What Happens If I’m Stopped for DUI or DWI?

Dean Contover: I’m driving down the road. I’m stopped- I’m allegedly stopped for DUI, is that what they call it?

Mike Bowser: In Massachusetts, they refer to the offense as OUI because our statute says “Operating Under the Influence”. In New Hampshire, they commonly refer to it as DWI because the statute the law says “Driving While Intoxicated”. Other states, “Driving Under the Influence”. So DUI, OUI, DWI are all the same thing, they are all drunk driving.

Dean: Same thing. Okay. All right. I’m going down the road, I’m stopped, pulled over, what happens? Because I don’t know what happens.

Mike: What happens typically is an officer is going to approach the vehicle and he’s always, depending on what the reason for the stop is, whether it be a tail light is out, you roll the stop sign, you’re weaving over the lines, whatever it may be. An officer is always going to approach cautiously and he’s going to ask you for license and registration. Typically engage you in a few routine questions, “Where you’re coming from, where you’re going, do you know why I stopped you?”

And if there’s any indication to that officer, that you have either consumed alcohol or that you’re impaired by drugs or alcohol, typically upon returning to his vehicle to check your license and your registration for outstanding warrants, to make sure everything is current, he’ll usually call for backup, maybe a second cruiser will arrive and he’ll ask you to step from the vehicle to participate in field sobriety testing, which are standardized roadside exercises or maneuvers that officers are trained to utilize to detect an impaired driver.

And then based on the results of those tests, in the conversation at roadside, you could be placed in custody, brought to a barracks or a local police station, and there they’re certainly going to ask you to submit to a chemical test, breath, blood, sometimes urine but typically what you’ll see is a request to take a breath test.

Do You Have To Take The Field Sobriety Tests?

Dean: Okay. So do you have to take those tests, once you stop?

Mike: In Massachusetts, in New Hampshire, the two jurisdictions where I practice, what’s interesting is, you have an absolute right to refuse to take a field sobriety test. And often, I wish my clients would have exercised that right because they’re terribly difficult to pass under the very best circumstances. They’re literally balance, coordination, being able to recall minute details.

Dean: The Alphabet?

Mike: Well, it’s not just the alphabet, they’re difficult exercises. I believe that they’re designed to fail. They’re rote and familiar activities for one group of people, one group only, police officers. For the rest of the world, the rest of the motorists that out there, they’ve never seen them, they’ve never been exposed to them. And when they’re asked to participate, it’s possibly 2:00 in the morning, in a breakdown lane on Route 93 Northbound, in Wilmington, whatever it may be, it’s a tough situation to find yourself in. You have an absolute right to refuse to take those tests.

Consequences of Refusing a Field SobrietyTest

However, in Massachusetts and New Hampshire, the police officers are not obligated or required to tell you that. And what’s interesting if you refuse to participate in field sobriety tests in Massachusetts, that refusal is inadmissible in a courtroom. Meaning, an officer doesn’t get to go in front of a judge or a jury at trial and say, “I asked Mr. Contover to take a field sobriety test but he refused.” That doesn’t come in in Massachusetts. In the Hampshire, it does.

And in Massachusetts, if you’re offered the breath or a blood test, and you refuse to take the chemical test…

Dean: A blood test…

Mike: Or whatever the chemical test is. If you refuse that chemical testing in Massachusetts, the refusal is inadmissible in Massachusetts. So they don’t again go before the judge or the jury, at trial and say, “I asked Mr. Contoverr to take a breath test, he would not take it.” In New Hampshire, it does come in.

Now Massachusetts, the Commonwealth, is one of the very small minority of jurisdictions where the refusal evidence is inadmissible. I think we’re one of only three jurisdictions in the country. And you have to deal with that at trial. There’s an instruction in the courtroom in Massachusetts called the “Downs Instruction,” Commonwealth v. Downs, where a judge many years ago in the Ayer District Court, instructed the jury that there is no evidence of a breath test in this case, therefore you shall not mention it, do not talk about it in your deliberations, put it entirely out of your mind and do not hold it against the Commonwealth or the defendant that there isn’t that evidence in this case. It’s not part of the evidence. Which is a good instruction because I think most jurors going into a jury pool and jury service, are automatically going to assume there’s a test or why isn’t there a test.

And I’ve had the experience where a judge has refused to give the Downs Instruction, I said, “Your Honor, if you don’t give it, they’re going to ask a question about it”. And he disagreed with me and 20 minutes later, the question from the jury in writing was, where is the breath test? And by that time, cat out of the bag, they’ve already been back there, deliberating and talking about it and that’s not what I want to happen. I want them to focus on the evidence that they do have as opposed to speculate about evidence that they don’t.

