Category: Drunk Driving

Your OUI case involving a reported breath test result is stayed, or temporarily placed on hold, along with hundreds of other similar cases throughout Massachusetts, as a result of the Supreme Judicial Court’s decision in Commonwealth v. Camblin, 471 Mass. 639 (2015), dated June 12, 2015.

As a result of this case, the Executive Office of the Trial Court consolidated for a single proceeding, all breath test cases involving the Draeger Alcotest 9510 breath test machine where the defendant raised a challenge to the scientific reliability of the breath test device. I made the challenge in all of my current breath test cases. The single Judge (Honorable Robert Brennan) will hold hearings at the Concord District Court for consolidated cases from across the entire Commonwealth, now in excess of 500 defendants. (Copy of Scheduling Order for Consolidated Hearing Process attached as “Exhibit A”).

The purpose of the consolidated hearing process is to allow for one Judge to rule on relevant discovery requests and then conduct a single Daubert/Lanigan hearing with expert witnesses testifying for both sides. The Camblin decision allows the defendant in an OUI case to challenge the scientific reliability of the breath test device before the evidence is ruled admissible at trial. This challenge to scientific or novel evidence in Massachusetts is called a Daubbert/Lanigan hearing. At such a hearing, the burden is on the proponent of the new scientific evidence, the prosecution in our case, to prove the validity and general acceptance of the scientific opinion, theory, process or technology. (This type of hearing process takes place any time new scientific evidence is brought before Courts, for example DNA, fingerprint or trace evidence technology). Imagine the expense to the Prosecutors, Defendants and the Court system if such a hearing were conducted in every pending breath test case, over and over again. Although breath alcohol testing technology has been in use for decades, the SJC notes in the Camblindecision that the technology, processes, and software contained in the Draeger Alcotest 9510 have never been previously challenged in Massachusetts.

Specifically, the defense in the consolidated hearing process will challenge the scientific reliability of the machine’s software or source code, the calibration process and the machine’s specificity for alcohol, or its’ ability to identify and separate alcohol from all other volatiles on the human breath and in the ambient air. Included in this challenge will be discovery requests related to calibration failures identified by the Office of Alcohol Testing (OAT) and the Executive Office of Public Safety and Security (EOPSS) earlier this year and widely reported upon by the Boston Globe and other media outlets.

For the time being your case in the Court of Origin is stayed (Lowell, Ayer, Worcester, Woburn, Newburyport, Waltham, Plymouth, Dedham, Concord, Cambridge, Fitchburg, Fall River) and you do not need to appear until further Notice from my office. You can attend any hearings in the consolidated process at Concord District Court, but your attendance is not required. I expect the consolidated hearing process to stretch into early next year.

I look forward to a conclusion of this process that will allow for a better and stronger defense to your Operating Under the Influence of Liquor charge. Please contact my office if you have any questions or concerns.

Very Truly Yours,
Michael S. Bowser, Jr.

Spring is here and summer is right around the corner. In my practice that means more motorcycle DWI cases and Boating While Intoxicated (BWI) cases. Ironically, just this month I received “not guilty” findings on a 2014 Laconia Bike Week DWI and a Labor Day Weekend 2014 Boating While Intoxicated (BWI) case. It is not unusual for DWI cases to take several months to be finally adjudicated at trial before any particular District Court in New Hampshire.

Sadly, my client’s Boating While Intoxicated arrest last August was well publicized on all forms of print, television and social media. The booking photo depicting his battered and bloodied face was there for the world to see. The injuries he sustained in a single vessel crash on Lake Winnisquam made for an ugly and one-sided version of an arrest when first reported. Those same injuries proved crucial to his defense of the Boating While Intoxicated charge several months later. At trial in the matter of State v. Richard DeGregory, the defense presented evidence that the defendant was injured in the boat crash and knocked unconscious with classic signs of concussion, including loss of memory, confusion and difficulty with field sobriety testing. First responders were notified that the boat crash involved injuries and at least one unconscious person; even though the defendant refused medical treatment, he was never identified by law enforcement as the unconscious person. Medical testimony from the defense expert witness established that even the most well-trained and well-intentioned law enforcement or Marine Patrol officer will struggle to distinguish head injury symptoms from many of the classic signs of intoxication. Richard DeGregory, of Tyngsborough, Massachusetts was found “not guilty” of the New Hampshire Boating While Intoxicated charge following a thorough review and consideration of the evidence by the Laconia District Court.

