Why Experience Matters: Knowing Your Options

There are plenty of DUI attorneys out there. Each one has a different level of experience and a different way of handling cases. Some attorneys try to simply negotiate a plea in every case. We are not that firm.

At Bowser Law, we pride ourselves on fighting for the citizens accused of a crime. We take cases to trial to fight for the best possible result for our clients. When you decide to fight, experience matters. Attorney Bowser’s results prove his success.

In this blog series, we will detail some examples of how experience makes a difference in DWI/OUI cases. Previously in this series, we have covered:

Today we will look at Knowing your Options.

Just because your Blood Alcohol Content test has a number above the legal limit, doesn’t mean you are doomed.
In America, a DUI charge is not an automatic conviction. Just because there is evidence against you and a breath or blood test that shows a high number, the government still has to work to prove their case. The difficulty for prosecutors becomes compounded when they are faced with a trial attorney with the caliber of Attorney Mike Bowser. He is one of the few attorneys who regularly takes DUI cases to trial. Prosecutors know and respect Attorney Bowser’s reputation and oftentimes really do not want to go to trial against him. Attorney Bowser uses this leverage to his clients’ benefit.

After careful review of all of the facts and evidence in your case, if Attorney Bowser feels that taking your case to trial is too risky, he uses his leverage with the government to negotiate the best deal for his clients. The important thing that many attorneys overlook is that what may be a good deal for one client, may not be a good deal for another. An example of this is with CDL drivers. While a reduction to a lower DUI/OUI related charge may be a great move for one client, it could trigger a career ending suspension for a CDL driver. Knowing your options and knowing what the prosecutors are willing to give, makes a big difference. This is where experience really matters.

That is why it is important to know and understand each and every client. At Bowser Law, we stand out about the rest. We approach cases with precision and care. We want to meet you in person to better understand your situation so that we can structure your case to put you in the best possible position.

Knowing your situation is the first step to securing the best outcome for your case. If you have been charged with a DWI/OUI and want to fight your case in court, please call 888-414-9202 today to schedule your free case consultation. Your case deserves an aggressive defense and Attorney Bowser is ready for a fight.

Five Things You Should Do If You Get Arrested for a DUI

No one ever plans to get arrested for a DUI (which is called an OUI in Massachusetts and Maine and a DWI in New Hampshire). No one thinks it will happen to them…until it does. That is why it is smart to take a moment and understand how a DUI arrest works and what you can do to improve your chances at a successful defense.

Here are five things you should do if you are arrested for a DUI/OUI/DWI:

1. Shut Up!

Anything you say can and will be used against you in a court of law.
Remember that and abide by it. It is amazing how many people think they can talk their way out of an arrest. It’s not going to happen. If a police officer believes you are impaired, then you are going to get arrested. Talking will only hurt you by giving the police more evidence against you. Even if they pressure you to answer questions, you can politely refuse by saying “I choose to remain silent officer.”

2. Write Down the Details

After your arrest, it is important to write down the details of what happened.

  • Where were you prior to your arrest?
  • Are there any witnesses who can testify on your behalf?
  • Where were you arrested?
  • What were the road or weather conditions like?

DUI cases are won on the details and the more information you provide to your attorney, the better they will be able to prepare your case.

3. Take a Look at Your Social Media Settings

Prosecutors and jurors often look up names of suspects on social media and pass judgement. Take a close look at what you share on social media and what impression people will get of you. Just as you would want to dress professionally if you stood before a judge, you also want your social media to reflect a positive image of you.

4. Call Attorney Bowser

If you have been arrested in Massachusetts, New Hampshire, or Maine, please call Attorney Mike Bowser at 888-414-9202. Choosing the right attorney to fight your case is the single most important decision you will make. Attorney Mike Bowser is the only Board Certified DUI Defense Specialist who practices in MA, NH & ME. He uses a unique approach to defending DUI cases by focusing on the forensic science and challenging the state’s scientific evidence. This approach has proven to be highly successful.

Attorney Bowser’s success is based on:

  • His knowledge of forensic science surrounding both breath and blood testing
  • His knowledge of police training and procedures especially in relation to NHSTA standards for field sobriety tests and Drunk Driving investigations
  • His real courtroom trial skills including cross examining, making compelling opening and closing statements and how to select favorable jurors

There is no substitute for the experience of hundreds of successful DUI trials. Attorney Bowser will take your case to fight. He is NOT A PLEA ESCORT SERVICE.

5. Relax and Don’t Obsess

Attorney Bowser is in the business of protecting people like you. Once you have made the right choice, let him worry about your case. This allows you to get on with your life and focus on doing positive things, knowing your have an experienced trial attorney working on your behalf.

Summertime is DUI Time

As the weather gets warmer, you may have noticed more commercials on TV about DUI enforcement. You may have also run into a DUI checkpoint or you may have seen more police cars patrolling at night. Police routinely patrol bars, clubs, and popular beach areas. This is not by accident.

DUI arrests are very profitable for local law enforcement. It is a concept that some have dubbed “Policing for Profit”. Think about how towns and their police departments work together to set up speed traps by suddenly dropping the speed limit from one area to another. This helps them write more tickets, which means more money. At this point, law enforcement has little to do with protecting the public and more to do with profit.

