Opinion
No. 15–P–1405.
09-28-2016
COMMONWEALTH v. Maleah A. SHARPE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After pleading guilty to charges of operating a motor vehicle under the influence of intoxicating liquor, second offense, and negligent operation of a motor vehicle, the defendant filed a motion to vacate her conviction. The motion was denied. On appeal, the defendant claims that the motion judge abused his discretion by denying the motion in light of new evidence concerning the accuracy of other breath test machines of the same model. We affirm.
A motion for new trial will only be granted “if it appears that justice may not have been done.” Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992), quoting from Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). “Judges are to ‘apply the standard set out in Mass.R.Crim.P. 30(b) [, as appearing in 435 Mass. 1501 (2001),] rigorously,’ ... and should ‘only grant a postsentence motion to withdraw a plea if the defendant comes forward with a credible reason which outweighs the risk of prejudice to the Commonwealth.” Fanelli, supra, quoting from Commonwealth v. Hason, 27 Mass.App.Ct. 840, 844–845 (1989). A judge's disposition will not be disturbed unless an abuse of discretion is proved exhibiting a manifest injustice. Commonwealth v. Pingaro, 44 Mass.App.Ct. 41, 48 (1997).
When a plea of guilty is entered, a final judgment of conviction is entered, for “a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.” Fanelli, supra at 500, quoting from Commonwealth v. Stokes, 18 Mass.App.Ct. 637, 641 (1984). The defendant claims that had she been aware of the evidence concerning specifically identified breathalyzer machines that were failing periodic calibration tests, she would not have pleaded guilty but would have pursued a trial. The defendant provided the motion judge with reports and newspaper articles concerning the Commonwealth's Office of Alcohol Testing's (OAT) notification to certain police departments that their breathalyzer machines had failed certain periodic tests. Neither the OAT letters nor the newspaper articles concerned the specific Draeger 9510 Alcotest used by the Southbridge police department in conjunction with the defendant's arrest.
The machines included were used in police departments in Attleboro, Braintree, Chicopee, Hanover, Hull, Lawrence, Lincoln, Northboro, Norwood, Sutton, and Westminster, as well as the Dukes County Sheriff's Department and five State Police barracks.
In fact, the defendant failed to provide the motion judge with any evidence concerning the Southbridge police department's breathalyzer machine used the night of her arrest. The Commonwealth, recognizing the recent OAT report concerning specific breathalyzer machines, provided the motion judge with the calibration range and periodic testing report numbers of the machine used that night, both numbers being well within the accepted range. See 501 Code Mass. Regs. § 2.11(3) (2010); 501 Code Mass. Regs. § 2.12(1) (2010).
The prosecutor explained that “[t]he calibration [of the breathalyzer machine used to test the defendant] that evening [of the incident] was a .079 ... [and t]he periodic test report was a .08.”
The regulations require “periodic test[ing]” to check the breathalyzer's function. 501 Code Mass. Regs. § 2.12(1). Each periodic test consists of “five calibration standard analysis tests .” Ibid. A calibration standard analysis test is a reading by the breathalyzer of the alcohol concentration of the gas in the cylinder to test the accuracy of the breath test machine. See 501 Code Mass. Regs. §§ 2.02, 2.11(3), 2.12 (2010). “The test shall be considered valid and the device operating properly” if the reading of the gas in the cylinder “shows an alcohol concentration of 0.074%–0.086%.” 501 Code Mass. Regs. § 2.11(3). A written report must be made of each periodic test and “shall serve as the record that the device is in calibration and working properly, and shall be admissible in a court of law.” 501 Code Mass. Regs. § 2.12(1).
The defendant presented no evidence that her plea was not knowing and voluntary, nor any reason to doubt the calibration and validity of the breathalyzer machine used in the defendant's case. As there was no showing of any defect with the Southbridge police department's breathalyzer machine from the night of her test, the defendant's claim that the motion judge abused his discretion in denying her motion to vacate her conviction is without merit.
Order denying motion to vacate conviction affirmed.