How Commonwealth v. Crump, Jr. Changes the Strategy for OUI Motions to Dismiss and New Trials

The Massachusetts Appeals Court’s decision in Commonwealth v. Charles Crump, Jr. (Docket No. 23-P-1425) represents a significant shift in how criminal defense attorneys should approach motions to dismiss and motions for new trial in OUI cases involving faulty breathalyzer tests. The ruling underscores the importance of evidentiary hearings before a judge grants a motion to withdraw a guilty plea and provides guidance on how to frame arguments regarding egregious government misconduct related to the Alcotest 9510 breathalyzer scandal.

This blog post explores how the Crump decision impacts defense strategy, including:

1. Key takeaways from the case

2. How it changes the approach to motions to dismiss OUI charges

3. How it affects motions for new trial based on faulty breath tests

4. Practical strategies for criminal defense lawyers handling OUI cases post-Crump

1. What Commonwealth v. Crump, Jr. Tells Us About OUI Appeals and Plea Withdrawals

The Crump case arose from a 2013 OUI conviction in which the defendant’s breath test results were later determined to be unreliable due to the Alcotest 9510 calibration scandal. Crump pleaded guilty to OUI (third offense) based, in part, on a breathalyzer reading of 0.14%, nearly twice the legal limit.

Years later, Crump filed a motion to withdraw his guilty plea, citing the Supreme Judicial Court’s (SJC) ruling in Commonwealth v. Hallinan (2023), which established a conclusive presumption of egregious government misconduct in OUI cases where the breath test results came from an Alcotest 9510 device calibrated before April 18, 2019. The motion judge granted the plea withdrawal without an evidentiary hearing, and the Commonwealth appealed.

The Appeals Court ruled that the motion judge erred in allowing the motion without first holding an evidentiary hearing, vacating the order and remanding the case.

Key Takeaways from Crump

✅ A hearing is required before granting a motion to withdraw a guilty plea.
✅ The defendant must show a reasonable probability that they would have rejected the plea and gone to trial if they had known about the breath test’s unreliability.
✅ Judges must evaluate the strength of the remaining evidence without the breath test before granting relief.
✅ A vague or speculative affidavit from plea counsel (“may have affected my advice”) is insufficient to support plea withdrawal.

This ruling impacts both motions to dismiss and motions for new trial in OUI cases involving faulty breath tests.

2. The Impact of Crump on Motions to Dismiss OUI Charges

A. The New Standard for Dismissing an OUI Case with a Faulty Breath Test

Before Crump, many defense attorneys routinely moved to dismiss OUI cases involving the Alcotest 9510 by arguing that the breath test was unreliable and thus insufficient to establish probable cause. However, Crump clarifies that a judge must consider the strength of all other evidence before dismissing a case or vacating a conviction.

B. How Crump Affects the Role of the Breathalyzer in Pre-Trial Motions

• If the breath test was the only significant evidence of impairment, a motion to dismiss is still viable, as the Commonwealth may not have enough remaining proof.

• If the arresting officer’s observations (slurred speech, unsteady gait, odor of alcohol) provide independent evidence of impairment, the motion to dismiss may face more resistance from judges.

• Crump reinforces that a defense lawyer must assess the totality of the evidence before filing a motion to dismiss—is there enough remaining evidence for the case to proceed?

C. Practical Strategy for OUI Defense Attorneys Filing a Motion to Dismiss

1. Challenge Whether There Was Probable Cause Without the Breath Test

   • Argue that without a valid breath test, the officer’s observations alone were insufficient to justify the arrest.

   • Highlight any inconsistencies in the police report or lack of clear impairment indicators (e.g., normal speech, no erratic driving).

2. File a Motion to Suppress All Statements and Field Sobriety Test Results

   • If the defendant admitted to drinking, argue that the statement should be suppressed if it was given before Miranda warnings.

   • Challenge the validity of field sobriety tests (FSTs), especially if performed under poor lighting conditions, on uneven ground, or without proper instructions.

3. Force the Commonwealth to Prove the Case Without the Breath Test

   • File discovery motions to demand all remaining evidence the prosecution intends to use.

   • If the remaining evidence is weak, reiterate that dismissal is warranted because the prosecution cannot meet its burden.

     3. The Impact of Crump on Motions for New Trial in OUI Cases

     For individuals who have already pleaded guilty or been convicted based on now-invalid breath test results, Crump significantly affects how defense attorneys approach motions for a new trial.