DUI is handled in a very similar way. Cops focus on making arrests even when the driver is not guilty. Attorney Bowser recently dealt with a case where a driver was charged with DWI even after testing less than half the legal limit.

Also be vigilant if you are out on the water because police make a number of BWI or Boating while Intoxicated arrests as well. Remember, Boating while Intoxicated will get both your boating and car licenses suspended.

So if you are out there and have had too much to drink, please play it safe and call an Uber or a friend to drive. If you are arrested for a DUI, the safe bet is to call Bowser Law. Call 888-414-9202 now for a free case evaluation.

Expect a High Number of Arrests at Laconia Bike Week

Laconia Bike Week 2019 will run from Saturday, June 8 to Sunday, June 16.

Laconia Bike Week attracts motorcycle enthusiasts from all over the country. There will be plenty of motorcycles, boating, entertainment, and food.

But there will also be a lot of arrests as police ramp up enforcement around popular areas and events.

Some of the common charges people are arrested for are:

  • Drunk Driving/DUI/DWI
  • Boating while Intoxicated (BWI)
  • Public Intoxication
  • Disorderly Conduct
  • Drug Possession and Sales

New Hampshire has a reputation of targeting out of state residents for criminal arrests. Keep in mind: if your license is suspended for a DWI in NH, this will affect your license in your home state as well. Getting this all sorted out can be complicated, expensive, and time consuming.

If you or a loved one are arrested during Laconia Bike Week, get a lawyer who is willing to stand up and fight for you. Attorney Mike Bowser is one of the few Board Certified DUI attorneys in the area. He has a reputation for fighting tough cases for his clients and doing what it takes to protect their rights.

Call 888-414-9202 now for a free case evaluation. Don’t let a week of fun turn into the worst week of your life.

Attorney Mike Bowser by the Numbers

Attorney Mike Bowser has a stellar record defending DUI/DWI cases in Massachusetts and New Hampshire. Here are some key facts you should keep in mind:

  • In 24 trials during 2018, Attorney Mike Bowser won a not guilty verdict 83% of the time.
  • Attorney Mike Bowser has never lost a DUI Marijuana case. Ever.
  • Out of 145 DUI/DWI cases in 2018, 105 clients walked away without a DUI or had a more serious DUI reduced to a lesser offense.

The numbers don’t lie. Call 888-526-9737 today for your free case consultation.

Increased arrests during Laconia Bike Week

It’s time for Laconia Bike Week!

Laconia Bike Week is a great event for motorcycle enthusiasts from all over the country. Because of the beautiful weather expected for most of the week, there will be plenty of motorcycles, boating and barbecuing.
But there will also be a lot of booking as police ramp up enforcement around popular areas.
Some of the common charges people are arrested for are:

  • Drunk Driving/DUI/DWI
  • Boating while Intoxicated (BWI)
  • Public Intoxication
  • Disorderly Conduct
  • Drug Possession and Sales

One of the worst things about getting arrested in New Hampshire as an out of state residence is having to worry about traveling back and forth for court proceedings. On top of that, in the case of DWI violations, you have to worry about your license being suspended. This means if you are found guilty and suspended in NH, your license may also be suspended in your home state. Massachusetts reciprocates on NH DWI suspensions.
If you or a loved one are arrested during Laconia Bike Week, get a lawyer who is willing to stand up and fight for you. Attorney Mike Bowser is one of the few Board Certified DUI attorneys in the area. He has a reputation for fighting tough cases for his clients and doing what it takes to protect their right.
Call 1-888-526-9737 now for a free case evaluation. Don’t let a week of fun turn into the worst week of your life.

Valor Act and Operating Under the Influence

Attention all United States Veterans! Have you been charged with a OUI in Massachusetts? Did you serve at least one day in the US Army, Navy, Marines, Air Force or Coast Guard? If so, you may be eligible for relief under the Valor Act, which provides alternatives to prosecution.

Valor Act applications should be considered at your arraignment. In several instances we have been able to request evaluations at your Pretrial Conference court date. To qualify for the program, you must have no prior criminal convictions (with exceptions for prior DUI’s), no outstanding warrants, and no other pending criminal cases.

The Valor Act is a Massachusetts law that gives the district courts and BMC power to divert certain servicemen and veterans pursuant to G.L. c. 276A, §10. In the pretrial diversion program, the veteran would meet with a social worker through Veterans Affairs (“VA”) to determined if he/she would benefit from participating in the program. The program focuses on drug, alcohol and mental health treatment and education. These are all ways to improve the veteran’s life.

A typical treatment program lasts 90 days. If the veteran completes the recommended treatment successfully, his case will be outright dismissed. There is never an admission or finding of guilt, thus no conviction on the offense.

If you have served our country but the Valor Act is not appropriate for your situation, other alternatives exist. For example, Veteran’s Treatment Court and the Veteran’s Justice Outreach Program. A thorough review of your particular circumstances will allow us to determine how we can help.


Marijuana Legalization and Drunk Driving in MA – Expert Network Interview, December 30, 2016

In this Expert Network interview on WCAP Radio, Attorney Mike Bowser discusses the recent marijuana legalization in Massachusetts and its potential effect on drunk driving laws and police procedures when you pulled over while driving.

