Changes to Drivers’ License Revocations – Expert Network Interview, April 1, 2016

Learn about the recent changes to drivers’ license revocations in relation to drug possession laws and how you may be able to get your license reinstated.

Teddy Panos: We need to bring in our first guest of the morning. He is a member of our expert network, Attorney Michael Bowser. Good morning counselor. How are you, sir?

Mike Bowser: Good morning. Sorry to interrupt the debate.

Teddy: Do women lawyers make equal pays as their male counterparts?

Mike: I think they certainly do.

Teddy: Yes, they do because they do the equal work, right?

Mike: Absolutely.

Teddy: Whether you’re a woman or a man in the courtroom doesn’t really make a difference in your ability to do the job.

Mike: I have two women lawyers that work for me and they are paid the same as any man would be paid that would work for me.

Teddy: They don’t have a woman’s court and a man’s court where one makes more revenue than the other.

Mike: No, one playing the field for all.

Teddy: Just double-checking. All right, how are you doing?

Mike: I’m doing fine.

Teddy: You care to chime in, would you like to take the case of Han Solo or Hope Solo or whatever her name is?

Mike: No, the debate, and I’ve heard the same debate is why are women paid less than men in athletics? They would say that most men have no interest in women’s athletics unless their daughter, sister, wife is engaged in that particular sport. I think, There’s a little bit of truth to that. Most men are more interested in watching a men sport than a woman sport unless they have a loved one involved in the particular event.

Leslie Bodor: Like I said, if I had daughters, I would have brought them to those games.

Teddy: Yes, you definitely go to the women sports where you don’t have to pay anything to get in. Those are a big draw. I’m trying to drag you in, you’re smart man counselor.

Mike: I’m a former coach and I coached girls through hockey for a number of years and I’m a big fan of all women’s athletics.

Leslie: Told you, I like this guy.

Teddy: Did you ever have one of your girls’ teams play boys’ teams just for fun?

Mike: I had my girls playing with boys for a couple years and then we had an all girls team, they held their own day in and day out and then we split it into a girls-only team at a U14.

Leslie: Because they didn’t want to embarrass the boys anymore?

Mike: We also played some boys teams at that time.

Teddy: How did you do?

Mike: We did very well. Hockey as an example is just a wonderful sport for women.

Leslie: Yes, absolutely.

Teddy: It’s one of the fastest-growing women’s sports.

Leslie: Yes.

Mike: Amongst adult women as well.

Leslie: Well yes, that’s very true too.

Elimination of Automatic License Revocations for Drug Possession Convictions

Teddy: Let’s talk a little bit about some big news this week about getting your license back or the automatic suspension of a driver’s license for a drug conviction. That looks like it [was] yesterday.

Mike: Signed into law yesterday, there will be a line out the registering doors involve Boston Lawrence, Lomington, well no, not Wall because they don’t have a hearings division.

Teddy: Because the line’s already long enough than what governor Baker did.

Mike: He signed into law under chapter 94c of the Mass General Laws, he eliminated automatic license revocations for drug possession convictions all except for trafficking offenses.

Leslie: This is conviction.

Teddy: So, this is retroactive.

Mike: Applies to everyone.

Teddy: If last year got arrested for smoking a doobie in my Benzy.

Mike: For instance, yes.

Leslie: And were convicted for it?

Mike: More important, there are people that had, for instance, possession with intent to distribute which is different than trafficking. but if you had possession with intent to distribute, you could be looking at a five-year suspension. Four-and-a-half years ago, three years ago, two years ago someone with that suspension can now literally walk into the registry, meet with the hearings officer and they are going to reinstate that driver’s license. The purpose behind it is because they’ve realized that essentially — and this is true with drunk driving suspensions as well, you can incarcerate a person, you can punish them [and] that is certainly punitive, but then you take them off the road for years and they are essentially unemployable.

Leslie: That’s very true.

Teddy: Let me ask you a question, they’ll all get their licenses back, you don’t have to prove anything do you?