The second “not guilty” finding was on a DWI arrest from Bike Week 2014. The driver of a recently purchased Harley Davidson motorcycle found himself arrested for DWI following a stop at a speed trap. The evidence presented at trial included testimony from the defendant’s companion rider. Each man testified that they arrived early on the first day of Bike Week and spent time cruising the Weirs, walking the tents and the pier, and of course visiting a few different establishments where they ate lunch and drank beer. The testimony was that each consumed only three (3) beers before their arrest in the early afternoon. The friend’s post-arrest breath test was .06. He was not charged with DWI. The defendant’s post arrest breath test was .13. Obviously, the defense had work to do. Independent testing of the defendant’s captured breath sample by head space gas chromatography showed a large discrepancy between the Intoxilyzer 5000 68 EN reported results (.13/.14) and the independent lab testing of the same samples (.14/.18). Not only were the independent results inflated, they were inconsistent with each other. Further, the defense utilized expert testimony and medical records to establish the defendant’s Gastroesophageal reflux disorder (G.E.R.D.), a condition the defense argued would account for such a wildly inflated and inconsistent breath test results. The defendant’s performance on the standardized field sobriety testing roadside was also inconsistent with such high breath test numbers. The defendant in this Bike Week DWI case was found “not guilty” on both theories of Driving While Intoxicated.

The Machine Doesn’t Work and It Doesn’t Report Simulator Calibration Errors

Pending before the Massachusetts Appeals Court is the case Commonwealth v. Cormier, et al, where the issue is the Massachusetts Office of Alcohol Testing’s failure to “create and maintain” a Breath Test Operator’s Manual for the Draeger Alcotest 9510. See 501 C.M.R. 501 2.04 Responsibilities of the Office of Alcohol Testing. This latest version of breath testing equipment was put into place over a period of the last five (5) years in all State and Municipal Police Departments by the Office of Alcohol testing. The last device, the Draeger Alcotest 7410, was, according to OAT own rules, accompanied with a Breath Test Operator’s manual for each and every police officer that was trained and certified to operate the machine for purposes of Operating Under the Influence (OUI) arrests and prosecutions with breath test evidence, commonly called a “per se” Offense. The result, Operators were trained how the machine works and how to properly operate the device, including recognition of error messages. At least they received a manual which set forth the proper training. The new machine? No manual from OAT, but you might get a copy of a power point presentation for the 9510, with reference to the manual for the old machine as a supplement to the power point presentation. How do you know what was said about each slide at a power point presentation? As a defense lawyer you used the Operator’s manual to learn how the machine is supposed to work and how an operator is to conduct a proper, valid test. You cannot prepare the cross examination of the breath test operator without the Operator manual he was trained with.

Now it has come to light that OAT has known for several months, if not longer, that the Draeger Alcotest 9510 has a demonstrated and well documented history of not working properly and not reporting errors. Each Draeger 9510 is equipped with an attached Dry Gas simulator standard at 0.08. This ethanol infused gas mixture, created by a laboratory, is used as a “standard” for the machine to calibrate itself with. In Massachusetts the machine must read the Gas Simulator Standard of 0.08 at +/- .005, reporting simulator checks between .074-.086, if a test is to be considered valid. When this does not happen the machine is required to report the simulator reading error and abort the test. See 501 C.M.R. 2.11 (3) Calibration Standards. It means the machine cannot accurately recognize the actual amount of alcohol present in any subject sample. If it can’t read a simulator standard correctly and accurately how can it be relied upon to extrapolate human blood alcohol content from a human breath sample?

According to recent disclosures, not only does the machine not recognize simulator results outside of the allowable range, it allows the evidentiary breath test against an arrested driver to go forward without notifying the Operator (Police) of the error. The machine does not work properly and it does not report the simulator error. The initial memorandum from OAT, dated March 9, 2015 to the Commonwealth’s District Attorneys cited five (5) known cases. District Attorneys in Essex and Barnstable County will not offer breath test evidence from the Draeger 9510 until further notice. Middlesex DA Marian Ryan joined in suspending her Office’s use of breath test evidence for OUI prosecutions in Middlesex County, citing knowledge of “fewer than a dozen,” similar cases in Middlesex County. The recent revelation calls into question all reported breath test results in Massachusetts on the Draeger Alcotest 9510, past, present and future.

Trial by machine is a dangerous game. It is an inherently and constitutionally unfair game when the Government utilizes faulty equipment, knows about of the defect for months or more, and fails to give full, complete, and timely disclosure to the accused and their counsel. The machine is the trial in a per se criminal offense in Massachusetts. That is what a per se (.08) criminal offense is. Standing alone, the breath test evidence, can and often does, result in a guilty finding with lifetime effect under Melanie’s Law. The prosecutor only need show a valid breath test of .08 or higher at or near the time of driving to obtain a conviction. The arresting officer and breath test operator hide behind “I just push the buttons, Counsel.” And the prosecutors closing arguments goe like this, “The machine works, it is tested, calibrated, and certified by OAT to convert a breath result into a true and accurate blood alcohol content at the time of driving.” That was the closing argument of every Prosecutor in Massachusetts until this past week. We should demand more from police, prosecutors, OAT and Draeger, before we allow Trial by Machine with the Government Breath Box.