Teddy: We’re very excited to welcome in our first guest of the morning. He is a member of our Expert Network. He’s joining us this morning to talk about a Supreme Court case, a Massachusetts Supreme Court case, that is very relevant to what Chris and I have been talking a lot about these last couple of days – what we’ve really been talking about since November 8th, and even before that. Marijuana – now that it’s legal, some of the legal side effects that are coming into play. Attorney Michael Bowser is joining us in studios. Good morning, Counselor. How are you, Sir?

Mike: Good morning, Ted. How are you?

Teddy: Good. Merry Christmas, Happy Holidays, Happy New Year to you and all your loved ones. We haven’t touched base for a while.

Mike: No, it’s all been an incredible year. I’ve had a great year.

Teddy: You’re a busy man, aren’t you?

Mike: I am, yes.

Teddy: You’re going to get a lot busier after November 8th, aren’t you?

Mike: I may.

Teddy: Or December 15th I should say, right?

Mike: Right, and we’re waiting for a decision from the Massachusetts Supreme Court in Commonwealth vs Gerhardt which is an OUI marijuana case out of Worcester County. A state trooper pulled over Mr. Gerhardt who had obviously just recently consumed marijuana.

Teddy: You say obviously. Well, how do we know it? Did they do a blood test? Did they do a breathalyzer?

Mike: There was smoke billowing from the window as he approached. There were ashes on his person and in the car, and he admitted to recently smoking. The evidence is there, the facts. There’s no motion to change the facts. Those are the facts.

Teddy: He said he was smoking marijuana.

Mike: He did admit to it, and the trooper put him through what are considered the standard battery of field sobriety tests. Those tests were designed many years ago and have some validation to detect impairment by alcohol. They are not designed, nor are they terribly accurate or reliable, for impairment by other substances including marijuana.

Teddy: All right, we’re talking the field sobriety test, the one that you famously put me through, that I flunked after not having had a drink in about six days and only coffee, Pepsi and water since then. Walk in a straight line, turn, balance, what are the steps again?

Mike: The standard battery of field sobriety tests, or at least the standardized battery of three, is a horizontal gaze nystagmus test. That is where an officer is going to put a pen in front of your face and move that pen back and forth in a horizontal fashion. He’s looking for the involuntary jerking of the eyeball, which is nystagmus, caused by alcohol. Then he will have you do a walk and turn. That’s stand heel to toe, nine steps up, nine steps back on the line. Then the last one is a one leg stand. That’s the one where you’re asked to elevate one foot six inches off the ground, hold it in a balanced position and count out loud to a count of 30. That’s the standardized field sobriety test battery.

Mike: Which is interesting, these–

Teddy: Sobriety only means alcohol, apparently, right?

Mike: They’re not designed to determine whether you are an unsafe driver. They’re designed to determine whether you are impaired by alcohol. The correlation between driving and field sobriety tests, the nexus has always been they show impairment by alcohol. If you’re impaired by alcohol, then you could be unsafe to drive. There is no nexus or connection between marijuana use consumption and inability to do these tests.

Teddy: Have there been tests done? Have there been studies done to show if alcohol and marijuana affect you or impair you similarly or does marijuana impair you at all?

Mike: Differently. Marijuana can be an impairing substance, but marijuana and alcohol affect the body differently. Alcohol has a whole-body effect, meaning, if you’re impaired by alcohol, it affects your judgment, your thinking, your motor skills.

Teddy: Reflexes.

Mike: Your speech, your reflexes, your balance.

Teddy: Marijuana doesn’t?

Mike: Not always, and it has a different effect on different people. It acts on different receptors within the body and is a euphoric effect. People consider you being high that euphoric effect you may have if you smoke marijuana.

Teddy: Why are you looking at Chris when you say that?

Mike: He’s smiling at me.

Chris: I’m just listening.

Mike: Then there’s the physiological effect which is much, much different. You can be a person who has consumed marijuana and not be unsafe to drive. It’s a very difficult position for a police officer to be in to try to determine. Then what is reported to the Supreme Court are questions out of the District Court in Worcester as to what exactly a police officer can testify to. What can he say? Can you ask a jury to rely upon their own lay opinions? Going back to the ‘20s, we have case law in Massachusetts that says that a juror, a lay person, can hear evidence and determine whether a person’s impaired by alcohol because alcohol is common to – everyone’s familiar with alcohol and its effects – every adult. That’s not true with marijuana.

Very few people are familiar with the physiological effects of marijuana and the huge distinction between the effects of alcohol versus the effects of marijuana. To ask a juror to speculate as to what high, literally, what does high mean? Can a police officer stand up in front of a jury and say I think Mr. Panos was high. What does that mean? If you stand up in front of a jury and you say I think Chris Poublon was drunk, every juror knows what that means. But they do not necessarily know or have any common knowledge of the effects of marijuana.

Teddy: Now this is the one area, the driving while under the influence of marijuana, that folks talked about some of the complications from that ballot initiative. There is no standardized test. At least what I’m learning now is there’s no standardized behavior or impairment changes either. In the old days, it was, even if you couldn’t prove impairment, it was illegal to possess and use marijuana. You were going to get in trouble for something, right?

Mike: Correct.

Teddy: They could at least pull you over for something.

Mike: Well, it was a crime to possess marijuana. That went away several years ago. Now it is no longer a crime to possess, to grow, or to consume marijuana, but it’s illegal to purchase marijuana. The legislature just kicked out the date for sales by another six months. I think they’ve back-doored an extension in there, and they want the governor to extend it.

