Is Breath Test Evidence Admissible in MA OUI Case?

Recently Massachusetts DUI Defense lawyers are arguing with some success that breath test results from Massachusetts OUI cases are inadmissible due to an apparent violation of the rules promulgated by the Agency charged with certifying the accuracy and reliability of the breath test device now in use in Massachusetts OUI arrests. The Office of Alcohol Testing (OAT), a division of the Massachusetts State Police, provides and certifies the accuracy of the Massachusetts Breath Testing device (Draeger 9510) to all State Police and Municipal Police Departments. Interestingly, the rules promulgated and written by OAT also require the agency to “create and maintain” a breath test operator’s manual for the newly deployed breath test machine. See Code of Massachusetts Regulations 5.01 CMR 2.04 (f). Historically, OAT provided such a manual for the last deployed breath test device as part of every certified breath test operator’s training. The older device being the recently scrapped Draeger 7110. DUI Defense lawyers relied upon this manual to challenge the accuracy of the breath test evidence and whether the police properly administered the test.

Imagine an auto manufacturer putting a vehicle on the road without an owner’s manual? Imagine any machine placed into the market for use by consumers, a dishwasher, a computer, a medical device, without an owner’s manual. Well, that is what happened when OAT moved to replace breath test devices across the Commonwealth. A highly technical, complicated machine relied upon convert a breath sample into a reliable blood alcohol result and utilized to prove an element of a criminal offense “beyond a reasonable doubt” without an operator’s manual? The new machine replaced the old machine. Why is the new machine better? Why did the old machine, the latest and greatest as of 2005 need to be replaced? The new machine is different in significant ways, including a wholly different calibration mechanism, a dry gas standard, rather than the a liquid simulator standard. The defense of any breath test OUI case requires the accused to prepare for trial by obtaining the manual that explains how the machine works and how a proper testing sequence is administered by the police. Without a manual, written by the government agency charged with providing a valid breath testing device, the defense is left to wonder how the latest device differs from the last device which it replaced and how breath testing sequences are changed.

The government argues that a power point presentation on the new device, provided only to “officers in charge” of the breath test device from each department constitutes an “operator’s manual” in conjuncture with the operator’s manual for the replaced device (Draeger 7510). The manual for the Ford Focus, plus a Power Point presentation on the Mercedes, constitutes an “operator’s manual” for the Mercedes? A hard copy of the power point presentation has a space for the designated trainee to write in notes following each power point slide. How does the defense know what OAT taught the Officers in Charge if they are not present for the power point presentation? Why are the notes from each Officer in Charge’s training provided to the defense?

The issue is not decided. If you are charged with an OUI Offense in Massachusetts be sure to hire a DUI Defense Lawyer prepared to argue the latest issues related to the admissibility of breath test evidence. Attorney Michael S. Bowser, Jr. is a Board Certified DUI Defense Specialist and he is familiar with the wide range of evidentiary issues related to chemical testing for blood alcohol content. The issue described above was first raised and presented to a District Court in Massachusetts by Attorney Steven W. Panagiotes of Fitchburg who is now pursuing an Appellate Court decision on the “operator manual” issue. Through his diligence and hard work an Appellate Court decision will ultimately decide whether a breath test device, utilized to obtain a criminal comviction in Massachusetts should be accompanied by an owner’s manual, just like your toaster!

Can I get a Hardship License? I was just arrest for DUI.

If you have just been arrested for DUI in Massachusetts or New Hampshire the answer to that question is a harsh “NO!”

First, the State of New Hampshire, like many jurisdictions, does not have a provision under the law for a “hardship” or “work/education” license. They do not exist in New Hampshire. Maybe someday the law will change. One of the reasons New Hampshire is considered one of the toughest DUI sentencing jurisdictions in the country is that they impose long administrative license suspension (ALS) periods and lengthy Court ordered DUI suspension periods without hardship eligibility under the law. If you are revoked for two (2) years for a breath test refusal period and later convicted as a second offender and given an additional three (3) year suspension by the sentencing Court, those periods run consecutive to each other and you are revoked for five (5) years without the right to seek or request a hardship license. If you are a Massachusetts resident, with a New Hampshire revocation of driving privileges, as described above, the Massachusetts Registry of Motor Vehicles (RMV) and the Board of Appeal (BOA) will not issue a hardship license during the period of suspension of your privilege to drive in New Hampshire or any other state.

