police attempted to engage the defendant in 

conversation, he looked straight ahead and drove away, despite 

requests for him to stop. This permitted an inference of the 

defendant's consciousness of guilt. See Commonwealth v. 

Indrisano, 87 Mass. App. Ct. 709, 718 (2015). When he was 

eventually stopped a second time, and was out of the car, the 

defendant was swaying back and forth, he was unsteady on his 

feet, and he could not provide his name. Also, the defendant's 

blood alcohol content of 0.08 percent was not powerful evidence 

of his intoxication, unlike in Hallinan, where it was measured 

at 0.23 percent, which the court characterized it as the "crown 

jewel" of the Commonwealth's case. Hallinan, supra at 750. 

Furthermore, the defendant did not provide any information 

about what advice he had received from counsel, nor was there an 

affidavit from plea counsel. Contrast id. at 751. Also, unlike 

Hallinan, the Commonwealth dismissed two additional charges when 

the defendant offered to plead guilty to the OUI, one of which 

value of the evidence was outweighed by the benefits of entering 

into the plea agreement." Hallinan, supra at 750, quoting 

Scott, supra at 355.
5

carried a mandatory sixty-day suspension of his license, a 

period longer than that otherwise associated with a first 

offense OUI conviction in which a breathalyzer was administered. 

See G. L. c. 90, §§ 23, 24D, and 25. In Hallinan, there were no 

charge concessions. See Hallinan, supra at 751. The motion 

judge properly weighed these factors against the defendant's 

claim.

At bottom, it was not an abuse of discretion for the judge 

to conclude that the defendant failed to demonstrate that there 

was a reasonable probability that he would not have pleaded 

guilty had he know about the inadmissibility of the breathalyzer 

results. Accordingly, the defendant's motion to withdraw his 

guilty plea was properly denied.

Order denying motion to 

withdraw guilty plea 

affirmed.

By the Court (Meade, Singh & 

Smyth, JJ.3),

Clerk

Entered: December 8, 2023.

3 The panelists are listed in order of seniority.