Teddy: Yes, July of 2018.

Mike: Correct. It’s no longer a crime to possess, grow, consume, but you can’t buy it.

Teddy: Okay. There’s talk about creating — they wanted extra time to come up with some tests for the drivers. Can they buy ten years’ worth of time and come up with that test? It sounds like your answer is no.

Mike: Right now, there is no agreement in the scientific community, definitely, as to field sobriety testing. There are studies as recent as 2014 that show that the standard battery of field sobriety test is not accurate, is not reliable, for detecting impairment by marijuana. There’s a huge false positive amongst marijuana users. Right now, we do not have the scientific capability, especially in the sense of a standard drunk driving stop. You can’t take the guy to the station and draw his blood and come up with a conclusive level of THC impairment.

Teddy: All right, Mr. Gerhardt admitted to smoking marijuana, using it. It was in his car. The officer detected the smoke when the windows were rolled down and what. What happened? He got charged with–

Mike: He put him through the standard battery. He passed the horizontal gaze nystagmus test. Marijuana doesn’t cause that or cause that effect upon your eyes or your nervous system.

Teddy: Could the officer see, were his eyes open far enough for the officer to see the eyeballs?

Mike: His eyes were bloodshot. He had some difficulty with the walk and turn test and he some difficulty with his balance in the one leg stand. The defense lawyer in the District Court out in Worcester County filed a motion asking the District Court judge to rule that that trooper cannot use the word high. He shouldn’t be able to testify that he had an opinion that Mr. Gerhardt was impaired. He should not be able to testify before a jury that he administered those tests that are designed for alcohol to reach a conclusion of impairment by marijuana.

Judge DeAngelo – who I think most lawyers, prosecutors and defense lawyers alike would say is probably one of the more thoughtful judges on the bench – he reported those four questions. He said, you know what, this is an issue that has to be addressed by the highest court or a higher court. He reported those four questions to the Appeals Court I believe, and then the SJC grabbed it. Now briefs have been filed. Amicus briefs and I think oral arguments are next Friday.

Teddy: There was no decision reached in the lower court case. The judge said, “Listen, we need clearance on this before we can proceed.”

Mike: We need clarity from the higher courts or the appellate courts as to what is going to be admissible in an OUI marijuana prosecution. They’re coming.

Teddy: In this particular case, with the legislators saying we need time to craft laws about this. No, they don’t. The court’s going to decide this for them. No matter what they do, once the State Supreme Court rules, I can’t see what law you can pass that would circumvent whatever the judge rules, can you?

Mike: No, people are going to be arrested and charged with OUI drugs, OUI marijuana from now until July of 2018. These prosecutions are going to go forward, and the courts need some clarification from the SJC as to what’s going to be admissible tomorrow, or next month, or next year.

Teddy: Let’s talk practical, because as of December 15th it became legal. Theoretically more people will use in situations where they might not have, and that might include being out in public. Just like when you’re drinking in public, you eventually try to go home or get somewhere. We may see a rise in the number of people doing this, theoretically of course. Let’s talk about an individual case.

As someone who is an expert in this field, although you just said nobody is really an expert yet until the State Supreme Court rules. What’s your advice to somebody? Let’s say that Chris or I, our New Year’s Eve. We go out, we have a little fun and part of that fun, we smoke a fatty in the parking lot. But then we have to get home. Gabby wants Chris to spend New Year’s Eve with her. Mrs. Teddy P would like me to go home and watch the ball drop together. We get in our car and we get pulled over. We haven’t had a drink, we had our Chinese food and our joint.

Mike: Right. This is where I’d normally say, listen, everybody has to know their own limit and the standard is are you impaired to drive safely? Is your ability to operate a vehicle impaired by the alcohol that you’ve consumed? With alcohol that’s a different amount with every single person, you have to know your limit. Now, honestly in the area of marijuana, I don’t know what that limit is, and there’s a huge difference with marijuana and tolerance and exposure and how often you smoke and whether you are truly impaired.

There are people that smoke pot every day and get behind the wheel – they’re not unsafe to drive. In fact there are studies that show that smoking marijuana makes you a more cautious driver, not a more impaired driver. That being said, if you are pulled over by a police officer, and we’ve had this conversation before, you’re obviously going to be asked for a license and registration, you have to hand over those documents upon request.

Teddy: Don’t mouth off.

Mike: No. God no.

Teddy: Comply.

Mike: Cooperative, polite, hand over your documents. However–

Teddy: Get out of the car. Now what?

Mike: Once you’re stopped, at that point the officer, based on what he observes and what he thinks is going on, is probably going to ask you a number of questions about what did you consume? Where did you consume it? Did you smoke a fatty? Why do I smell marijuana in the car? Can you get out to do a field sobriety test? Then literally you can say to that officer, “I’m not answering any questions. Am I free to go?” At that point–

Teddy: That’s the response? I’m not answering any questions–

Mike: Or you can say, am I free to leave?

Teddy: Am I free to leave.

Mike: Put it on him to tell you whether you can leave or not and in most instances I think in every instance he’s going to say no.

Teddy: I was going to say is that a trigger? That question right there, am I free to leave? Is that a trigger for the officer to suddenly get suspicious and go into prosecutorial mode?