Mike: The reason they make everyone, even coming off of any suspension, you’re required to meet with the hearings officer because the hearings officer who works the Registry of Motor Vehicles has access to two things which the average person at the counter at the registry does not. They have access to the National Driver Registry which determines whether you have suspensions pending in any other jurisdiction. Have you been in trouble somewhere else that hasn’t been cleaned up yet and more importantly what is your quarry reflect, your border probation right? They have access to your quarry records so that hearings officer needs to make sure that you’re clear in the National Driver Registry, they have need to make sure that you don’t have any other pending, open or defaulted criminal cases. Then once you’re through with those two steps with the hearings officer, they’re going to be able to put people back on the road. I literally believe that there is going to be lines at all of the registry branches for literally hundreds and hundreds and hundreds [of] people.

Getting a License Reinstated

Leslie: Now, sometimes a license is suspended halfway through the issuance of the license, when they come back, are they getting a five-year license right off the bat, a year license, a temporary license, what are they getting?

Mike: I think that they’re going to have to retest, because if the revocation is for in effect for more than one year, typically the registry policy is they make them retest, including a road test. They’re also going to be inundated with a lot of road tests [for] a lot applicants, but these people at a minimum are going to be given a permit and they’re going to be able to schedule a road-test.

Teddy: But it’s not an automatic that you get. If you’ve misbehaved in the process, this is not the free pass. You have to have been on your best behavior, no subsequent issues or whatnot.

Mike: Right. What happens and this is true of what happens with most people, they get suspended for whatever reason and then if they continue to drive, they have no other way to get to work and they get arrested and charged with op after suspension. They eventually find themselves in a position where they’re classified is habitual traffic offenders. If a person has done that subsequent to the revocation for the drug possession, they’re still going to be revoked as a habitual offender.

Teddy: What happens if you re-offend, let’s say I’m a one-time offender, I’m forgiven but lo and behold I get my license back in six months from now, is my record wiped clean or is this now a second offense, a third offense, and the subsequent penalties follow a second or third offense?

Mike: Well, if you were to be charged today with a possession offense, it’s not going to trigger a loss of license if convicted even if it’s a subsequent drug possession offense.

Drug Trafficking Offenses

Teddy: Drug possession period is now is not tied into license at all?

Mike: Unless it involves driving. If it’s not related, you will not suffer as a consequence of a drug possession conviction a loss of license except for trafficking in Fentanyl.

Teddy: What’s the difference with trafficking?

Leslie: Trafficking period and Fentanyl.

Mike: Trafficking is a felony.

Teddy: Okay. What’s the difference between trafficking and possession with intent to distribute?

Mike: Weight, 14 grams for instance. I believe it’s 14 grams of cocaine or heroin, it’s a weight issue for every particular class of a controlled substance. If you are above a particular weight, then it is considered trafficking.

Teddy: The lesson to the drug dealers is don’t put more than 14 grams of drugs in your Benzy at any given point in time. 13.14 ounces is the way to go?

Mike: I’m sure there are some people that operate in just that manner for that reason.

Leslie: They only put in one big bag, not individuals.

Teddy: I said it to be funny, but trust me the criminals know the law better than most law-abiding citizens.

Mike: They certainly would.

Teddy: They would be very smart. What if I get arrested for trafficking in my home? They come into my home they bust my home and they found two tons of marijuana or heroin, it doesn’t have any effect on my driving.

Mike: I believe they left the trafficking offense alone. That triggered a loss of license before the change in law.

Teddy: Whether you are in your car or not?

Mike: Correct.

Teddy: Okay.

Mike: And still will.

Teddy: All right so because the thinking there is we don’t want drug dealers to be able to use their car, we want to make it more difficult for them to transport their goods.

Mike: They’re just drawing a line in the sand — trafficking as a felony, it’s not a case that was ever resolved in the district court, it’s always an indictable offense that goes to the Superior Court. The drawing a line at most of these routine drug possession cases that are in the district court, they’re going to treat differently than the major felony trafficking cases.

Contacting an Attorney for License Reinstatement

Teddy: When can I go and get my license back if I’ve fallen under this thing?

Mike: Today.

Teddy: It starts today?

Mike: If they signed it into law I believe, if it wasn’t Wednesday it was yesterday.

Teddy: What if I go and I get denied, is it over or would that be a good time for me to call attorney Mike Bowser?

