Recent Massachusetts Court Dates

In this podcast with Board Certified OUI lawyer Mike Bowser of Bowser Law, you can learn about possible OUI defense in Massachusetts courts and what to expect when you’re faced with an OUI in MA.

John Maher: Hi. I’m John Maher. I’m here today with Mike Bowser, a board-certified DUI defense lawyer practicing in Massachusetts and New Hampshire. Today we’re talking about OUI defense in Massachusetts courts. Welcome, Mike.

Mike Bowser: Good morning.

Recent Massachusetts Court Dates

John: Mike, what courts around Massachusetts have you had court dates out recently?

Mike: Oh jeez. Recently I’ve had enough trials in the last few months in Newbury Port, Oxbridge, which is down in Worcester County. I’ve been on trial in Brockton, Fall River and a number of courts across the state and my practice historically has always been one that I will travel to the corners of the Commonwealth. I’ve been out to Pittsfield and Greenfield and great Barrington, Holyoke –

John: Out in Western Massachusetts, yes.

Mike: I’ve been down the Cape and as I said, down on the South coast as well. A good defense plays anywhere.

What Approach to Take

John: Right. Is your approach different depending on what court you’re appearing on?

Mike: Well, some courts are different in the way that the judges run their trial sessions and obviously, there are opportunities in some courts where you may decide to go Jury waived, in front of a judge only, versus a jury of six people, and that requires a level of knowledge about who the judge is, who is sitting in a particular court on a particular day, and certainly I go to places such as Oxbridge or Holyoke or Great Barrington.

Those are courts that I don’t appear in every day. I do a ton of work through Middlesex, Essex County, I’m in Woburn courts all the time and I’m very familiar with everybody in those courts. If I go to a court that I’m not quite as familiar then, my job is to find out and get the knowledge that I need in order to make those decisions with my client and that’s easily done if you know who to talk to and the questions to ask. I think you can walk into any courtroom prepared to put on a vigorous defense regardless of where you’re from.

John: Do you know going into the court on a certain day what judge you’re going to be appearing before, or is it a surprise when you walk in the courtroom?

Mike: It’s not a surprise. There’s a list in and a schedule that is published publicly and I always check the schedule to see who’s going to be sitting in a particular court. But once you get to a courthouse and — I had a case this past year in Springfield and again, that’s a court that I don’t go to every week or month. I may be out there once or twice a year and there’s several judges in Springfield and you don’t know which one of those four or five judges will be sitting in the particular trial session.

Oftentimes you end up in a trial session, you tell them that you’re ready for trial and you get sent out to a different session in front of a different judge. So who’s sitting on the bench in a particular courthouse, that’s general knowledge but depending on the courthouse. I was in a courthouse this past week where there’s only one judge, and I knew who that judge was going to be. There’s no question that’s who’s going to be sitting that particular day. But in the bigger courts, the busier courts, you might have four or five judges and they rotate through the trial session. So sometimes you don’t know until the day of the trial who will be sitting in that trial session.

John: Have you noticed differences in the way that different courts or different judges approach OUI charges in Massachusetts?

Mike: No. They all follow the law as they’re required and they all give you a trial whether it’s a jury trial or a bench trial, according to the rules of Criminal Procedure and the rules of evidence. I’ve found a high level of consistency from one court to the next and I’ve always enjoyed trying cases in new courts and different courts just because you get to experience [and] meet different people. But most of the time, the process in and of itself, the defensive if you know your OUI case, whether it’s bench or a jury trial, is very similar from one County to the next, from one courthouse to the next.

What Individuals Charged with an OUI Can Expect

John: What does that mean for people who are charged for an OUI offense? That basically they’re going to get a fair trial and it doesn’t make too much difference where they’re being tried?

Mike: I think in some courts there may be — there might be a benefit because of a particular judge that might be in a particular court. But like I said, it’s pretty consistent throughout the Commonwealth. I think it’s very important that you have a lawyer who can try the case to a verdict, whether it is Springfield or Brockton or Newburyport. If you’re prepared and you know what you’re doing, you should be able to walk into a courtroom anywhere in the Commonwealth and get a good result and have a fair process.

John: Do you think that that’s an advantage for you, as I know you’re a defense lawyer, that you do travel all around the state and that you do have experience in all these different courts?