Mike: No, but it puts into the proper context whether you have a right to remain silent, and that puts it on their plate. “Am I free to leave?” If he says no, you can certainly say, “Well I’m not answering any questions.” The only one you’re required to answer is license and registration and that is not even a verbal response, that’s handing over of documents.

Teddy: The officer says to me, “Take this field sobriety test.” or “Take this Breathalyzer test.” If I say no, my license is gone. Whether I’m sober or not, whether that gets adjudicated or not, for that period of time–with alcohol, I lose my license. With marijuana, what happens?

Mike: With alcohol, if the officer says, “Mr. Panos I want you to step from the vehicle for a field sobriety testing.” “No thank you, I’m not doing those tests.” Then he’s got to make a decision as to whether he’s got probable cause to arrest. The refusal of the field test does not trigger any administrative sanction against your driver’s license. When you’re out of the car, and handcuffed and you’re cooperative and polite and compliant with that.

When he tells you you’re under arrest you cannot resist or remain in the vehicle, you have to get out and submit to the arrest, it’s a lawful arrest, then you go to the station. Here’s the problem, in an alcohol case you’re going to be asked to submit to a breath test to read the blood alcohol content in your body. If you refuse that test there’s an administrative sanction; you lose your license automatically.

Teddy: I lose my license until I can fight to get it back in court.

Mike: You take the test and you’re over the legal limit, there’s an administrative sanction and you lose the license for a much shorter period of time but you lose it. In a marijuana case, unless they’re specifically asking you for a blood draw, there is no machine at the barracks or the station that they can say, “We want you to submit to a test right here and now.” This is a conundrum – even if there was a test, what’s the level? If you submit to it and take it, and it’s the metabolite of marijuana that’s been in your system for the last 17 years because you smoke everyday versus the active ingredient of THC because you just smoked recently, there is no per se level. There can’t be an administrative sanction if the marijuana is in your system right now.

Teddy: Will I lose my license if I refuse to take that marijuana blood test?

Mike: I believe if a state trooper, as the state of the law is right now, if they ask you to submit to a blood test – they can ask you to submit to a chemical test, breath, blood or urine, it’s their choice and they can certainly ask that you have blood drawn as a mechanism for officers to go through a protocol at a hospital for what’s called a legal blood draw.

They can do that, they can make that request. If you refused to participate in that, they could report that refusal to the registry that would trigger a loss of license just as it would in an alcohol case. It’s very rarely done. Most often in a station, they ask you to take a breath test, you refuse, it goes right to the registry through the breath test machine. It’s rare that a refusal of a blood test is actually reported to the registry by a police department. I’ve seen it but it’s rare.

Teddy: We have a listener who wants to ask a question, Cliff, Counselor Bowser does not have head phones. If you ask me the question I’ll be happy to relay it for him.

Cliff: I’ve just got a couple of statements to make. Michael Bowser represented me in one of my cases in the past. He’s definitely the best around. Also to make a quick point when you’re talking about the marijuana situation, in Lowell it’s an unusual situation where if a person gets pulled over by the National Park Service, you actually go to court at the federal court in Boston. That’s something I found out fairly recently. That’s just a couple of statements I want to make. Like I said Michael Bowser’s the best around. Thanks, bye.

Teddy: Thanks for the call Cliff. First of all, in case you couldn’t hear that he says that you’re the best around and that you actually represented him in a recent case. But he also talked about having to go to Boston if you–? I missed that last part a little bit, the sound was muffled.

Mike: That’s the only part that I heard. Yes, there’s a federal statute against impaired driving. You can get charged in the federal court with a drunk driving offense and it happens at the National Seashore down the Cape–

Teddy: If who pulls you over? A local police officer isn’t going to charge you federally right?

Mike:  Well, it could happen on an Air Force base, an Army base, The National Seashore down the Cape.

Teddy: On government property; National Park Ranger.

Mike: National Park in Lowell. Absolutely.

Teddy: I got you.

Mike: Yes, and again, not often but I’ve been there and I’ve done that and I have seen it. I haven’t been to the federal court on a drunk driving case in several years but I have seen them and it does happen. Yes, there’s a separate body of federal law similar to state law having to do with drunk driving.

Teddy: Tomorrow night is New Year’s Eve. We always caution people – don’t drink, don’t drive. If you’re going to smoke, try not to drive.

Mike: Know your limits.

Teddy: The law and the science isn’t included yet but why take the chance? We really want Counselor Bowser to find another profession, but if you are in need of his services, you’re phone lines, your internet, your email’s going to be activated all weekend. Please let folks know how they can get in touch with you, counselor.

Mike: Sure. The toll-free number is actually 1-888-5-BOWSER, B-O-W-S-E-R and the website is www.bowserlaw.com.

Teddy: Okay, and to recap, if you find yourself in that situation, whether you’ve had one drink or eight drinks, whether you’ve taken a puff of a joint or done the whole fatty by yourself, officer pulls you over, they ask for your license and registration; you have to comply, correct?

Mike: Yes.

Teddy: Don’t mouth off, don’t do anything.

Mike: No.

Teddy: They start asking you questions, “Where you coming from?” “What did you do when you were there?” What’s your advice?

Mike: “Am I free to leave?”

Teddy: Don’t answer the questions, say “am I free to leave”?

Mike: “Am I free to leave”, and the response will be “no”, and then you can say to the officer, “I’m not going to be answering any questions.”

