Criminal Defense Archives

DUI: The Difference Between the New Hampshire DMV and Criminal Court

Getting arrested for a New Hampshire DUI is undoubtedly one of the most stressful and overwhelming experiences a person can face. In the immediate aftermath of an arrest, your mind is likely racing with questions about potential penalties, the status of your driver’s license, and the sheer embarrassment of dealing with the legal system. However, what many people do not realize is that a DUI charge in New Hampshire actually triggers two entirely separate legal proceedings.

Understanding how the legal process works early on can save you a tremendous amount of anxiety. In this comprehensive guide, you will learn exactly how the Department of Motor Vehicles (DMV) administrative process differs from the criminal court process. By understanding these distinct paths, including their different standards of proof and constitutional protections, you can take control of your situation and work with your legal team to build a comprehensive defense strategy.

The Parallel Paths of a New Hampshire DUI

When you are arrested for driving under the influence (DUI) or driving while intoxicated (DWI) in New Hampshire, you are immediately thrust onto two parallel tracks. The first track is the criminal case, which takes place in a New Hampshire state court. The second track is a civil proceeding managed by the New Hampshire Department of Safety, specifically the Division of Motor Vehicles (DMV).

These two processes operate independently of one another. You can win your criminal case but still lose your license at the DMV, or vice versa. The criminal court is primarily concerned with punishment for a crime—which can include fines, mandatory classes, and even jail time. The DMV, on the other hand, is solely concerned with your driving privileges through a process known as Administrative License Suspension (ALS). Understanding that you must fight two separate battles is the first step in protecting your future.

The Administrative License Suspension (ALS) Process vs. Criminal Court

The Administrative License Suspension (ALS) process is triggered the moment you either refuse a breathalyzer or blood test, or submit to a test that registers a blood alcohol concentration (BAC) of 0.08% or higher. Under New Hampshire’s implied consent laws, this results in an automatic suspension of your driver’s license, typically taking effect 30 days after your arrest.

To fight this automatic suspension, you must request an administrative hearing within a strict 30-day window. This hearing takes place before a hearings examiner at the Department of Safety, not a judge.

Conversely, the criminal court process begins with an arraignment. Fortunately, as an experienced defense attorney, I can often file a “Waiver of Arraignment” on your behalf. This allows you to bypass the initial court appearance, protecting your employment and keeping you out of the public eye while we enter a plea of “Not Guilty” and begin the discovery process. However, whether your arraignment is waived or not, the criminal case will proceed to pre-trial conferences and potentially a trial before a judge or jury.

Understanding the Standards of Proof: Preponderance of the Evidence vs. Beyond a Reasonable Doubt

One of the most critical differences between these two venues is the burden of proof required to rule against you.

In a criminal courtroom, your freedom is on the line. Therefore, the State must prove that you committed the crime of DUI “beyond a reasonable doubt.” This is the highest standard of proof in the American legal system. If your defense attorney can introduce any reasonable doubt regarding the legality of the traffic stop, the accuracy of the breathalyzer, or the administration of field sobriety tests, the judge or jury must acquit you.

The DMV operates under a drastically lower standard. At an ALS hearing, the standard of proof is a “preponderance of the evidence.” This simply means that it is “more likely than not” (or 51% likely) that the events occurred as the police officer reported them. Because this standard is so low, it is significantly easier to lose your license at the DMV than it is to be convicted of a DUI in criminal court.

What the DMV Must Prove: Scope of the Administrative Hearing

Because the ALS hearing is a civil matter focused solely on your driving privileges, the scope of the hearing is highly restricted. The hearings examiner is not determining if you are guilty of a crime. Instead, they are only looking to answer a few specific questions:

Did the police officer have reasonable grounds to believe you were driving under the influence?
Were you lawfully arrested?
Were you properly advised of your implied consent rights?
Did you refuse the chemical test, or did you submit to a test that showed a BAC over the legal limit?

If the hearings examiner finds that the preponderance of the evidence supports a “yes” to these questions, your license suspension will be upheld. You cannot argue broader criminal defense strategies here; you must narrowly attack these specific procedural points.

Constitutional Protections: Courtroom vs. DMV

Another vital distinction lies in the constitutional protections afforded to you. In a criminal courtroom, you are protected by the strict rules of evidence. Hearsay is generally inadmissible, you have the right to confront your accusers, and your Miranda rights are strictly enforced. The courtroom is designed to protect the rights of the accused.

The DMV administrative hearing is entirely different. It is an informal proceeding where the strict rules of evidence do not apply. Hearsay is frequently admitted, meaning the hearings examiner can read from the police report even if the officer is not present to testify. You do not have the same constitutional shields at the DMV as you do in court, making the administrative hearing a precarious environment for anyone trying to represent themselves.

Tips for navigating the ALS process:

Act quickly: You only have 30 days from your arrest to request an ALS hearing. Missing this deadline guarantees an automatic license suspension.
Do not testify without counsel: Because the rules of evidence are relaxed, anything you say at the DMV can be recorded and used against you later in criminal court.
Use the hearing for discovery: A skilled attorney will use the ALS hearing to cross-examine the arresting officer under oath, locking in their testimony long before the criminal trial begins.