Certified DWI/OUI Specialist Attorney Michael Bowser discusses the laws regarding drunk driving in Massachusetts and New Hampshire, as well as how to decline field sobriety testing and why you should consider doing so.

Teddy Panos: Joining us right now to talk a little bit about a number of great things that are happening with his business, his practice, is a member of our expert network, attorney Michael Bowser. Good morning Counselor, how are you?

Mike Bowser: Good morning Teddy, doing well. How are you?

New Legal Associates

Teddy: I’m doing fantastic. You’re a busy man, you just opened up a new office.

Mike: We did. We relocated the Chelmsford office over to 2 Courthouse Lane, which is right off at Drum Hill. We’re fortunate enough to have purchased a condo, did a build out so it’s a brand spanking new shiny office and we’re very happy over there.

Teddy: That makes the staff happy. The employees love something new, a new room, a whole new building, a facility, it makes going to work fun, doesn’t it?

Mike: It does. A little bit of a growing period because we went from literally, a much larger space to a smaller space, not quite as much elbow room, but it’s good every 12 years or so to empty out some of the junk that you accumulate over the course of the decade or so.

Teddy: You’ve also hired a couple of new associates as well, tells me your business is expanding, my friend.

Mike: I am very fortunate to have two lovely young ladies working for me. They’re basically sharing a position. Each of them has children at home. One has twins at home that will be two in September. Amy Manchester just joined me, she is a recent admittee to the New Hampshire bar, she’s admitted in the Massachusetts, and she worked as a public defender in Colorado for two years. Her husband is an Army captain and his deployments and his assignments brought him back to New England, so she’s just back.

She graduated from the Franklin Pierce Law Center, where I went to school now known as the UNH Law Center. And then the other associate is a young woman, Kristen McLaughlin, and she’s working a couple days a week. She’s a former public defender in Florida, graduated at BU, went to law school in Florida, and she did some really “heavy lifting” as they say, doing a lot of felony trial work down in Florida. Her husband is from the area and that brought her back here. I’m very lucky to have two great lawyers working with me.

Teddy: You mentioned one of them up in New Hampshire, you have a Nashua office as well. We’ve talked with you, you’re one of the handful of certified OUI specialists in the area here, actually in the entire country. For that matter, it is a specialty, what you do. Is that the majority of the cases that you handle?

Mike: I’ve always maintained. The civil side of my practice has always been personal injury litigation and then the other half of my practice and I’d say actually, the other 75% of my practice is Criminal Defense. But 90% of that is drunk driving defense between the two states – between Massachusetts and New Hampshire.

New Hampshire Drunk Driving Offenses

Teddy: The popular belief is that the police in New Hampshire are much stricter on those types of offenses. They really try to crack down. Is that accurate?

Mike: No. Actually quite frankly, the level over the last 10 years or so, it seems to be rising in both states. It’s always been an offense that’s prosecuted and they pursue it pretty vigorously in New Hampshire. They seem to be doing the same here in Massachusetts. There certainly has not been a drop-off in the level of arrests in New Hampshire. I think sometimes in some of the smaller rural communities, they’re limited in the number of police officers they have on the road, but they’re also limited in number of people running around at night.

Teddy: That don’t have anything else to do. Right?

Mike: If you’re out late in New Hampshire and they’re around, they’re certainly looking for those types of offenses, so it’s in force. It seems to be in the urban settings in the Lawrence, the Lowell, the Boston [areas]. In the urban settings, it’s really left – in my opinion – to the state police do most of the enforcement on the major highways and most of the municipal officers are tied down doing other types of work. And also, there’s public transportation, there’s more people walking as opposed to driving in those urban centers.

Teddy: The popular belief is that the smaller the town, the more likely you’re going to get pulled over for something. A moving violation that might turn into, “Okay, hey we want you to take a sobriety test here.” But are there not any numbers that back that up?

Obeying the Laws of the Road

Mike: Almost every, not every, but a fairly significant number of OUI, DUI, DWI arrests, were initiated by minor traffic violations, equipment violations. There’s a tail light out, the classic in Nashua, in New Hampshire, is somebody on Main Street because I see this all the time. Main Street is populated by a number of restaurants, bars, and places that people like to congregate and have a good time. If you make the mistake of getting in your car and you forget to turn on your headlights because it’s a well-lit area . . ..