Mike: It’s given me a certain comfort level and a level of confidence that I think is helpful to my clients. So yes, I’ve always enjoyed, as I said, going to different places as opposed to being stuck in the same court day in and day out. I think that you could certainly get into a rut if you are working in the same place every day, and I think that that variety and diversity has really helped me and it’s built my confidence and it’s built my ability to try a case anywhere.

John: All right, that’s great information. Thanks again Mike for speaking with me today.

Mike: Thank you.

John: For more information about Mike Bowser, visit, or call 888-526-9737.

What to Expect After an OUI Arrest in Massachusetts

Board Certified OUI attorney Mike Bowser of Bowser Law discusses how to choose a lawyer for OUI defense in MA and what you can expect during the legal process.

John Maher: Hi, I’m John Maher. I’m here today with Mike Bowser, a Board Certified DUI defense lawyer practicing in Massachusetts and New Hampshire. And today, we’re talking about choosing a lawyer for OUI defense in Massachusetts. Welcome, Mike.

Mike Bowser: Good morning. How are you?

What to Expect After an OUI Arrest in Massachusetts

John: Great. Thanks. So, Mike, what can you expect following an OUI arrest in Massachusetts? And then, how you go about finding and choosing a lawyer for OUI defense?

Mike: Sure. Most OUI arrests in Massachusetts, and when I say most, the vast majority of OUI arrest are first offenses. The person being arrested has little or no prior criminal record. Probably has never been arrested before. In following an OUI arrest, you are brought to a police station or a barracks. If there is a booking process, you may or may not submit to a breath test.

But typically, a bail commissioner would be brought into that booking area within [an] hour or two after your arrest, and they’ll go through your record if you have any, where you live, where you work, those types of questions, and you’ll be released on your personal recognizance. And personal recognizance just means you’re released on your promise to appear in court.

In Massachusetts, if you’re arrested on a weeknight, you’re going to be appearing in court most often the next morning, the next morning being the first available court date for your arraignment. If it’s a weekend, then you can expect to be given a date to appear the following Monday or Tuesday if you’re arrested over the course of the weekend.

The exception to that rule is if there’s an extensive record; it might be your third or fourth offense. Under Melanie’s Law and a lifetime look back, then they may set a cash bail and require that you come up with some sum of money before you are released from the police custody. And again, that’s typically only when you have an extensive record or some type of long criminal background.

John: So you’re not spending the night in jail than usually?

Mike: Typically not. Usually, if the arrest occurs between 11 at night, 10 at night, even until one or two in the morning, a bail commissioner will be called out. You pay them a $40 fee and they will release you on personal recognizance with instructions to appear in court the next day. If it’s getting very close or into the morning hours where it’s six, seven o’clock in the morning already, a lot of the police departments will just hold you and then, bring you to court directly the next morning where you would be held in custody then brought to the courthouse the next day.

When to Contact a Lawyer for OUI Defense in MA

John: Is it important to call your attorney right from the police station or from jail or immediately after your released, the first thing you should do is get on the phone to your attorney?

Mike: In Massachusetts, the arraignment process the next day in court is standardized. Meaning when you go to court the next day, you check into the probation department. You show them the piece of paper that the bail commissioner gave you. That lets the probation department know who you are and what the charges are. And then you proceed to an arraignment session after checking into probation. And in the arraignment session, the judge and the clerk will call your case and they will tell you with that arraignment, that you can either apply for a court-appointed lawyer, if you qualify, or you can hire your own.

But the only thing the court is going to do at your arraignment is enter a not guilty plea on your behalf, and then instruct you to come back for a further date, usually several weeks out for a pre-trial conference with the lawyer of your choosing or with the court-appointed lawyer if they’ve given you a court-appointed lawyer and you qualify. In my experience, it is not necessary that you hunt down an attorney in the wee hours of the morning to represent you the next day at the arraignment. You really shouldn’t rush to try to find someone for a process that really doesn’t require an attorney.

John: If you’re there without an attorney, do you need to make sure that you put in a plea of not guilty?

Mike: The court will do that routinely.

John: That’s just a routine thing.

Mike: The only thing the court wants to do is enter a not guilty plea on your behalf. Give you the opportunity to leave and then make a decision as to hiring your own attorney.