But in New Hampshire, you have to deal with that refusal evidence and you need to explain it.

The Statutory Rights Form or Administrative Suspension Form

Dean: Now, when you refuse it, do they give you a piece of paper to sign?

Mike: Yes. We would refer to it as the Statutory Rights Form in Massachusetts. It’s called the Administrative Suspension Form in New Hampshire. And it essentially sets forth that you’re under arrest. You’re being asked to submit to a chemical test. There are consequences to your decision to take it. If you’re over .08 there is a consequence to your decision to refuse, if you decide to refuse, which is loss of license as well. Being advised of these rights, what do you want to do? And then you sign indicating that you’re either going to take the test or you’re going to refuse it. Sometimes people refuse to sign any paperwork because they say, “I’m not touching anything or signing anything without a lawyer.” And interestingly enough, in both jurisdictions, Mass and in New Hampshire, the case law is very clear. You’re not entitled to a lawyer during that administrative process. If you were in a courtroom, certainly you would be, but at that station when you’re asked to make that decision, there’s no right to consult an attorney at that point. So they ask you to sign indicating that you’ve been advised to make a decision and then…

Dean: Well, how long is the piece of paper – is it detailed, is a legalese?

Mike: It’s very legalese. New Hampshire has the highest refusal rate in the country and I’m convinced that one of the reasons is that that Administrative Suspension Form as written is very legalese, it’s not well written, it’s not plain English, it’s not easily understood. The first sentence is, “You are under arrest for acts that are alleged to have been committed while driving under…” and people are like, “What does that mean? Am I charged or not?” And oftentimes, it just leads to more confusion.

And in New Hampshire, a typical first offense, to keep it easy, a typical first offense, if you’re already under arrest, you’re already charged with DWI, if you take the test and you blow over, you lose your license or privilege for 180 days. If you refuse to take the test, you lose your license or privilege for 180 days. So there’s no justification right out of the gate to take it. Whereas in Massachusetts, the statute has changed drastically. If you take the test and you blow over, it’s a 30 day loss of license. That’s it. Whether you have one prior, two priors, three priors, four priors. If you refuse the test, it’s a 180 day loss of license. And if you have priors, that chem refusal suspension is graduated, so that if you have one prior, it’s a three year loss of license, if you have two priors, it’s a five year loss, if you have three priors, which many people do going back over decades, into the 70s, in the 80s and the 90s, it’s a life time loss, just for the refusal.

So the form in Massachusetts says, “If you refuse, your license shall be revoked for a period of 180s days up to life.” And that’s how they explain that graduated suspension.

Dean: If it’s a first time offense, would you tell somebody to refuse it?

Mike: Well, I never get the opportunity to be involved in their decision making process. As a defense lawyer, I would prefer, the perfect defense for me…

Dean: I hate to put you on the spot.

Mike: No, it’s okay. And I get asked all the time. I mean, as a defense lawyer, I would prefer that my client exercise his right to refuse the field sobriety test and exercise their right to refuse the chemical test. However, I don’t have to live with the consequence of that decision on the breath test. My client, if he or she exercises her right to refuse, is going to be left without the ability to drive for a period of 180 days up to lifetime.

In Massachusetts, the only way to vacate or get rid of that CTR, the chem test refusal suspension is an acquittal or an outright dismissal of the criminal complaint. So oftentimes, on the subsequent offense, second and third offenses, with three year CTRs, five year CTRs, I am going in with every ounce of my energy trying to get an acquittal, so that I can then ask the judge, because the law says in Massachusetts, if you are acquitted or the complaint is dismissed outright, you’re entitled to have the judge order the registry to give your license back from the chem test refusal. It’s discretionary; the burden is on the government, the prosecutor, to show that you’re a public safety risk. Otherwise, if they can’t, then upon the acquittal, I’m getting the license back for people. So ideally and again…

Dean: But what happens is, when you go to court, I mean sometimes, it’s two or three months out anyway. I mean in regards to…

Mike: Sometimes, it’s 12 to 18 months. Depending on what venue you are in. By way of example, the Ayer District Court has one judge, not two anymore. That one judge conducts trials only on Mondays and Tuesdays. So it oftentimes takes in excess of 12 months to get a jury trial date in a court like Ayer. Some of the busier courts, Lawrence, Woburn, Lowell, Peabody, Lynn — I bounce around quite a bit — every one is different and it’s based on the number of cases, the number of judges and the number of days that they actually hold jury sessions. Now there are certainly courts where you can rocket-docket it, if you really wanted to get it done quickly, but it’s typically several months minimum, before you get a trial date.