Teddy: I do it all the time.

Mike: Half a dozen cases that have originated on Main Street in Nashua, where the driver has just forgotten to turn on their headlights and that’s what leads to the stop, and then the stop leads to the request for a field sobriety testing. That’s how they all begin.

Teddy: I often joked about, there’s an unwritten crime on the books in New Hampshire. I used to date a girl in Nashua and every night driving back home to Dracut, I’d get an escort from through Hudson until I hit the Tyngsboro line. I used to call it DWMP, driving with Massachusetts plates.

Mike: I’ve cautioned folks about the same thing, driving in New Hampshire after midnight with a Mass plate. Actually, by Hudson was notorious. Their enforcement has always been pretty strong and they definitely look at Lowell road, coming down past McDonalds and Walmart.

Teddy: That’s where I was going to.

Mike: Yes, and they will. I’ve had cases there where they followed cars literally for a mile or two waiting for that marked lanes violation, waiting for that minor deviation, and that’s what initiates the traffic stop.

Teddy: And the lesson there really is, look, whenever you’re driving, obey the rules of the road because it could be in the middle of the day and you’re stone cold sober, you roll through a stop sign, you’re asking somebody to pull you over. Maybe they’ll let you off without getting a ticket, but they’re going to pull you over if you’re doing crazy things, but especially if you’ve been out at night. The lesson is, don’t do anything dumb, don’t spin your tires, don’t rev your engine, obey the speed limit, drive like a normal human being, and chances are you’ll get home without any incident.

What You’ll Get Asked During a DWI/OUI Stop

Mike: And keep in mind and it’s a good point, that’s their job. They are out there to enforce the traffic laws, the rules of the road, one of those being don’t drink and drive, as you’re impaired and so, one leads to the other, that is what they’re out there to do. Keeping in mind this weekend [that there’s a] standard of proof for a DWI in New Hampshire. In order to secure a conviction in a courtroom, what they have to prove is that you are impaired by alcohol to any degree.

So when you hear that saying “buzzed driving” or anything that is [against the law]. There’s a classic question in New Hampshire that the troopers are trained to ask the driver and it’s usually at the beginning of the field sobriety testing or at the end and the question is, “Can you please rate your sobriety on a scale of zero to 10? 10 being fall down drunk, zero being stone cold sober. What do you feel like?” And if you say anything other than zero, that’s an admission of guilt in New Hampshire because it’s impairment to any degree.

Teddy: One is to any degree?

Mike: One is impairment and if you’re impaired to any degree, you’re guilty. Now my job in those cases is try to keep that admission and that statement out of evidence, whether you’re in custody or a Miranda warning should have been given. The standard in Massachusetts, if you’re out driving this weekend, is your ability to operate a motor vehicle safely reduced or diminished by the consumption of alcohol. In Massachusetts, that drunk driving standard is tied to your ability to operate a motor vehicle safely. In New Hampshire, it’s not, it’s impairment to any degree. I’ve certainly made the argument that the one or two Budweisers that my client had, he may have been impaired to fly the space shuttle or to do brain surgery but he’s a plumber, and he wasn’t impaired to drive his pickup truck. And there’s a difference between the standards in the two states for that reason.

Teddy: That was important, right? I want to back up on that again. So, officers in New Hampshire in particular, and maybe in other states will ask specific questions knowing that if they get a response, they’ve got you?

Mike: They’re trained to ask the question and I see it all the time with the New Hampshire State Police, and keeping in mind that standard is impairment to any degree. If you give them a number other than zero, that’s an admission of guilt. They always ask it at the end of the field sobriety testing, where I’m arguing or a judge there. They’re clearly in custody, they have no intention of releasing them, they’re holding on to the driver’s license and their registration, they’ve been out on the roadside with them for ten minutes, [and] they can ask that question without a Miranda warning because they are in custody and whether that statement comes in or not. But they’re definitely trained to ask that question and that is the reason – because of that standard of proof.

Teddy: What other questions might they ask that you better be careful answering? And that’s not just New Hampshire, but everywhere. We’ve talked about at the checkpoints.

Mike: They’re always going to ask – the classic motor vehicle stop is you’ve rolled that stop sign, you’ve pulled away from the curb with your headlights off, the blue lights come on and they’re going to come to the window and the first question is, “License and registration?” Which you are required to provide them by law in both states. You have to be a licensed driver, it has to be a registered vehicle.