How to Choose an OUI Lawyer

John: Okay, so then, the next step would be going and finding, and on choosing a lawyer for your OUI defense. How do you do that in Massachusetts?

Mike: Well, I can tell you from experience that people obviously spent a lot of time on the internet searching for an attorney, and I think it is critically important. It is so very important in Massachusetts that if you’re going to defend the OUI case, meaning you’re going to fight it, [if] you don’t want to plead it out [and] you don’t want to have that OUI on your record for the rest of your life, then you need to find a qualified trial lawyer. An attorney who can defend that case through a jury trial or through a bench trial to a verdict. And that’s a long and arduous process.

It’s not easy. That’s the hard way to do things. And that is essentially what my practice is built upon, which is going all the way through to the end of a verdict in defending the cases vigorously as hard as I can from beginning to end. That being said, you don’t just pick up the phone and call the first lawyer that you can find because not every lawyer is qualified to defend an OUI case. It requires a level of experience and expertise, and you should be looking for a lawyer who has a very, very long track record of successfully defending OUI cases through the trial process.

John: I think a lot of people might think, “Oh, the first thing I need to do is call my uncle who is a lawyer,” or something like that, or, “I have a family friend who knows somebody who is a lawyer.” But you’re saying that most lawyers maybe don’t know how to defend an OUI charge.

Mike: Lawyers are like any other profession. For instance, doctors, there are neurosurgeons, there are podiatrists, there are gastroenterologists. There are various types of specialties within any profession. Within the lawyer profession, there are certainly criminal defense lawyers and then even within that group, there’s even a smaller group of people that are very experienced in OUI, DWI, DUI defense.

And I can tell you from experience that I’ve had plenty of folks that have called up their cousin, their uncle, their brother-in-law, who is a real estate, divorce, [or] bankruptcy lawyer and the best thing that that lawyer family friend of theirs can do is refer them to someone like myself. And I get plenty of those types of referrals for that reason because it is my niche.

The Importance of Choosing a Lawyer with Experience

John: Right. So is it important to hire then a lawyer with OUI experience from Massachusetts if you’re charged with an OUI in Massachusetts?

Mike: Absolutely. Massachusetts is really is set up that you only have two choices. You’re either going to plead the case out and receive the minimum mandatory penalty, especially with a first offense, and if that’s the route that you’re going to go, then you don’t really have to be quite that choosy because anybody can walk you into a courtroom, plead you out and get you the minimum mandatory penalties.

Option number two is you’re going to fight it. And that means you’re probably going to end up in front of a judge or a jury of six people in a District Court at a trial. And if that is the route that you’re going to go to protect yourself and to protect your interest, then you absolutely need to find a lawyer who has experience at trying these cases to verdict.

John: All right. That’s great information, Mike. Thanks again for speaking with me today.

Mike: Thank you.

John: And for more information about Mike Bowser, visit or call 888-526-9737.

Automatic License Plate Recognition

There has been no shortage of debate, frustration, and outright paranoia over government use of surveillance equipment in recent times, and Americans’ reasons for suspicion seem to be constantly growing in number. A tool in the U.S. government’s arsenal that recently has become more commonly used is the automatic license plate reader (ALPR). This device, usually mounted in pairs on the back of police cruisers or on traffic lights at major intersections, is capable of capturing images of license plates automatically. The images captured can then be immediately saved and cross-referenced with a variety of databases that might contain the average citizen’s information. Even from a basic description, one can see how technology like this might be prone to abuse. In examining the variety of potential and confirmed uses of this technology, it is clear that public concern is warranted.

ALPRs have been around for some time, however recently their deployment has become far more widespread. According to a report done by the Police Executive Research Forum (PERF) about 71% of all police departments in the United States utilize ALPRs as of 2012. As mentioned they tend to be found on the back of police cruisers and at major intersections, however they are not limited to those locations. The devices can be mounted anywhere on any road and are constantly photographing license plates. The cameras themselves are highly advanced; recent models are able to capture license plates of any style under any lighting condition and they can capture a lot of them. In 2012, the town of Grapevine, Texas reported that its police department on average captured the images of 14, 547 unique plates a day and had over 2 million plates stored in their database. Some individual ALPRs mounted on highway overpasses are capable of capturing the license plates of every vehicle that passes underneath them.