The only way to obtain a hardship license in Massachusetts during any period of suspension from a DUI arrest is to be sentenced by the Court on the OUI charge. Only after the Court imposes a license loss following a plea, admission or guilty finding at trial, can you request hardship relief from the RMV or the BOA. If you’ve been arrested for a typical first offense OUI charge in Massachusetts your license is revoked for either thirty (30) days for taking a breath test at or over the .08 legal limit or 180 days for refusing a breath test. The qualifying criteria for a hardship license on a first offense OUI in Massachusetts is being placed on probation on the OUI charge, and enrollment in the M.G.L. Chapter 90, section 24D Alcohol Education Program. You cannot be placed on probation and enrolled in the 24D program unless you plead out to the criminal OUI charge, or were found guilty at trial, and then received the sentence from the Court. If you are fighting the case, opted not to hire a “plea escort service” and will go to trial it will usually be a process of several months, not several weeks, before your case goes to trial. If you took the breath test, pay the $500 reinstatement fee at the end of the thirty (30) day suspension and drive until trial. If you refused the test, you cannot drive during the 180 day Chemical Test Refusal (CTR) suspension, and you can never obtain a hardship license during this suspension. If your trial is scheduled beyond six months from the arrest date you can be fully restored upon payment of $500 at the end of the six month CTR. If you are acquitted at trial, found “not guilty” and are still within the six month CTR, you can request a hearing to determine if the Court (Judge) will order the RMV to restore your license. This is an incredibly helpful provision of the Massachusetts OUI statute. Chemical Test Refusal (CTR) suspensions are graduated depending on your prior OUI history, 180 days (no priors), three (3) years (one prior or Under 21), five (5) years (two priors), or a Lifetime suspension (three priors). Again, a hardship license is not available during these periods of suspension, but you have the opportunity to ask the Judge to vacate the CTR suspension upon acquittal or dismissal of the underlying OUI charge. This type of restoration process upon a “not guilty” finding does not exist in New Hampshire.

If you’ve been arrested for DUI in Massachusetts or New Hampshire a hardship license is never immediately available. Hire a lawyer that can explain why and when you can get back on the road with a hardship license.

What is a Motion to Suppress and How does it apply to my DUI case?

A Motion to Suppress is a legal/evidentiary argument made to the Court (Judge only) prior to trial to determine what evidence will be admissible at the trial. These Motions are often evidentiary, meaning one party or the other, usually the prosecution/government, must produce a witness to address the issues raised in the Motion. This is an incredibly import legal maneuver in a DUI defense case, because some of an arresting officer’s observations made in his narrative police report will never survive a Motion to Suppress and be admissible at trial. Also, a Motion to Suppress is an excellent opportunity for the defense lawyer to question the arresting officer under oath before trial. Police Officer’s will say the strangest things when they are not testifying for a fact finder at trial.

Examples of items or information, the admissibility of which can be challenged in a DUI case by way of a pre-trial Motion to Suppress:

Statements made by the accused

At the time of the motor vehicle stop, during field sobriety testing, in transport to the station, or during booking, to wit: “I’ve only had a couple,” “well really maybe it was 4 or 5 beers,” “I’ll try but I won’t pass that test,” “I should not have been driving,” “just drive me home,” “I’m not taking that test.” A Motion to Suppress Statements will determine before trial whether the statements are admissible and whether they were obtained in violation of your Miranda rights.

Items found on the driver or in his car

Including drugs, paraphanalia, open and closed containers of alcohol or receipts from a bar or tavern. A Motion to Suppress will determine whether the search of the person or car was conducted legally, pursuant to an exception to the warrant requirement, such as an Inventory Policy, Search incident to Lawful Arrest, or Open of Plain View Doctrine.