Then the next question is, “How’re you doing this evening? Where are you coming from? Where are you going? Have you had anything to drink?” And that begins the process. If there’s an admission – they’re asking the question because they probably have detected an odor of alcohol. They may think that you appear to be somewhat leery eyed or glassy eyed, your face may appear to them to be flushed, those are the classic eyes, odor, speech. Your speech might be a little bit less than perfect. If there’s an admission, or even if there isn’t an admission, if they detect any of those indicators that they are trained to look for, they’re going to ask you to step from the vehicle to take a field sobriety test.

I’ve always reiterated to folks that you don’t have to take a field sobriety test. You certainly don’t have to answer questions. The police are typically not prepared for that response. If someone were to ask, “Where are you coming from? Where are you going?” I would look at the police officer and say, “Am I free to leave?” Of course he’s going to say, “No.” Then the response will be, “Well, then I’m not answering any questions.” Now, that’s certainly going to lead to a confrontation with the officer.

How to Decline Field Sobriety Testing

Teddy: That’s what I’m going to say. Are you looking for trouble? If you feel that you’re sober and not impaired, are you best off just answering and going on your merry way? What would you recommend?

Mike: In a legal perfect world, I would say, “Don’t answer the questions. Don’t take the field sobriety test. Don’t take the breath test.” However, that’s going to lead to some pretty serious consequences and one of which is, you’re probably going to end up being arrested. But given the level of enforcement, the way that these cases are treated, if they’re going to ask you to step from the vehicle, in my opinion, you’re probably going to the cops anyway. Because it’s probable cause, the standard to arrest, it’s proof beyond a reasonable doubt and a trained police officer, if he sees the indicators of impairment, even just a few.

I think a well-trained police officer is probably going to make the decision that he has probable cause to arrest. His job is to take people off the street that he thinks are unsafe. He’ll do that and he’ll make the arrest or he or she will make the arrest. Then it’ll be sorted out later. The consequence of those refusals of the breath test or a blood test is obviously a loss of license, and that loss of license can be in Massachusetts anywhere from 180 days up to lifetime, depending on your prior record. In New Hampshire, they have very, very long suspension periods as well.

Teddy: Now [what do] you say that the moment that officer says to you, “Step away from [the vehicle?]”

Mike: You could certainly say, “Why?” He’s going to say, “Well, I want you to participate in a field sobriety test.” You can certainly say to him, “I do not want to partake in a field sobriety test. I don’t want to participate.” “Why not? Are you sure?” The refusal has to be honored if they ask you to step from the vehicle. You have to get out of the vehicle then at that point I think you might be walking into something like resisting arrest or disobeying a police officer.

You do have to follow a lawful command even if it is, “Step from the vehicle.” You do not have to take a field sobriety test. There are often times when that happens, it discombobulates the officers because they don’t often see people saying, “No,” to that request. The field sobriety test quite frankly, you’ve been through.

You can easily – as a stone cold sober person – show indicators of impairment by alcohol on field sobriety testing when you’ve had nothing to drink.

Teddy: We’ve all driven by it at night, in the daytime. Sometimes you see the poor chap who is being tested by the officer, the blue lights are on, the white lights are there. Basically, is it safe to say that 99% of the time that ends up with somebody going to the station?

Mike: I don’t think it’s 90%. It’s probably less than that. But I think it’s more often than not. It’s clearly more often than not. [If] someone is asked to step from the vehicle, they’re going to end up in custody.

Choose Not to Drive While Impaired

Teddy: Of course. St. Patrick’s Day weekend coming up. The folks are going to go out, they’re going to hit the pubs, they gonna enjoy the music, the corned beef and cabbage, and probably have a drink or two. So the best advice that we could give is, if you feel in any way you are impaired, do not get behind the wheel of a car. Law enforcement is going to be looking for you this weekend.

Mike: Right. Keeping in mind those standards, unsafe to drive or impaired to any degree. Those of the standards that are at play in Massachusetts and New Hampshire. So keeping those in mind, be safe, be responsible.

Teddy: It will help to obey the traffic laws as well. But in the case that you find yourself in a situation that you need some help in, best place to go to get a little help is to Attorney Bowser’s offices.

Mike: Well, if you find yourself in that situation, certainly we can help.

Teddy: Massachusetts and New Hampshire offices. What’s the best way to get in touch with you counselor?

Mike: Through the website. It’s https://bowserlaw.com/

Teddy: All right. Attorney Mike Bowser, member of our expert network, thank you for taking the time to join us. Have a safe weekend yourself.

Mike: You, too. Thanks Ted.

A person can find themselves without the privilege to drive in Massachusetts, license revoked or suspended, for any number of legal reasons: An OUI conviction, a Driving To Endanger Conviction, an Operating After Suspension conviction, or classification as an Habitual Traffic Offender or even an Immediate Threat.