Since these ALPRs are deployed widely and take thousands of images every day, it is very difficult for any car to avoid detection. On the positive side of things this technology can help police officers track down missing persons, suspected or known felons and terrorists, sex offenders, or those in violation of their parole. The negative side is that the ALPRs send images of all the license plates they capture to police databases where they are saved regardless of whether or not the plate belongs to a person the police are looking for. Given the widespread deployment of these cameras it is likely that images of most people’s (at least those in urban areas) license plates are stored in a police database. Saved with the license plate number are the location, date, and time of image taken, which allows for officers to track the movement of any car. In some towns and cities officers can also input known license plates into their cruiser’s computer and receive alerts when the plate gets captured by a camera. This plethora of information that is available to the officers certainly makes it hard for wanted or suspected criminals in previously identified vehicles to escape detection, however it could have a variety of other less ideal uses.

Given the fact that the ALPRs store the information of every plate they capture, a list of troubling possibilities has been developing as the use of this technology has become more universal. Since these databases hold so many license plate numbers for indefinite amounts of time, were that data be leaked accidentally the effect could be enormous. As for police use of the data, officers could establish patterns of travel and driving habits for any given person. From there they could obviously deduce things like where one goes to church, where they get medical care, or whom they associate with. In other words, all of the things we tend to keep to ourselves and those we are acquainted with. When it comes to the alert feature, any officer could potentially use the alerts to track down anyone they want provided they know the person’s plate number. An officer could also use the alert system to deal with personal affairs that have no bearing on police matters whatsoever.

These concerns are not just speculation, some of them have already occurred in practice. Recently the Boston Police Department suspended its ALPR program after the license plate numbers of 68,000 individuals were accidentally leaked to the Boston Globe. Fortunately there were no negative consequences since the Globe was the only institution that received the leak, however the occurrence of such incident suggests that the information might not be perfectly secure and that future leaks could occur. In New York it was reported that some officers used ALPRs in unmarked vehicles and drove around local mosques in order to catalog the license plates of those in attendance. This shows clearly that not only are these devices a threat to privacy, but that they also serve as a potential tool to enable improper police work. Given these incidents and those that could potentially occur it is clear that police use of ALPRs needs to be reevaluated and put under stricter scrutiny.

What Do Defense Lawyers Do?

What do defense lawyers do? Well, in the context of a DUI charge, a defense lawyer should do everything he or she can to protect the client.

I begin every client intake meeting by explaining Attorney/Client privilege, confidentiality and the fact that I am in the Protection business, not the Judgment business.

A DUI defense lawyer’s only job is to protect the interests of the client within the ethical rules that apply to each case. It is the prosecutor’s job to prove the case and it is the Court’s job to preside over the proceedings, make appropriate rulings of law and impose sentence. A defense lawyer must consider such factors as potential loss of license, potential incarceration, fines, alcohol education/counseling and reciprocity issues that may apply across jurisdictions, when the client is a resident of Massachusetts, for instance, and he/she is facing a DUI charge in New Hampshire. A defense lawyer must properly advise a client of potential consequences so a client can make voluntary decisions regarding his/her case. The classic example is whether a client decides to proceed to trial or enter a plea. This can only be done when a defense lawyer has provided the best information and advice to allow the client to make an intelligent decision, knowing the facts, the law and the risks of proceeding to trial versus entering a plea.

A DUI defense lawyer will act as a shield for his client against the prosecution, and he will act as communicator for his client to the Court. The defense lawyer should seek to protect his client by challenging the prosecution at every turn on every possible issue. A defense lawyer should challenge the admissibility of evidence and assert all constitutional and/or statutory and/or administrative rule based violations. For example:

  • Did the arresting police officer have reasonable articulable factual grounds to initially stop and seize the client:
  • Did the arresting officer have probable cause to arrest the client;
  • Were field sobriety tests administered according to the officer’s training and the National Highway Traffic Safety Administration (NHTSA) standards;
  • Can evidence of a field sobriety test be excluded, Horizontal Gaze Nystagmus evidence is admissible in New Hampshire, but not in Massachusetts;
  • Is evidence that the client refused to participate in field sobriety tests or a breath test admissible;
  • Was the breath test accurate, and were the proper procedures followed during the administration of the test, to include and observation period following correct implied consent process;
  • Is the blood test admissible, whether it be a hospital lab test, or a forensic sample from the state laboratory;
  • Can the prosecution prove a prior offense, can a prior offense be vacated because of a faulty plea process;
  • What is the penalty that applies to this particular case if there is a conviction following plea or trial;