Field Sobriety tests, Breath Test and/or Blood Test evidence

Where the field sobriety tests conducted based on the National Highway Traffic Safety Administration (NHTSA) standards and protocols, or did the driver actually refuse the tests, but was his/her exercise of the right to refuse the tests over ridden by the police, did the arresting officer has probable cause or a warrant to seize a hospital blood test, was the implied consent statute followed prior to the request for a voluntary breath test. Lastly, did the breath test operator, or blood analyst follow the administrative rules for the gathering, storage and testing of a sample for alcohol content.

Stop of the Vehicle or Probable Cause for Arrest

A DUI defense lawyer should never automatically concede that the police had a valid reason to pull you over in the first place, continue any roadside detention or possess actual probable cause to arrest you. Was that really a “marked lanes” violation when you only rode upon the fog line once and the center line twice over the course of 1.5 miles on a windy, dark, country road? Is it a crime to drive a vehicle as if you were lost, slowly proceeding through intersections and turns? If one out of five of your rear marker lights is out, is that really a defective equipment violation? If the Horizontal Gaze Nystagmus (HGN) is inadmissible, and the driver passed the one leg stand and walk and turn test, with no slurred speech and only the odor of alcohol on his breath can the officer make the arrest? All of these issues must be answered by a Judge before trial, and a favorable ruling will result in no trial. If the stop and arrest are ruled unconstitutional, the DUI charge/complaint is dismissed.

When you are looking for a lawyer to help you defend a DUI charge in Massachusetts or New Hampshire, be sure to discuss what evidence will be admissible at trial and how the attorney will utilize viable Motions to Suppress to protect your rights.

Why Difficult Cases Should be Tried, or (Playing for the Fumble)

I pride myself on not being a “plea escort service.” I heard that term years ago at a National DUI Defense College meeting and it has stuck with me since. Any lawyer can plead you out to a DUI charge, and most will. A very select few lawyers are actually capable of stepping into a courtroom and trying a case successfully to a “not guilty” verdict. When I meet a potential client I explain to them up front that almost any lawyer they choose can negotiate for them a plea agreement to the minimum mandatory penalty for the DUI offense they are charged with. Prosecutors and police departments love plea agreements. No effort, no risk, no problem on their end. If the cost of a lawyer is your only concern, and you don’t care to win your case, hire the cheapest plea escort service you can find.

But you can’t win a case if you don’t try it. When you plead out your case, you pass on each and every opportunity you had to win it. A police report is an arresting officer’s very best version of his case. That police report is not allowed as evidence at trial, and an arresting officer’s version of events very rarely survives cross examination at trial and stands for the Judge or Jury as the absolute truth of what happened. Writing a report is much different than testifying in a Courtroom and proving the allegations leading to an arrest

Even the toughest cases should be tried, because after trial, if a guilty verdict is returned, the sentence imposed by the Court is most often the exact same sentence the plea escort service would have negotiated for you short of trial. (A “continuance without a finding” in MA – C.W.O.F. – counts forever as your first OUI offense and is therefore the same as a “guilty’ finding in that respect). Very few judges in MA or NH penalize a defendant, in terms of post-conviction sentence conditions, for exercising their right to trial, especially when they are well represented and trying a case effectively and efficiently. In fact, in my experience, most Judges are pleasantly surprised and pleased to preside over a DUI trial where the defense lawyer is experienced and actually forcing the government to prove each and every element of the offense. Judges are all former practicing lawyers, often former prosecutors or defense lawyers, and they understand the presumption of innocence, the right to remain silent, and the government’s burden of proof beyond a reasonable doubt.

What happens when you actually go to trial and decide to protect your rights with an experienced DUI Defense Lawyer? You allow for the opportunity to prevail. You can win, because you showed up, played by the rules, and forced the fumble:

The prosecutor admits that the breath test operator failed to disclose his narrative report in violation of a discovery order and the .15 breath test is excluded in the middle of a trial, resulting in a dismissal of the DWI Charge;

The rollover accident OUI case is tried before a jury, and the Judge directs a verdict in favor of the defense, when the government fails to establish that a the road in question is a “public way;”

The Jury hearing evidence of a .24 Breath test, relies upon the defense theory that the accuracy of any breath test is invalid, if a burp or hiccup can contaminate a breath test result, and the defendant suffers from G.E.R.D.;