If the Registry of Motor Vehicles (RMV) Hearings Division does not grant relief from a suspension, the only avenue for further consideration is the Board of Appeal. The three (3) member panel (Board) is authorized by statute to review any RMV suspension listed above and consider granting relief. The Board’s three (3) designees are appointed by the Registrar of Motor Vehicles, The Attorney General, and the Commissioner of Insurance, respectively.

Most often my practice takes me before the Board sitting in Boston or Marlborough in pursuit of a twelve (12) hour hardship license for an OUI subsequent offender client. Most recently, I appeared before the Board in matters involving Immediate Threat suspension and a Habitual Offender suspension. The Board has statutory authority to exercise their discretion in reviewing any RMV suspension. The Board will “affirm” a suspension by leaving it in place, “modify” a suspension by granting relief in the form of a hardship license or early reinstatement, or instruct a driver to appear at a later date for reconsideration. A hardship license is often referred to a “cindarella license,” or a “work/employment license.”

The primary issue for the Board of Appeal is balancing public safety concerns against the hardship imposed open individuals and their families when a primary bread-winner is unable to drive. As most of these cases involve subsequent OUI Offenders the Board’s primary concerns are always expressed by the first two questions put to a hardship license applicant: “When was your last use of alcohol?” and “How do you maintain your sobriety?” If you can answer these questions to the satisfaction of the Board they will follow up with “What is your hardship?” and “How many dependents do you have?” It is always best to appear with documentation of employment, probation compliance, program completion and self-help participation, whether it be Alcoholics Anonymous or other forms or of substance abuse counselling. It doesn’t hurt to have letters of recommendation and even witnesses to substantiate your claim of hardship and worthiness of consideration for relief from the Board. The Board cannot grant relief from the requirement of an ignition interlock device (IID). The IID is required when any person having two or more lifetime OUI suspension is reinstated by the Massachusetts RMV or the Board of Appeal.

The Massachusetts OUI Law is commonly known as “Melanie’s Law.” The most important practical effect of the law is the Lifetime Look back provision. A subsequent OUI offense in Massachusetts incorporates a person’s prior lifetime history of Drunk Driving Offenses in any jurisdiction. And yes, a prior continuance without a finding (C.W.O.F.) on a Massachusetts OUI 1st offense counts as a prior offense for purposes of prosecution as a subsequent offender. Any offense resulting in a conviction, or an assignment to an alcohol education program, counts as a prior. With a C.W.O.F. on an OUI there is a mandatory assignment to complete the sixteen (16) week alcohol education program. That is why a C.W.O.F. counts for the rest of your life as a prior offense, even though the disposition is not considered a “conviction” under the law of the Commonwealth of Massachusetts. It is a lawyer’s duty to explain this unique provision of the law to any person considering pleading out to an OUI 1st charge, because: “It’s not a conviction,” but the practical effect is that it is a prior offense if there is ever another OUI arrest in Massachusetts.

Case in point. I recently successfully resolved an OUI Subsequent offense charge for a client in November, 2013. The arrest occurred in December 2012. Because this particular client had previously received a C.W.O.F. disposition on an OUI charge in 1981, hewas charged as a Second Offense OUI in 2012. 31 years later he is treated as a second offender in Massachusetts. The potential penalty as a second offender included a mandatory placement in the fourteen (14) days inpatient treatment or a sixty (60) day jail sentence, with a two (2) year probation period, and lastly the requirement of an ignition interlock system for at least two (2) years when the license/driving privilege is restored. This particular driver’s refusal of a breath test in December of 2012 triggered a three (3) year loss of license/driving privilege because of the prior C.W.O.F. The lifetime look back provision of “Melanie’s Law” effects administrative Chemical Test Refusal (CTR) suspensions through the MA RMV as well. A CTR with no priors is 180 days. A CTR with one prior is three (3) years. A CTR with two priors is five (5) years. A CTR with three (3) priors is a lifetime suspension. The only way to avoid the balance of any Chemical Test Refusal suspension, and the mandatory interlock requirement for a subsequent offender, is an acquittal on the OUI charge or outright dismissal of the OUI charge.

Thankfully, the charge in this case was dismissed outright, due to evidentiary issues involving failure to disclose exculpatory evidence by the government. When an OUI charge is dismissed outright, or an acquittal is obtained, the defendant/driver is entitled to an immediate hearing on a Motion to Reinstate his license/driving privilege. At the hearing there is a presumption that the license be restored and the Chemical Test Refusal suspension be vacated, unless the government can prove, by a preponderance of the evidence, that restoration of the license/driving privilege will endanger public safety. Most drivers, including the case in point, can avoid this showing, and have their license/driving privilege restored.