Teddy: “I’m not going to be answering any questions”.

Mike: I can almost guarantee you, you will be arrested when you say that.

Teddy: I was just going to say, the officer’s then going to say, “get out of the car”, and ask you to submit to some field sobriety or some test. Your response should be?

Mike: “I’m not taking those tests.”

Teddy: You will be arrested?

Mike: At that point he has to make a decision whether he or she has probable cause to make the arrest, and if they inform you at that point, “step from the vehicle, you’re under arrest”, you have to do that, you must comply.

Teddy: All right. Your advice is don’t fight, don’t be rude, don’t be belligerent.

Mike: Don’t be chatty.

Teddy: Don’t be chatty. Anything you say can and will be used against you.

Mike: Absolutely.

Teddy: Your legal rights, your protections don’t begin when you decide you want to start questioning or mouthing off to the officer or questioning his or her knowledge of the law. Your legal rights and your protection begins when you call attorney Bowser.

Mike: Yes. The less said, the better.

Teddy: How do they get in touch with you again, sir?

Mike: bowserlaw.com, 1-888-5-BOWSER.

Teddy: Like I said, I hope you have a happy New Years Eve and that your phone doesn’t ring. I’m trying to put you out of business, you realize this?

Mike: I understand. I figure I have about 10 years left before self-driving cars.

Teddy: Your kids don’t need to go to college, right?

Mike: They’re there. That’s what I said, right around the time of the self-driving car I’ll be retiring.

Teddy: Poor guy comes in, he does his expert network, he helps inform us on laws, he also does some advertising, and I’m trying to put him out of business. That’s the kind of guy I am.

Mike: That’s okay, I want everyone to have a very, very safe holiday.

Teddy: Happy New Year and a safe New Year to you as well.

Mike: Thank you.

What are Field Sobriety Tests?

Attorney Mike Bowser of Bowser Law speaks with John Maher about the uses and limitations of field sobriety tests. Field sobriety tests can be difficult or impossible for some people regardless of intoxication, and they may not be given in proper conditions. This can greatly affect your DUI case and its verdict.

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 field sobriety tests. Welcome, Mike.

Mike Bowser: Good morning.

John: So Mike, what are field sobriety tests and why are they performed?

Mike: Field sobriety tests are exercises, and a police officer who’s testifying before a judge or a jury will always describe them as “divided attention” tests. What they are designed to do is give the police officer an indication or evidence of possible impairment by alcohol. For instance, the standard three that you usually see in Massachusetts and New Hampshire is what’s called a horizontal gaze nystagmus test where an officer holds a pen or his finger about 12 or 15 inches away from your face, moves it in a horizontal plane in front of your face, and asks you to track it with your eyes only, without moving your head.

Then, he’s looking for an involuntary horizontal jerking of the eyeball as it tracks that stimulus, because he has been trained that certain presentations in the the eyeball as it tracks the stimulus can be indicative of alcohol impairment. Then, the other two that you always see are a heel to toe walk and turn test where you’re are asked to stand heel to toe and then walk nine steps on a line, turn in designated fashion, and walk nine steps back keeping your hands down at your side and touching each step heel to toe in a straight line.

John: That’s the one you always see on TV and things that would-

Mike: Yes.

John: -walk the line, yes.

Mike: The last one is a balance. A true balance test where you’re asked to stand at attention. It’s the one-leg stand. You stand at attention with your hands down by your side and when you’re asked to begin, you raise one foot of your choosing six inches off the ground pointing your toe, looking down at the toe of your foot and then you count one one-thousand, two one-thousand. That counting is an instruction, but the officer is actually timing the test looking for you to keep that foot elevated for a period of 30 seconds.

John: Are there any tricks to it? Like the actual test just to see whether or not you can count one one-thousand, two one-thousand? It’s not really about the balance at all or is it-

Mike: No.

John: -a combination of those things?

Mike: It’s absolutely a combination. He’s looking for is both a physical component and a mental component. Mental meaning “can you actually absorb the verbal instructions that he’s given you and then execute those instructions?” Are you able to follow directions and execute the instructions as they were given to you mentally? Then physically, are you capable of doing what they will refer to as “simple balance walking exercises?” Clicking heel-to-toe, keeping your foot elevated, not using your arms for balance, staying on the line, don’t sway, and don’t hop. Quite frankly, I believe that the tests are designed to fail because they are incredibly difficult, put in context. They’re typically given roadside, you could be standing on the side of 128 or the breakdown lane of 93 North or Route 3 at two o’clock in the morning with traffic and trucks zipping by under the scrutiny of a police officer with his flashlight, his uniform, his flashing lights. It can be very difficult.

Every person is different, some people are more gifted in terms of their coordination, their balance, their athletic ability. Some people are not. There are restrictions related to these tests based on back injuries, leg injuries, inner ear disorders, weight, whether you’re more than 50 pounds overweight or not, the type of shoes that you’re wearing, do you have on a heel. All of these things factor into the validity of these tests to actually, truly reflect a person’s impairment by alcohol. Or are they just nervous, scared, embarrassed, afraid, clumsy? All of those things.

John: Right. Sure, anytime I’ve been pulled over for speeding or something like that I take off after the police officer lets me go and my leg is shaking. I’d have to imagine if I was trying to walk the line or something like that, yes, my knees would be shaking.