Mike: It might be a Board of Appeal issue and you may have the ability to take the registry’s decision and appeal that to the Board of Appeal, which is often a route that you go when there’s a denial of a reinstatement or a hardship.

Teddy: Should I do that on my own or would it be wise for me to have an attorney [for] the entire process?

Mike: Most of the folks that I deal with, if they’re going in to see a hearings officer with the intent of being reinstated, I’m going to send them on their own, because they’re either going to do it or not. It’s rare for hearings officer to deny it for a legal issue that a lawyer would help, but at the Board of Appeal, I would suggest that you have an attorney.

Changes to the Interlock Hardship Law

Teddy: All right. Couple of other changes, a change in the interlock hardship law.

Mike: Yes. There’s also a proposed Senate bill that is in the pipeline and the legislature and maybe you could speak to some of your guests here that are part of that house. They’re looking at giving multiple subsequent offenders, second offenders, third offenders, fourth offenders the ability to obtain an interlock license, what they’re referring to as an interlock license which is a full 24/7 drivers license with an ignition interlock device and they can get it much, much earlier than they could in years past.

Now, [in the instance] of a third offender felony [there] is an eight-year loss of license, the registry would make you wait four years, the board of Appeal might consider you after two years, [with the] proposed bill, which I guess is supported by MADD, which is significant Mothers Against Drunk Driving Once your period of incarceration is over or you’re on a second offense [and] you’ve finished the inpatient program at the House of Correction sentence, you would have the ability to apply for and receive through the registry, not the Board of Appeal but the registry, an immediate interlock license, meaning you’re back on the road driving. Part of it is the technology now is caught up.

Mike: They’re using facial recognition. So when you use what I refer to as the blow and go, the interlock ignition, it actually has a screen and a facial recognition component. So when you’re blowing into the device, it’s looking at you, and it knows it’s you.

Leslie: Because you could blow into . . ..

Mike: Right. The older versions you could certainly hand the tube off to a passenger. I have seen people that have tampered with these devices and come up with various ways to pump air through a particular device. I think now the technology is such that I think they’re feeling safer about giving people that opportunity again. You take someone off the road for eight years, ten years, or a lifetime, [and] they’re unemployable.

Ted: You’re hoping lesson was learned and we’re not going to re-offend.

Mike: Again, the punitive component is six months in the House of Corrections, sixty days in the House of Corrections. Right now, I think they’re giving people their opportunity to at least work.

Leslie: Think about that too. I mean you can commit murder, do 20 years, come out and have no license ramification whatsoever.

Driving in New Hampshire & Other States

Ted: How does this affect my ability to drive in New Hampshire? Everyone who’s going to go get their license back today. New Hampshire may not have passed the same law that we have. Am I able to drive with my Massachusetts license in New Hampshire?

Mike: You are. The only entity that can revoke your New Hampshire license is the state of New Hampshire. And the reverse is true. In Massachusetts its a Mass resident. Only the Commonwealth through the registry or court can revoke a license. If Massachusetts sees fit to give someone an interlock ignition license that allows them to drive. Then they can certainly take that and drive anywhere else in the country.

Ted: What if I had my license revoked in both states?

Mike: You need to clean up the mess in both states. Massachusetts again, this is where you see a hearings officer. If you have a mess in New Hampshire that you haven’t cleaned up, that needs to be squared away before Massachusetts will even consider you.

Ted: All right. So I would still need to convince the folks in New Hampshire to forgive my transgression. They’re not in on this though, they’re still keeping their laws as is?

Mike: They had a change in January in New Hampshire for the first time. As of January first, it’s allowing for limited employment licenses, limited licenses for purpose of education, drug counseling or medical appointments. And if you’ve served half of your suspension time on a first pony, on a first offense. Not a second, third or fourth. Only on a first, you can obtain a driver’s license on a limited basis subject to the interlock on a first offense.

That’s new law, and I believe that’s a work in progress. We’re struggling, figuring out as we go how well this is going to work, but is the law in New Hampshire now that a first offender can get a hardship license.

Leslie: I have a question. If once a license has been reinstated, it’d be the same exact rules for everyone else? You come out, you get your license issued to you for five years. No problems at all. Someone’s asking that when you get your new license, if you go today after the hearings in the court, the National Driver’s License if you’re okay, and then court you’re okay, you get your five year license I would assume.