It comes as some surprise to friends, colleagues and potential clients just how far I will travel in defense of my DUI clients. The last three weeks put my DUI Defense practice throughout both Massachusetts and New Hampshire in perspective, both in terms of miles travelled and successful outcomes on various drunk driving defense cases. There is a reason I just purchased a Hybrid vehicle. 2300 miles in three weeks. I like the drives, especially this time of year. The quiet and solitude clears my head and gives me focus before trials and hearings.

• Boston Municipal Court, Suffolk County, Massachusetts
• Concord District Court, Merrimack County, New Hampshire
• Goffstown District Court, Hillsborough County, New Hampshire
• Hampton District Court (Seabrook) Rockingham County, New Hampshire
• New Hampshire Department of Safety, Concord, New Hampshire
• Greenfield District Court, Franklin County, Massachusetts
• Natick District Court (Framingham), Middlesex County, Massachusetts
• Ossipee District Court, Carroll County, New Hampshire
• Laconia District Court, Belknap County, New Hampshire
• Salem District Court, Rockingham County, New Hampshire
• Cambridge District Court (Medford), Middlesex County, Massachusetts
• East Brookfield District Court, Worcester County, Massachusetts
• Framingham District Court, Middlesex County, Massachusetts
• Dedham District Court, Norfolk County, Massachusetts
• Lebanon District Court, Grafton County, Massachusetts
• Ayer District Court, Middlesex County, Massachusetts
• Hingham District Court, Plymouth County, Massachusetts

Ironically, I spend most of my time in the Nashua and Lowell District Courts and I frequent Essex County, especially Lawrence District Court. But, I didn’t see those courts in the last three weeks because I was simply busy elsewhere.

Most of my New Hampshire DUI Defense clients are Massachusetts residents. Conversely, many of my Massachusetts DUI Defense clients are New Hampshire residents. If you practice in these two states you must know the law of each jurisdiction and just as importantly, the reciprocity issues that apply of a non-resident driver from Massachusetts in a New Hampshire DWI and vice versa. In the Courts listed above, in no particular order the following happened:

• MA OUI/Drugs charge dismissed outright (not a CWOF), MA OUI/Drugs Child Endangerment charge dismissed outright (not a CWOF)
• Not Guilty verdict obtained on NH DWI charges for Massachusetts resident, .12 breath test excluded at trial
• MA OUI charge set for trial
• NH DWI charge dismissed against Massachusetts resident, negotiated to Reckless Driving non-criminal violation
• NH DWI second offense charge set for trial
• NH DWI charge for Massachusetts resident set for Motion to Suppress and Trial
• MA OUI Charge Dismissed outright for Lack of Prosecution after nearly two (2) years of fighting charge including several trial dates
• NH DWI Charge against Massachusetts resident “under advisement” following trial where .11 breath test excluded at trial
• NH DWI Charge dismissed, negotiated to Reckless Driving non-criminal violation, despite .16 breath test, because of vehicle stop issues plea entered to Aggravated DWI charge with dismissal of DWI 2nd charge, loss of license reduced from three (3) years to eighteen (18) months trial continued pending outcome of Massachusetts Appeals Court decision on admissibility of breath test evidence in all cases involving Draeger 9510 prior to March 27, 2013 (18 similar cases pending with same issue to be decided by Appeal Court)
• Not Guilty verdict on MA OUI charge and Negligent Operation charge following jury trial
• Two separate Administrative License Suspension matters under advisement before New Hampshire Department of Safety, one involving identify of driver, the second a challenge to validity of breath test with Gastro esophogeal reflux disorder (GERD)

2nd hearing on Motion to Reconsider Court’s initial denial of Defendant’s Motion to Suppress arrest from Massachusetts State Police Roadblock. Court orders further memoranda of law on latest Roadblock issues addressed in recent SJC decision, Commonwealth V. Gray.

If you are facing a DUI charge in Massachusetts or New Hampshire be sure to hire a truly effective and knowledgeable trial lawyer, not a “plea escort service.” Remember, a great defense plays well in any forum or location. I’m always ready, willing and able to travel in defense of your DUI matter.