Mike: I’ve had the same experience. I was pulled over coming from a hockey rink at 8:30 in the morning and I think my hand was shaking as I emptied my wallet to hand over my license for no reason. I had done nothing wrong.

John: Right.

Mike: But merely the presence of a police officer at your window can be a nerve-wracking experience for any driver. Then, you ask that driver to step from the vehicle and perform a physical, mental task that is very unfamiliar to them. As I tell juries all the time, field sobriety tests are familiar rote activities for one class of people and one class of people only: police officers.

John: Right.

Mike: Because they see them and demonstrate them and instruct them all the time.

John: They just think it’s the most simple thing. Everybody should know how to do that.

Mike: Given their experience and exposure and practice for them, it is. But for most drivers it is not.

John: Right. Is it your opinion then that field sobriety test results are unreliable?

Mike: I don’t think they’re reliable for most drivers as an indicator of impairment, given the level of emotional stress that may be involved, given the physical characteristics and the differences between one person to the next. There are so many factors that go into whether a person is having difficulty with that test because of alcohol, because of emotional stress, because of physical limitations, or disabilities.

All of those things need to be explored and that’s typically what you see in a courtroom in terms of cross-examination. The officer will quite readily admit that there are limitations to these tests and oftentimes they’re not factoring in exactly what they’ve been trained to factor in–injuries, disabilities, overweight, heels, the conditions where the test were given, the weather, the surface, whether it’s wet, icy, snow, wind, rain–all of these things factoring.

John: Right. Can field sobriety tests then be challenged in court?

Mike: Absolutely. I would say that 95% of my trials are trials involving a motor vehicle stop with those battery of field sobriety tests being given. I’m always asking a judge or a jury to consider the validity of those tests. And I’ve had many not guiltys where the officer’s opinion was that my client failed each and every one of those field sobriety tests, but that wasn’t sufficient evidence for a judge or a jury to find impairment beyond a reasonable doubt based on those tests alone.

John: Okay. How can an attorney help in this situation?

Mike: If you are familiar with the testing and the training behind the testing, then I think that leads to an effective cross-examination of a police officer. If you know the police officers’ training as well as he does, you should be able to effectively bring to the fore the limitations in the testing. Whether they were done properly and whether they were done as he was trained to do them.

You need to be as familiar with those tests as that officer is. You need to be familiar with his training. There’s a manual that is provided to police officers in Mass and New Hampshire through the Academy based on what’s called the National Highway Traffic Safety Administration Guidelines for Field Sobriety Testing. I have each and every one of them since the ’80s and I know them very well. You need to, in order to effectively defend someone who has been subject to field sobriety test.

John: All right. Because like you said, they are trained in those manuals to take into account factors that may affect the test.

Mike: Sure.

John: Somebody is like you said wearing heels and is overweight and is being asked to stand on one foot. It seems that would be awfully difficult and yet they may not be taking that into account when they determine that that person is intoxicated.

Mike: Sometimes the officers…for instance the walk and turn test. If you read the manual, the walk and turn test requires a designated straight line. Well, oftentimes the only designated straight line that is available to the trooper or the officer is the breakdown lane on the highway. They’re never going to put someone on the breakdown lane.

John: Standing right on the edge of the road.

Mike: Exactly, just for safety purposes. There are some certain limitations to their ability to do things perfectly. Now, that doesn’t mean they’re intentionally deviating from their training but it’s important to point out to the jury that, “Listen, you were trained to use a designated straight line, you didn’t have one available to you, how do you account for that in your opinion?” Oftentimes they’ll say, “Well, I considered it,” and, “Well, how did you consider it? Because you’ve certainly testified under oath that he failed but one of the key components of your training was not part of this test.” You need to look at where the tests were given, when they were given, under what conditions they were given.

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

Mike: Sure.

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

Understanding Reciprocity between MA & NH in DWI Defense

Attorney Mike Bowser of Bowser laws speaks with John Maher about reciprocity between Massachusetts and New Hampshire in DWI cases. Your driving record in one state can affect your driving privileges in the other. Mike describes how reciprocity can affect your DWI defense and what your attorney can do for you.

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 the importance of understanding reciprocity between Massachusetts and New Hampshire in DWI defense. Welcome, Mike.

Mike Bowser: Good morning.

John: So Mike if a Massachusetts resident is arrested in New Hampshire for a DWI, what do they need to know?

Mike: What they need to know first and foremost is that the only entity that can revoke a Mass resident’s Massachusetts driver’s license is either the Massachusetts Registry of Motor Vehicles or court–a judge sitting in a court in Massachusetts. When you get arrested in New Hampshire, there are penalties that apply to your privilege to drive. The New Hampshire courts and the New Hampshire DMV cannot take a Massachusetts’s license or revoke it, but they can say to a Mass driver “your privilege to drive and operate on the roads of this state, in New Hampshire, are revoked.” You get arrested in New Hampshire, you’re from Mass, there are going to be some mandatory penalties, both administrative through the DMV and then through the court process on the DWI charge–they apply to your privilege to drive. It may take and oftentimes it does take the Massachusetts Registry of Motor Vehicles some period of time, several weeks, sometimes several months to catch up to that Massachusetts driver. What that driver needs to know is that they are probably going to be revoked shortly after their arrest in New Hampshire; meaning their privileges are revoked but they’re going to maintain a valid Mass license for a period of time.