The arresting officer’s narrative report clearly indicates evidence of alcohol impairment, but he cannot communicate that to a jury and his primary civilian witness is utterly incredible;

The breath test evidence is excluded on the day of trial because the defense discovers a violation of the Code of Massachusetts Regulations (CMR) that was developed over months of preparation and challenges raised in similar cases;

The Court orders the dismissal of the OUI charge when the government fails to provide adequate notice of the criminal OUI offense in violation of the “no fix-it” citation statute;

The Court rules that, the officer is credible in his assessment of the driver’s impairment, but he finds the defendant equally credible in his claims that he was not impaired by alcohol and renders a “not guilty” verdict, stating the “tie goes to the runner.”

This above list could go on and on, (I’ve tried several hundred DUI cases) and it is also true that any experience DUI Defense trial lawyer knows that any case tried to a Judge or Jury can result in a “guilty” finding. There are no guarantees, only opportunities. Trials are adversary endeavors not meant to played half-heartedly. A trial is a rock fight, and someone must lose and be bloodied in the end. But if you are willingly to engage in the fight, and arm yourself with the best protection, you can win.

Do I Need to Hire a “Local Lawyer” to defend my DUI charge in Massachusetts or New Hampshire?

More often than not I find myself trying an OUI case or a DWI case many, many miles from my home offices of Chelmsford, MA and Nashua, NH. Why is this? Because a good defense travels well and plays everywhere. A common mistake made by persons charged with a Drunk Driving offense far from home is to search only for a lawyer who is local to a particular court, rather than finding the very best DUI defense lawyer available to them. I purchased my last work vehicle in April 2010. As of February 2013 there are 98,000 miles on that car. In New Hampshire my DUI Defense practice in the last year has taken me as far north as Lancaster, Plymouth and Concord, and out to Keene and North Haverhill and back across the State to Seabrook, Brentwood and Portsmouth, with plenty of stops in Derry, Nashua, Merrimack and Salem and Courts in between. In Massachusetts, in the last year, I’ve appeared in Courts to defend OUI cases in Falmouth, Brockton, Dedham, Newburyport, Lynn, Peabody, Lawrence, Worcester, Haverhill, Greenfield, Westborough, Holyoke, Attleboro, Framingham, Gardner, and everywhere in between with lots or visits to Lowell, Ayer and Woburn.

I’m not a “local” lawyer to any Courts other than possibly the Lowell District Court and the Nashua District Court. Most of my DUI Defense practice is outside of these Courts. Does it make a hill of beans of difference to a jury of six in Brockton or Holyoke that my Massachusetts office is in Chelmsford? Never! When I effectively cross examine an arresting officer and successfully challenge a breath test with a winning strategy at trial nobody cares where my office is located. Does a District Court Judge sitting in Laconia or Seabrook care whether I appear in his or her Court regularly or travel up from the New Hampshire office in Nashua only a few times each year? Never! As long as I’m prepared, familiar with the facts and the law, and ready to vigorously defend my client at trial I’m welcome everywhere I appear. Experience is not a function of location. Good trial lawyers are recognized everywhere by Judges because they don’t waste time, they get to the point, and they know when and how to effectively try a DUI Defense case to verdict.

The National Highway Traffic Safety Administrations (NHTSA) Guidelines for Standardized Field Sobriety testing are not local. They are set in stone and are the basis for field sobriety test training for each and every police officer in both states through either the New Hampshire Police Standards and Training Council or the Massachusetts State Police Academy and the Massachusetts Municipal Police Training Committee. Breath testing and blood testing standards and regulations are not local. If the police violate an administrative rule for the collection of a forensic blood sample in Plymouth, NH, the same rule applies in Nashua and the test results are inadmissible in both locations for the same reason. If the police violate the administrative regulation requiring a (15) fifteen minute observation period before a breath test the results are inadmissible regardless of whether you are before the Newburyport District Court or the Worcester District Court. And certainly, the due process and constitutional protections for police stops, arrest and search and seizure as contained in the U.S. Constitution, the Massachusetts Bill of Rights and the New Hampshire Constitution, apply in every case, in every Court, in each respective jurisdiction, the only question is whether the lawyer you hired knows how to wield and raise those protections and defenses to your best benefit.