Negotiations with the prosecution, on behalf of a client, are constantly taking place, even as the defense lawyer challenges the government’s case. Negotiating from a position of strength benefits the client. When a defense lawyer is prepared to try a DUI case to verdict, and the prosecution knows it, the prospect for a favorable plea resolution increases. When a plea option does not benefit the client, and a case must go to trial, the defense lawyer becomes the ultimate advocate, trying a case to verdict, hopefully a “not guilty” verdict.

Why do I need an attorney in a criminal case?

If you were charged with a crime and you find yourself before a court in Massachusetts or New Hampshire, my advice to you is don’t ever go to court without a qualified attorney. You need someone like myself to go to court with you each and every time. The collateral consequences of a criminal conviction can affect so many other aspects of your life. You can lose your ability to gain financial aid as a student, public housing. You could lose your right to carry a firearm or your license to carry. You could lose your driver’s license, you could lose your commercial driver’s license. You could be denied the right to obtain citizenship. There are so many collateral consequences to a criminal conviction that you absolutely need to go to court with a qualified attorney to protect your rights. There are rules of evidence, there are rules of procedure, that apply to each and every case. And without a qualified attorney, you’re going to lose the ability to effectively defend yourself before a court.

DRE Drug Evaluations: Are the Opinions of Police Admissible in Court?

Not all suspected OUI infractions involve alcohol, but in the past, police officers who performed vehicle stops due to erratic driving were limited by their inability to test drivers for substances other than alcohol. The Drug Recognition Evaluation (DRE, also drug recognition expert) was developed in 1979 by the LAPD to give law enforcement in the field a reliable means of testing for substances other than alcohol upon encountering an incapacitated driver who tests negative for alcohol. The drug recognition expert follows a 12 step protocol designed to effectively determine not only if a suspect is under the influence of a substance other than alcohol, but also what that substance is.

DRE in the Courtroom

Numerous cases have upheld the admissibility of DRE testimony in the courtroom, which suggests that the underlying theories of the Drug Recognition Evaluation program are sound. However, it has been argued that a critical examination of the DRE using the Frye and Daubert-Kumho tests for the admissibility of scientific evidence, drug recognition expert testimony should not be used as evidence that a driver was operating a vehicle under the influence of drugs.

In either case, it should be noted that there have been many OUI cases where the testimony of the DRE was admissible, but the prosecuting attorneys were barred from referring to the DRE certified officer as an “expert,” even though it was acknowledged that his or her testimony was more informed than that of a layperson. For example, in a 1997 case, Judge Joan G. Seitz ruled that “reference to the trained police officer as an ‘expert’ in the presence of a jury would be a comment on the evidence and would lend undue weight to one person’s testimony and credibility.”

Currently, whether or not DRE testimony is admissible in the courtroom is decided on a case by case basis by the presiding judge.

The Case for Admitting DRE Testimony

Those who argue in favor of admitting drug recognition expert testimony often cite its basis in science, the longevity and usefulness of the program, and the fact that the protocol errs in favor of the subject being tested. In 1997, Judge Ronald Kessler observed that “Lay witness in Washington may testify to an opinion of alcohol intoxication… The plaintiff has established that a police officer trained in drug recognition protocol is more than a lay witness, i.e., has greater expertise in recognizing the physiological effects of certain controlled substances than the average citizen.” Similarly, Judge Joan G. Seitz stated that “The DRE protocol relies upon a series of tests taken from other scientific and medical specialities. The technique is not novel. It simply relies upon a specific series of tests used for other purposes and relies upon the trained observer to interpret the behavior demonstrated by the subject. The subjective interpretation of the expert is qualified through training and the expert’s conclusions are measured against the toxicological analysis of the subject’s urine.”