Why You Need an Integrated Defense Strategy

Because the DMV and criminal court are deeply intertwined yet fundamentally different, you cannot focus on one and ignore the other. You need an integrated defense strategy that addresses both venues simultaneously.

By having your defense lawyer waive your initial arraignment in criminal court, you preserve your daily routine and employment. Meanwhile, your attorney can immediately request an ALS hearing and begin subpoenaing evidence. The cross-examination of the arresting officer at the DMV hearing often reveals inconsistencies or procedural errors that can later be used to file a motion to suppress evidence in criminal court, potentially leading to the dismissal of your criminal charges.

Navigating these dual tracks requires an attorney who knows standard police procedures inside and out, and who understands how to leverage the administrative process to benefit the criminal defense.

Secure Board Certified Legal Representation

A New Hampshire DUI charge does not have to derail your entire life, cost you your job, or leave you without a driver’s license. By acting quickly and securing the right legal representation, you can ensure that your rights are protected across both the administrative and criminal fronts. Time is of the essence when fighting a DUI charge, and getting an attorney involved early prevents the State from gaining an unfair advantage.

Michael Bowser is a Board Certified DUI attorney with 30 years of proven results defending clients in Massachusetts, New Hampshire, and Maine. Known for his tenacious courtroom expertise, Attorney Bowser works diligently to protect your legal rights and your driving privileges.

If you or a loved one is facing DUI, DWI, or OUI charges, you need a legal team with a proven record of success across the Tri-State area. Protect your rights, your privacy, and your future. Contact Bowser Law today at (888) 526-9737 to schedule your free consultation and learn how an experienced trial attorney can fight for you.

Can Police Overcharge a Car Accident as Reckless Driving in Massachusetts?

Yes, they can try. And it happens more often than people think.

After a crash, police arrive under pressure to explain what happened. If someone was hurt, if the property damage looks serious, or if the scene feels chaotic, the temptation is often to turn a traffic event into a criminal case. In Massachusetts, that can mean a charge that the driver operated recklessly or negligently so that the lives or safety of the public might be endangered.

That language matters. Under Massachusetts law, the Commonwealth still has to prove more than “there was an accident.” A crash by itself does not automatically establish criminal recklessness.

An accident is not the same thing as a crime

This is one of the most important ideas in these cases. People make mistakes while driving. Some mistakes are civil problems. Some are traffic infractions. Some may support negligence arguments in an insurance claim. But criminal liability is different.

Massachusetts General Laws chapter 90, section 24 includes the offense of reckless operation and negligent operation so that the lives or safety of the public might be endangered. That means the government has to prove operation that actually fits that criminal standard. The prosecution is not entitled to skip that analysis just because two vehicles collided.

In real life, police often draw quick conclusions from the aftermath. Skid marks, vehicle positions, angry witnesses, and visible damage can create a powerful first impression. But first impressions are not proof.

Why overcharging happens after crashes

Overcharging often comes from one of three places.

First, the police report may rely too heavily on the result instead of the conduct. In other words, because the crash looked bad, the officer assumes the driving must have been criminally bad.

Second, witness accounts are often less reliable than they sound at the scene. People are upset. Angles are bad. Distances and speeds are guessed, not measured. Drivers and passengers may fill in gaps with assumptions.

Third, outside factors can be ignored. Weather, blind spots, road design, lighting, signal timing, mechanical issues, lane markings, and sudden movements by other drivers all matter. If those facts are missed or oversimplified, a bad crash can be dressed up as a criminal driving case.

What the defense should be looking at

Bowser Law approaches reckless and negligent driving cases by pulling the event apart piece by piece. That means reviewing the exact roadway, the point of impact, damage patterns, timing, witness vantage points, dashcam or surveillance footage, 911 calls, and any statements made at the scene.

The question is not whether the crash was serious. The question is whether the Commonwealth can actually prove criminal operation beyond a reasonable doubt.

Sometimes the right defense is that the evidence shows a simple mistake, not recklessness. Sometimes the issue is that the police misread who caused the accident. Sometimes the problem is that statements were taken out of context. Sometimes the charge is inflated because the officer was reacting to injuries or emotion rather than objective facts.

Why the stakes are higher than people expect

Many drivers hear “reckless driving” and assume it is basically a strong traffic ticket. It is not. A criminal charge can affect your record, your license, your employment, your insurance, and in some cases your professional standing. It can also be used to increase pressure in related civil litigation.

That is why these cases should be taken seriously from the beginning. A rushed admission, a sloppy explanation, or a casual plea can create damage that lasts much longer than the accident itself.

Bowser Law’s approach

Bowser Law does not simply accept the police version of a crash. The firm looks for what is missing, what is exaggerated, and what is legally insufficient. That is especially important in Massachusetts crash cases where an officer may try to turn a bad outcome into a criminal charge without carefully separating mistake from crime.

If you were charged with reckless driving or negligent operation after an accident in Massachusetts, do not assume the crash proves the case. It does not. The government still has work to do, and Bowser Law is ready to make them do it.