I just learned more about laboratory blood alcohol testing in the last four (4) full days of coursework in Chicago than I learned in the last 18 years of DUI Defense practice in Massachusetts and New Hampshire. Board Certification as a DUI Defense Specialist requires that I possess a superior knowledge of all alcohol testing practices. This latest seminar brought me to a new level of understanding of a critical phase of many DUI Defense cases, the state laboratory blood alcohol test. My sincerest thanks to Attorney Justin McShane, of Pennsylvania, Attorney Josh Lee of Oklahoma, Attorney Ron Moore of California, Lee Polite, Ph.D. , Harold McNair, Ph.D. and Lew Fox of Axiom Training Institute

The American Chemical Society’s 10th Hands-on 40 hour Forensic Chromatography course ended today at 4:30 p.m. in Chicago at the Axiom Training Institute. I’m proud to be among the small group of DUI defense lawyers in the country (180) that have completed this extraordinary course. I look forward to bringing back home to Massachusetts and New Hampshire a new found level of confidence in challenging blood alcohol test results in DUI Defense cases. Two of the world’s leading Gas Chromatography experts (McNair/Polite) taught a group of nineteen lawyers from several states, a Pharmacist, a Physiologist and a Neurologist, the basics of Gas Chromatography and the intricacies of good laboratory practice, testing protocol and courtroom defense strategies that work. Most revealing was the actual use, manipulation and breakdown of an Agilent (HP) Gas Chromatograph (instrument) and in-depth interpretation of Chromatograms (test results). Think “Telegraph v. Telegram.” It’s one thing to listen to a lecture about a testing device, it’s quite another to pull apart the machine, and then put it back together with and understanding of what each part does, and why it is important to the proper function of a machine which can generate “valid” results. This course was jointly taught by the man who utilized the first Gas Chromatograph in the United States in 1956 (McNair).

Needless to say, the man behind the curtain is revealed. Government laboratory blood alcohol testing is subject to the same human error as any other difficult endeavor. Mistakes are made in the processes of collecting, storing and testing blood samples and “reasonable doubt” lies in the ability to recognize the important issues among the data from the lab that most lawyers would not recognize, never mind request. Not surprisingly, data manipulation can also with the use of a Gas Chromatograph and the production and interpretation of a Chromatogram. A DUI defense lawyer must be capable of recognizing the inconsistencies caused by data manipulation. The Lawyers can learn more than the “button pushers” to protect the rights of the accused driver. This lawyer has.

Pictures From the Trip

It is hard enough to face the penalties and consequences of a first DUI offense in Massachusetts. But what will happen to me if I am charged with a second DUI offense under Melanie’s Law and the Lifetime look back provision of that statute?

Typically, a second offense DUI in Massachusetts will trigger application of the minimum mandatory penalties from the Court. The maximum penalty is a two (2) year loss of license and up to 2 ½ years committed to the House of Correction. Which minimum mandatory penalties for a second offense DUI apply depends on how long ago your prior offense occurred. A second DUI Offense in Massachusetts can be treated as a first offense, one more time only, if the prior is more than ten (10) years ago. This second “first offense” is commonly referred to as a “Cahill” disposition. Under the Cahill decision, the Court is allowed to sentence a DUI Offender to the first offender program under M.G.L. Chapter 90, section 24D, to include one (1) year probation, the 16 week alcohol education program, and as little as a forty-five (45) day loss of license, with the ability to get a 12 hour hardship license. The sentencing Court can also, in Its’ discretion, continue the matter without a finding (C.W.O.F.).

The mandatory minimum penalties for a Second Offense DUI in Massachusetts when the prior is within ten (10) years is most often either a sixty (60) day jail sentence or placement in a fourteen (14) day inpatient program with a suspended jail sentence. The Court will impose a period of probation for two years and order a two (2) year loss of license. As most DUI repeat offenders appear before the Massachusetts District Court with little, or no other prior record, the minimum penalties most often apply. Caveat! A Cahill disposition may be available prior to trial, but not after a guilty finding from a Judge or Jury following trial.

Lastly, the Registry of Motor Vehicles requires an Ignition Interlock Device (IID) for any person convicted of a subsequent (2nd) DUI offense during their lifetime. The Ignition Interlock must be installed during any period of early hardship reinstatement plus two years. With a Cahill disposition the Hardship License is available within three (3) business days of sentencing, just like a regular first offense, subject to an ignition interlock device for the period of suspension (45 days), plus two (2) additional years. On a standard Second DUI Offense in Massachusetts (non-Cahill) the loss of license is two (2) years with hardship eligibility after one (1) year of suspension is served. In this scenario, the Ignition Interlock Device is required for the one (1) year of hardship license, plus an additional two (2) years when the license is no longer restricted by hardship hours. A person charged with a Second DUI Offense in Massachusetts who efused a breath test at the time of their arrest will also incurr a three (3) year Chemical Test Refusal (CTR) suspension imposed by the Massachusetts RMV. Significantly, the RMV will allow a hardship license for this three (3) year suspension period under a Cahill disposition.

Attorney Bowser is experienced in the application of all Penalties for a Second DUI Offense in Massachusetts and representing those charged with this offense at trial. A “not guilty” verdict on the second offense DUI avoids all of the Court imposed penalties.