     A. Strengthening the Motion for a New Trial Under Hallinan

     Under Commonwealth v. Hallinan, defendants who pleaded guilty or were convicted based on Alcotest 9510 results prior to April 18, 2019, are entitled to a conclusive presumption of government misconduct. However, Crump clarifies that this alone is not enough to withdraw a guilty plea—the defendant must also show that the misconduct influenced their decision to plead guilty and that there is a reasonable probability they would have gone to trial had they known the breath test was unreliable.

     B. Crump Raises the Bar for Plea Withdrawals

     In Crump, the Appeals Court ruled that:
     ✅ Defendants cannot rely on vague or speculative affidavits from their previous attorneys stating that the faulty breath test "may have" influenced the plea decision.
     ✅ Judges must consider the strength of the remaining evidence before vacating a conviction.
     ✅ If the prosecution still had strong evidence of impairment apart from the breath test, the judge is less likely to grant a new trial.

     This means that defense attorneys must go beyond the breath test issue and present a compelling argument that their client would have gone to trial if they had known about the breathalyzer scandal.

     C. Practical Strategies for Defense Attorneys Filing a Motion for a New Trial

     1. Build a Strong Affidavit from Plea Counsel

        • The affidavit must be explicit: Instead of stating that knowledge of the breath test issue "may have" influenced their advice, plea counsel should affirmatively state:

          • "Had I known that the breath test result was unreliable, I would have advised the defendant to proceed to trial."

        • The affidavit should also detail how the breath test impacted the defense strategy at the time.

     2. Show That the Defendant Had a Viable Defense at Trial

        • In Crump, the court emphasized that without the breath test, the remaining evidence must be evaluated.

        • Defense attorneys should demonstrate that:

          • The officer’s observations were weak or inconsistent.

          • No field sobriety tests were conducted, or they were poorly administered.

          • The defendant had an alternative explanation for signs of impairment (e.g., medical condition, fatigue).

     3. Argue That the Plea Agreement Was Not Overwhelmingly Favorable

        • The Appeals Court in Crump noted that if a plea agreement was highly favorable (e.g., avoiding a harsher sentence in Superior Court), the judge may be less inclined to vacate the plea.

        • Defense counsel should emphasize that the plea was made under false pretenses—i.e., the defendant was misled into believing the breath test evidence was reliable when it was not.

     4. Demand an Evidentiary Hearing

        • Given Crump’s holding, judges will not vacate convictions without an evidentiary hearing unless the evidence overwhelmingly supports withdrawal.

        • Defense counsel should push for a hearing where the defendant can testify and plea counsel can explain how the breath test influenced the decision to plead guilty.

     4. Conclusion: How Crump Changes OUI Defense Strategy on Faulty Breath-test Cases

     The Commonwealth v. Crump, Jr. decision is a wake-up call for criminal defense attorneys handling OUI cases involving faulty breath test results. While the ruling does not eliminate the possibility of motions to dismiss or motions for new trial, it raises the standard of proof required to succeed.

     Key Takeaways for Defense Attorneys:

     ✅ Motions to Dismiss Must Address the Totality of Evidence – If the breath test is excluded, defense counsel must show that the remaining evidence is insufficient to sustain prosecution.
     ✅ Motions for a New Trial Must Prove a Reasonable Probability of a Different Outcome – The mere fact that a breath test was unreliable is not enough—defense attorneys must demonstrate that the defendant would have gone to trial.
     ✅ Evidentiary Hearings Are Now Essential – Crump makes it clear that judges must hear testimony and evaluate credibility before granting relief.

     For defense lawyers, Crump provides a clear roadmap for handling OUI cases post-conviction—it is no longer enough to simply cite Hallinan and argue that the breath test was flawed. Instead, attorneys must develop a strong, fact-based argument that considers the remaining evidence, the plea negotiation context, and the client’s actual likelihood of prevailing at trial.

     In the wake of Crump, the burden on criminal defense attorneys in OUI cases has shifted from merely identifying faulty evidence to actively proving how that evidence impacted case outcomes. While this presents a higher hurdle, it also provides an opportunity—attorneys who carefully construct their motions with strong affidavits, strategic suppression arguments, and detailed evidentiary showings will still have a powerful path to overturning wrongful convictions and ensuring that justice is truly served.