A serious crash deserves a serious defense. If the police overcharged your accident as reckless driving, Bowser Law can help you fight back.

Can Police Overcharge a Car Accident as Reckless Driving in Massachusetts?

Yes. Police and prosecutors can overcharge a car accident as reckless or negligent driving in Massachusetts, and it happens more often than people think. A crash does not automatically prove criminal wrongdoing. But once there is property damage, injury, angry witnesses, or a dramatic police narrative, a traffic accident can turn into a criminal case very quickly.

Massachusetts law makes it a crime to operate a motor vehicle recklessly, or to operate negligently so that the lives or safety of the public might be endangered. That is an important distinction. Civil fault for an accident is not the same as criminal negligence, and criminal negligence is not the same as recklessness. Recklessness suggests a willful disregard for safety. Negligence is a lower standard, but it still requires more than the simple fact that an accident occurred.

That is where overcharging comes in. An officer arrives at a chaotic scene, hears one side of the story, sees damage, and writes the report in the strongest language possible. Suddenly ordinary speed becomes ‘racing.’ A lane change becomes ‘weaving.’ Failure to react in time becomes ‘reckless disregard.’ If there was a near miss before impact, the language can get even worse.

Sometimes there is real evidence of dangerous operation. Sometimes there is not. Weather, road design, sight lines, mechanical issues, sudden emergencies, bad witness angles, and overstatement by another driver can all change the picture. In many crash cases, the key evidence is not the accusation itself but whether the state can actually prove the level of culpability the criminal charge requires.

These cases also get more dangerous when prosecutors start stacking charges. After a serious accident, they may add negligent operation, reckless driving, leaving the scene, or even an OUI-related count depending on the facts they claim to have. That is why drivers should never treat a complaint application or criminal motor vehicle charge like a routine ticket.

Bowser Law’s Massachusetts reckless-driving practice is built around challenging that escalation. The defense may involve attacking witness reliability, exposing assumptions in the police report, reviewing video, examining crash dynamics, or forcing the Commonwealth to prove more than hindsight blame. The fact that a crash happened does not automatically mean the state can prove a crime.

If you have been charged after an accident in Massachusetts, do not assume the police report got it right. And do not assume the charge fits the facts simply because it sounds serious on paper. Mike Bowser has substantial experience defending negligent and reckless operation cases across Massachusetts and knows how fast the Commonwealth can stretch bad facts into worse charges. Early defense work can make a major difference in how the case is ultimately resolved.

Why All Bowser Law Attorneys are NHSTA Certified

Those charged with DUI/OUI offenses (both being acronyms which mean same thing, but are titled differently depending on the State where the arrest occurred) and other alcohol-related offenses are often trying to find the attorney best-fitted to represent them. Of course that makes sense. In the same way that a person needing a serious medical procedure would want to find a doctor with specialized training and experience best-suited to assist in their particular situation, criminal defense is no different.

All of the attorneys at Bowser Law have received certifications approved by the National Highway Safety and Traffic Administration (commonly called “NHTSA”). NHTSA is a Federal Agency tasked with coordinating, standardizing, and training law-enforcement officers in impaired driving enforcement. NHTSA is the organization which created “standardized field sobriety testing,” and many other common tactics used by law enforcement when investigating and prosecuting cases involving impaired driving.

To gain this certification, the attorneys at Bowser Law have attended the SAME training given to police officers. This means we have reviewed and obtained the same written materials given to the officers; taken the same in-person practical examination officers must pass; and passed the same written test officers are required to pass to become “NHTSA Certified.” In my case, this included attending two “wet labs,” which is a testing environment where volunteers are given varying quantities of alcohol, and students are expected to use their training to identify and separate individuals with blood alcohol content levels above, below, and at a .08 value using the NHTSA training techniques (I was able to do so more than once).

How can this be used to our clients’ advantage as defense attorneys? Well, there are certain protocols officers must follow which are specific to an impaired driving investigation. To give one example, before a police officer asks a person to exit their car during an impaired driving investigation, they have been trained to look for up to fifty-eight (not a typo) different observable clues used to support an arrest decision before a suspect has taken even a single “field sobriety test.” Additionally, there are several common mistakes, oversights, and “pitfalls” I regularly observe officers make administering field sobriety tests. Such mistakes may invalidate or erode the value of a test entirely pursuant to NHSTA standards.

Being able to point out where an officer failed to properly use their training pursuant to their NHTSA training can be one of the most effective tools used when defending a client charged with a drunk driving offense. At Bowser Law, we believe the only way to optimally utilize this method of defense is by attending and passing the same training given to the officer who made the arrest.

Shane regularly advocates for clients charged with DUI/OUI offenses throughout New Hampshire and Massachusetts. He is NHTSA Certified in DUI and field sobriety testing procedures. Contact Shane to schedule a free consultation and learn how he can help assist in your case by calling Bowser Law today at (978) 256-2700.

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 bowserlaw.com, 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 bowserlaw.com 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;
BE PREPARED TO TRY THE DUI CASE TO VERDICT BEFORE A JUDGE OR JURY!

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.