The Case Against Admitting DRE Testimony

Opponents of DRE admissibility often argue that while the basic scientific and medical procedure is sound, the individuals performing the Drug Recognition Evaluation are police officers, not trained scientists or medical professionals. Furthermore, though the DRE protocol has been in use for more than 30 years, no formal evaluation has been performed so the drug recognition evaluation program continues to be an experiment rather than a proven law enforcement tool. In 1992, a Baltimore judge ruled DRE testimony inadmissible, stating that “there is [not] a relevant scientific community whose general consensus is that the Drug Recognition Program with nothing else is sufficiently reliable to indicate that one is under the influence of a specific drug or even a specific category of drugs.”

It is precisely criticisms like these that make it vital that anyone who has undergone a DRE evaluation needs to hire an experienced attorney ready, willing, and able to challenge the admissibility of the DRE opinion and protocol outside and inside of the courtroom based on the current state of the law as it relates to scientific evidence and expert opinions.

OUI attorney Michael Bowser has years of experience successfully defending those accused of drunk driving in Massachusetts and New Hampshire. If you have been charged with an OUI in Massachusetts or New Hampshire or have questions about OUI penalties in either state, it is vital that you talk to representation who understands the law. Call Attorney Michael Bowser today at 1-888-5BOWSER to discuss DUI penalties and your individual circumstances.

What is a CWOF?

A CWOF is a continuance without a fining. You will see on a CORI, which is your Criminal Offender Record Information, or your BOP, your rap sheet, the letters CWOF, and that stands for continuance without a fining. What that means is that you’ve entered a plea, you’ve made an admission to the court that there is sufficient evidence to result in a guilty finding, however, based on either your lawyer’s recommendation or the prosecutor’s recommendation the court, being the judge, agrees to continue the matter without a fining for a period of time. And a guilty finding does not enter on your court record or on your CORI record. That’s significant and important because under state law, it’s not considered a criminal conviction. So you can avoid a criminal conviction by obtaining a continuance without a fining. During that one year that it’s continued, your placed on probation, your subject to restrictions and conditions and if you violate the terms and conditions the CWOF can be vacated and a guilty finding entered on your record. So you can lose the benefit of the continuance without a fining if you violate the terms of your probation. In an OUI first offense, the most common disposition that you see by way of a plea is a continuance without a fining under the section 24 D of Chapter 90 the drunk driving statute.

People will oftentimes come in to see me on a second offense, OUI or DUI, and say to me “I had a continuance without a fining 6 years ago or 12 years ago, it’s not a conviction.” It is, for purposes of a drunk driving second offense, a conviction. The continuance without a fining is treated by the courts and the registry of motor vehicles as your first drunk driving offense, regardless of whether it’s continued without a fining or not. For that reason, I am not a person who is in favor of walking into court, pleading clients out and getting a continuance without a fining on a typical first offense. I would rather try that case, obtain a dismissal or an acquittal of not guilty, and if a guilty enters, the penalty is, in all likelihood, going to be exactly the same, the only difference being it’s a guilty fining vs. a CWOF. The reason being that continuance without a fining is going to be treated as your first offense for the rest of your life and under Melanie’s Law, you’ve then given away a conviction, a first offense, that will be used against you, possibly for the rest of your life if you were ever to be charged again with a drunk driving offense.

Why should I exercise my right to remain silent?

It is in your best interest if you are placed in police custody, or if you’re in a position, even at roadside, where you’ve been pulled over and an officer is asking you questions, you have the right to remain silent. You do not have to answer questions that are out to you. And I think very often people feel obligated by, whether it’s a guilty conscience or they think it’s the right thing to do to always cooperate and provide information to the police, it’s not in your best interest. You’ve heard the expression “everything you say can and will be used against you,” that is exactly what will happen. If you were at road side, if you’ve been pulled over, if the police begin to ask you questions, you should not answer the questions because everything that you say can and will be used against you. It will be construed and looked at from the perspective of an arresting officer who is making the arrest for a prosecution that’s going to come later. Everything you say will be included in this report, and if it’s damning, if it affects you adversely, it will certainly make it’s way into the report and into the courtroom. If you refuse to answer questions, if you exercise your right to remain silent, that’s not admissible, they can’t use that against you in a courtroom, the fact that you’ve exercised your constitutional right to remain silent. It’s always in your interest to be cooperative, to be polite, not to be belligerent, not to give the police a hard time, but at the same time, it’s not in your interest to answer questions. The less you say, the better. As I said, be cooperative, polite, but keep your mouth shut, don’t answer questions, and then talk to an attorney.