Again, several weeks or several months. Which means they can drive everywhere in the world except New Hampshire. That’s important to someone in Massachusetts to know that you still hold a valid Mass license. You can drive to work, you can do what you need to do, you cannot drive in New Hampshire necessarily and you need to understand the mechanism by which Massachusetts responds to the New Hampshire DMV. They will typically find out through the National Driver Registry that you have a suspension of your privileges in New Hampshire in this reciprocity, meaning Massachusetts will issue a notice saying, “We found out about your administrative suspension in New Hampshire” or “We found out about you DWI conviction in New Hampshire, your Mass license on a date certain–usually 30 days out–is going to be revoked.”

John: Okay. Then how does Melanie’s law applied to a Massachusetts resident with a New Hampshire DWI charge?

Mike: Melanie’s law in effect treats your driver’s history as a lifetime look-back. If you have a DWI charge in New Hampshire as a Mass resident, you may not have had anything on your record for ten years. New Hampshire uses a 10-year look-back. You could be charged in the Laconia District Court with a DWI first offense, because you haven’t had anything in terms of an OUI or DWI conviction in ten years. But if you had two or three, twenty or thirty years ago, under Melanie’s law the Massachusetts Registry of Motor Vehicles if notified of another DWI conviction, they’re going to treat you as a third or fourth lifetime offender and the penalties that are imposed by Massachusetts could be drastically different than a minimum penalty on a DWI first in New Hampshire; meaning the New Hampshire courts can say your privilege appears to be revoked for a period of nine months, do a program, pay a fine, and it’s a first offense. Then you get a notice from the Mass Registry that says, “Well this a fourth OUI lifetime offense for you, your license is revoked for 10 years”. You need to know what’s coming and how that reciprocity affects a Mass driver when they’re in a New Hampshire courtroom.

John: When your license is revoked by Massachusetts then you can’t drive anywhere. It’s not just 90 days in New Hampshire anymore. It’s now you’re not a driver.

Mike: Right. You need to understand again what the relief is that you can obtain for a Mass driver with that situation where they’re revoked in New Hampshire. The bottom line is Mass won’t grant you any relief until you’re completely cleared in New Hampshire. Then once you’re cleared in New Hampshire, you then have to approach the Mass Registry in terms of getting the license reinstated, whether it be on a hardship basis or early relief or through the board of appeal. You need to understand all of those various options that may apply to a Mass driver with that New Hampshire DWI.

John: What if the situation is reversed and a New Hampshire resident is arrested for an OUI in Massachusetts, what do they need to know?

Mike: They need to know that New Hampshire historically looks at an arrest in another state two-fold; meaning there’s an administrative component to every OUI in Massachusetts. When you get arrested, you’re typically going to see either 30-days suspension administratively of the privilege to drive in Mass because you took a test over, or a 180-day loss of privilege because you refused a chemical test at the time of your arrest. New Hampshire historically has not reciprocated on a Massachusetts’s administrative suspension. Meaning, you very well could have New Hampshire resident whose privileges are revoked in Mass but the New Hampshire DMV doesn’t take any action based on just an administrative suspension of the state which means-

John: Explain that difference again between an administrative suspension and an actual conviction.

Mike: Sure. The OUI charges the criminal charge before the district court. If there is a finding, a guilty finding, on an OUI charge in a court against a New Hampshire driver, the New Hampshire DMV will find out about it, they will reciprocate and they’re going to impose at least a 90 day loss of your New Hampshire license. That’s on a court conviction. Administratively, a New Hampshire driver’s privilege to drive in Massachusetts can be revoked through the registry of motor vehicles at the time of their arrest because they either took a test over the legal limit of .08–that’s a thirty day loss of privilege–or they refused to test and that’s a typically a 180-days loss of privilege. That’s administrative in the sense that there’s been no action in the court yet. The Registry of Motor Vehicles has notified them that they can’t drive administratively through that administrative agency. Typically the New Hampshire DMV does not reciprocate based on a mere administrative suspension. But if there is a finding of guilty on an OUI in a courtroom, the New Hampshire DMV will reciprocate and revoke that New Hampshire driver’s New Hampshire license.

An interesting…the typical first defense disposition on a plea in Massachusetts is what’s called the Continuance without a Finding. Where the driver admits that there is sufficient evidence that if the case did go to trial they could be convicted, their lawyer will usually ask the judge to continue the matter without a finding of guilty and entering for a period of one year, they do the program. There’s a loss of privilege, they are on probation and at the end of the year, it’s dismissed without a guilty finding entering. That’s 90% of first offenders. That’s the exact disposition they get. If you’re from New Hampshire and your matter is continued without a finding before the Massachusetts court, the New Hampshire DMV doesn’t recognize that disposition either. Conceivably, a New Hampshire driver facing a first offense OUI in Mass could go through the administrative suspension with no reciprocity from New Hampshire, receive a Continuance without a Finding on the OUI charge, and there will be no reciprocity in New Hampshire. They’d keep their New Hampshire license throughout. In fact, I’ve actually, in that exact situation, been able to take a New Hampshire driver with their valid New Hampshire license to the board of appeal and ask the board of appeal to give them a 12-hour hardship privilege to drive, because they still have a valid New Hampshire license. That’s actually happened a number of times in my practice.

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

Mike: Sure. My pleasure.

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