Around 4 a.m. on April 23, 2016, David Pagan crashed his car near 535 Wilbraham Road in Palmer.
The vehicle was badly damaged along the passenger side. The axel broke and one of the wheels was completely separated from the vehicle.
David dialed 911 to report the accident. When police arrived, he told them that another car sideswiped him and forced his vehicle off the road.
An officer asked David if he needed an EMT. In response, David allegedly said, “do I fucking look alright? My fucking new car is destroyed.”
Things went down hill rapidly.
While uttering a stream of profanities at the cops, David went to the trunk of his car to retrieve a jack. He stated that he needed to change the car’s tire, despite the fact that the axel was snapped and at least one of the wheels had broke off.
Smelling alcohol on David’s breath, an officer asked him to perform a field sobriety test. Instead of complying with the test, David clinched his fists and aggressively moved towards the officer asking if he “was fucking kidding him.” David then shoved the officer before begin subdued.
His belligerent behavior continued throughout the booking process. According to court documents, David kicked the inside of the police cruiser, threatened to murder the arresting officer and his family, and even stated that he was going to “fuck [the officer’s] mother.”
Surprisingly David agreed to take the breath test, telling police that he “wanted an apology when it came back negative.” Instead, the test came back showing a blood-alcohol content of 0.14% which well exceeds the legal BAC limit of 0.08%.
The breathalyzer used, however, was the defective Draeger Alcotest 9510.
Police charged David with numerous crimes:
- operating under the influence of alcohol (OUI)
- negligent operation of a motor vehicle
- resisting arrest
- assault and battery on a police officer, and
- disorderly conduct.
Ultimately David worked out a plea agreement with the prosecution. According to the agreement, the Commonwealth dismissed all counts but the OUI and resisting arrest. David received a CWOF for the OUI and a guilty for the misdemeanor “resisting” charge.
In 2021, after defects in the Draeger Alcotest 9510 breath test became public, David filed a motion for a new trial in his case.
The motion was denied by a district court judge who concluded that David’s plea was reasonable in light of the strong evidence against him (excluding the breath test) and the charge concessions made by the Commonwealth.
David appealed the decision. The Appeals Court sided with the motion judge. According to the applicable case law (referred to as the Scott-Ferrara test):
To prevail on a claim that government misconduct induced a defendant to admit to sufficient facts, the defendant must show both (1) that egregiously impermissible conduct by government agents antedated the entry of his plea and (2) that the misconduct influenced his decision to plead guilty or, put another way, that it was material to that choice.
The justices go on to say,
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. When considering the second prong, the motion judge evaluates whether it would have been rational to reject the plea deal under the totality of the circumstances in the defendant’s individual case.
David met the first prong of the Scott-Ferrara test based on the ruling in Commonwealth v. Hallinan. In that case, the Supreme Judicial Court ruled:
Defendants who pleaded guilty or who were convicted after trial, and the evidence against whom included breath test results from the Alcotest 9510 device from June 1, 2011, through April 18, 2019, are entitled to a conclusive presumption of egregious government misconduct. They may proceed in motions to withdraw their guilty pleas, and motions for new trials, without having to establish egregious government misconduct in each case…and their breath test results are excluded from use at any subsequent trial.
However, the justices found that David failed to satisfy the second prong of the Scott-Ferrara test. In other words, they held that the breath test was not “material” to David’s acceptance of his plea. This was because of the overwhelming evidence that David had in fact committed the crimes he was charged with, including the OUI. Additionally, the generous charge concessions made by the prosecutor (dismissing 3 of the 5 offenses) made David’s agreement to the plea reasonable.
The full text of the opinion is attached below.