Don’t hire a local plea escort service. If you’ve been arrested for a drunk driving offense, regardless of the location and the court, hire the most qualified DUI defense lawyer willing to travel and show up with the effort and expertise to protect your rights.

Attorney Michael Bowser offers Dual State Protection in DUI Defense.

What’s going to happen in court following my DWI arrest in New Hampshire?

Drunk Driving Attorney Michael Bowser explains what you can expect in court following an arrest for a DWI in New Hampshire. Attorney Bowser has successfully defended hundreds of cases for clients charged with drunk driving, commonly referred to as “Driving While Intoxicated” (DWI) in New Hampshire. Attorney Bowser has developed a well earned reputation for being one of the top drunk driving defense attorneys in Massachusetts and New Hampshire.

What’s going to happen in court following my OUI arrest in Massachusetts?

Drunk Driving Attorney Michael Bowser explains what you can expect in court following an arrest for a OUI in Massachusetts. Attorney Bowser has successfully defended hundreds of cases for clients charged with drunk driving, commonly referred to as “Operating Under the Influence” (OUI) in Massachusetts. Attorney Bowser has developed a well earned reputation for being one of the top drunk driving defense attorneys in Massachusetts and New Hampshire.

How Will a DUI Conviction Affect My Insurance Rates?

Facing the threat of a DUI conviction is difficult in and of itself, but the consequences of being found guilty of driving while intoxicated go beyond the courtroom. In most states, being convicted of drunk driving will lead to your automobile insurance rates going up, often for three years or more. Want to know exactly how a DUI conviction could affect your insurance rates? This guide covers the basics.

Driving Records and a DUI

Most auto insurance companies routinely check their customers’ driving records for the purposes of classifying drivers, and a DUI can be a one-way ticket to a high-risk driver classification and steep rate increases. Even if your automobile insurance firm doesn’t immediately notice your drunk driving conviction, your history will eventually come back to haunt you. In cases where you’re applying for new car insurance, a DUI conviction can be grounds for insurance companies to reject your application for insurance.

SR-22 Insurance Laws

Thought auto insurance laws vary by state, it’s common for anyone who has been convicted of a DUI to have to file an SR-22, possibly for several years. For a first time offense in most states, premiums will typically be affected for three years at most. This is a statement of financial responsibility that proves you have the amount of insurance required by your state, and it is typically filed after the period of license suspension is over. Having an SR-22 will almost always put you into a higher risk category of driver in the eyes of car insurance companies, who are then required to notify the licensing agency, usually the department of motor vehicles, if your policy is canceled, terminated, or lapses.

Note: Not all insurance companies offer SR-22 policies. If yours is one of these and you are required to file an SR-22, the company will cancel or decline to renew your policy.

How High Will Your Premiums Go?

A drunk driving conviction can mean that your auto insurance policy premiums will double or even triple, and this increase in cost can last for years. Your ability to earn safe driver discounts and other benefits will typically be rescinded, at least until the SR-22 is no longer in effect. However, do shop around – there are some auto insurance companies that specialize in offering somewhat less expensive high-risk premiums.

How Long Will Your Rates Increase?

Again, laws vary from state to state, but generally a drunk driving conviction will affect your insurance status for at least three years in most states for a first offense. For subsequent convictions, the length of time is much longer.

Special Circumstances

New drunk driving laws in some states now spell out enhanced penalties in DUI cases that include special circumstances and may have a further deleterious effect on your premiums. These can come into play when someone was injured by a drunk driver or if a child was in the vehicle at the time of arrest, a blood alcohol concentration that exceeded a certain level, or cases where the accused is under 21 years of age.

In the end, it’s unlikely that anyone comes out on the other side of a DUI conviction without suffering at least some changes to their auto insurance policy and premiums. The best thing you can do, aside from avoiding a drunk driving arrest, is to call an experienced DUI lawyer before you end up facing a conviction.

