In April 2023 the SJC, in Commonwealth v. Hallinan, ruled that convicted OUI defendants could seek a retrial if the evidence against them included breathalyzer results from the defective Alcotest 9510 device taken between June 1, 2011 and April 18, 2019.
(See my post SJC: Drunk Driving Defendants Who Pleaded Guilty or Were Convicted Based on Alcotest 9510 Breathalyzer May Demand a Retrial.)
The Hallinan decision triggered a tsunami of motions from former OUI defendants seeking to vacate their convictions.
Many of these Hallinan motions were submitted with no more than affidavits from the defendants stating (1) that they submitted to the defective breath test during the stated timeframe and (2) that the bogus test results made a material difference in the outcome of their case.
This month the Appeals Court issued a ruling requiring judges (in most cases) to hold an evidentiary hearing prior to allowing Hallinan motions.
An evidentiary hearing is one in which witnesses (such as the OUI defendant) are called to testify under oath.
The key language of the opinion is as follows:
although a judge has discretion to deny a new trial motion on the affidavits, a judge’s power to grant such a motion on the papers is more circumscribed. Generally, where a substantial issue is raised and is supported by a substantial evidentiary showing, the judge should hold an evidentiary hearing. Holding an evidentiary hearing provides the Commonwealth the opportunity to challenge the evidence presented in the affidavits, and it enables the judge to make the findings of fact required to decide the motion. To be sure, though granting a new trial motion without an evidentiary hearing is unusual, an evidentiary hearing may not be necessary . . . if the substantial issue raised is solely a question of law, or if the facts are undisputed in the record. If there is an issue of fact, it is the defendant’s burden to prove facts that are neither agreed upon nor apparent on the face of the record. (Citations and quotations omitted.)
The full opinion, Commonwealth v. Crump, is attached below.