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

BWIs at Laconia Motorcycle Week in NH

Bikers aren’t the only ones attracted to the week-long festivities at Laconia Motorcycle Week in NH – which is possibly the oldest biker rally in the U.S. The party atmosphere of the northeast’s largest bike week brings visitors from all of the country. Some are bikers themselves, but others are tourists seeking an early summer thrill. Unfortunately, more people means more chances for something to go wrong, so Laconia Motorcycle Week also comes with an influx of New Hampshire State Troopers that supplement the usual DWI enforcement conducted by local Lakes Region Police Departments. And that’s just on the roads! On the waters of Lake Winnipesaukee, the New Hampshire Marine Patrol will be out in force with a real presence near the Weirs and the Channel.

Boating OUIs during bike week? You bet – the party atmosphere of Motorcycle week doesn’t stop at the shoreline. Historically, in my own experience, the number one reason boaters are stopped by Marine Patrol is a failure to display proper navigational lights after dark or ½ hour before dusk. Once a stop is initiated, there will be a routine safety check for a throw-able flotation device, life jackets, a horn, lights, and a fire extinguisher. Plus, if any evidence of alcohol impairment arises during this safety check, you can be certain the Marine Patrol will invite you onto their vessel for the Coast Guard version of field sobriety tests. These include the palm pat test, finger pad counting test, and the horizontal gaze nystagmus test. Thankfully, the Marine Patrol will not ask you to stand on one leg or walk a straight line on their floating vessel!

Especially during New Hampshire’s famous bike week, when parties abound on and off the water, it’s important to remember there is no difference between a Boating While Impaired (BWI) and a Driving While Impaired (DWI) in terms of the impact on your driver’s license. A conviction for BWI will cost you your driver’s license for the same period of time as a DWI. The implied consent rules are also the same. Refusal to submit to a requested chemical test or testing over the legal limit of .08 for alcohol results in at least a six-month loss of driving privileges, automatically. Interestingly, a DWI conviction results in the revocation of your privilege to operate a boat on the waters of New Hampshire for an entire year. So if you’re in Laconia for the final days of this famous festival, remember to drive and boat safely.

Drunk driving attorney Michael Bowser has years of experience successfully defending those accused of operating a vehicle while drunk in New Hampshire and Massachusetts. If you have been charged with boating while intoxicated (BWI) in New Hampshire or have questions about OUI penalties in either NH or MA, it is vital that you talk to representation who understands the law. Call Attorney Michael Bowser today at 1-888-5BOWSER to discuss drunk boating penalties and your individual circumstances.

Stay Safe at Laconia Motorcycle Week in NH

The 89th annual Laconia Motorcycle Week is almost over, but since the final two days of what is probably the oldest biker rally in the U.S. is this weekend it’s the perfect time to say “Stay safe!” This past week, I was driving to and from Concord, NH for a case and I found myself sharing the road with several Harley Davidson riders obviously on their way up to Laconia. I also saw plenty of enthusiasts trailering their bikes and trikes up north for Bike Week. As a practicing DWI Defense Lawyer in New Hampshire, I have handled dozens of Bike Week DWI arrests over the years before the Laconia District Court in NH and every time, I’m struck by how a little caution can go a long way.

More than 250,000 riders and visitors descend on Laconia Motorcycle Week each year and the festivities can bring out the worst in some people. It’s hot, so the beer tents are packed. Parties abound. Campground gatherings usually involve alcohol. And why not? Once a year since 1916, Laconia, NH has become a party town and the celebratory atmosphere is infectious. But drinking and driving is no less dangerous on a motorcycle than it is in a car – in fact, because you’re traveling in the open air without a steel cage protecting you, a crash can be more dangerous. Plus, drinking and biking is against the law and as much as I like meeting new people, I’d rather get to know you outside of the courtroom.

Remember, Laconia Motorcycle Week brings out not only the motorcycle lovers, but also auxiliary police manpower from among NH State Troopers and a schedule of more aggressive DUI enforcement. Last year, the local Laconia, NH law enforcement authorities reported 68 drunk driving arrests and there have been deaths related to motorcycle accidents at Laconia Motorcycle Week almost every year except for 2009. So stay safe, park your bike if you’re going to drink, and enjoy the final two days of New Hampshire’s oldest and largest biker rally!

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