Mike: Under the drug law or under any other law? Because if so for instance, in drunk driving cases, if you have a suspension for two years, or eight years, or 10 years. If you’re granted relief today as the law exists through the Board of Appeal, they’re going to give you a 12-hour license. The 12-hour restriction applies for the balance of that particular suspension. Whether you have six years left, or one year left, or eight years left with an interlock. And then once the period of suspension is over you can drive 24/7, but you have to maintain the interlock for an additional two years. So it’s the suspension for 12 hours, whatever’s left of it with an interlock, plus the interlock for two years on and after that.

Ted: Lastly, you had a big week in court. What did you go? Three for three with verdict?

Mike: We had just an incredible stretch which is I think it’s typical of my practice. I was in Springfield, which I don’t go to Springfield all that often. But I was out in Springfield on an OUI third, and these shows you the impact of Melanie’s Law. In Springfield for an OUI third offense felony level offense not guilty verdict where we prevailed on a motion to suppress. Where the court, it was up in Newburyport granted a motion to suppress, and let us know through the mail that the arrest the stop the seizure of the client was deemed illegal, which will result in a dismissal of that charge.

That is typical of my practice. Everywhere from Springfield up to Newburyport, and everywhere in between with lot of New Hampshire stuff going on. A very weird, a very good week.

Ted: You don’t always get weeks like that, right?

Mike: Absolutely not. No, it was a great stretch of trials and good juries. I don’t know. I had a good week, absolutely.

Ted: As we always like to tell them, counselor, we hope that folks never need your services, but we know that someday, somebody will. How do they get in touch with you?

Mike: The website is https://www.bowserlaw.com/. Offices in Nashua and in Chelmsford and it’s 1-888-5BOWSER.

Ted: All right Bob. A member of our expert network, Attorney Michael Bowser. Thank you so much for taking the time to join us this morning.

Mike: Thank you.

Drinking and Driving Laws – Expert Network Interview, March 17, 2016

Learn about drinking and driving laws in Massachusetts and New Hampshire from Board Certified OUI Attorney Michael Bowser.

Teddy Panos: I’m impressed to welcome in our first guess this morning. He is a member of our expert network and his timing is impeccable. He always comes in on the days when we have the goofiest discussions, but he’s also smart because he knows it’s Saint Patrick’s Day and despite everyone’s best admonitions to behave, be smart, don’t drink and drive. If you do drink, make sure you have a designated driver.

Invariably there’s going to be one or two knuckleheads out there that are going to get in trouble and when they do you’re going to want to pay attention to our next guest, Counselor Michael Bowser. Good morning Sir, how are you?

Michael Bowser: I’m doing fine. I swear you guys are few minutes fast.

Leslie Bodor: Are we?

Michael: Yes because I was coming off the connector and it’s not 7:49. It’s actually 7:42.

Leslie: We have a bit of a delay here.

Michael: I’m doing my best.

Teddy: How are you?

Michael: I’m doing well. How are you also?

Teddy: Good. Are you ready for your phone ringing off the hook tomorrow morning?

Michael: I’m anticipating actually. The State Police are graduating a new class.

What to Expect from New Officers 

Teddy: Are they really?

Leslie: Yes, next week.

Michael: Yes and for the last few years they’ve actually had classes. For a number of years they did not, I think for almost a decade they hadn’t graduated any class.

Leslie: That’s a long story, I lived it personally. We’ll talk, but yes.

Michael: I actually anticipate an uptick in business related more to having more troopers on the road as opposed to the particular holiday.

Leslie: And you know why that is? The troopers are being trained. There’s a three-month training period where troopers are coaches. We adopted after your field training officer. We stop everything so we can teach.

Michael: Right. They ride shotgun and a more Senior officer will ride shotgun with a newbie.

Leslie: I was a coach.

Michael: Right, in the FTO.

Teddy: Stay off the highway.

Leslie: We literally stopped everything. I would [say] “What can you stop him for?” and we would. Teach a motor vehicler how to stop. The next three months [will be bad for you] folks. If you see two troopers in a cab, excuse me a car, that’s a bad sign for you.

Michael: It’s a teaching moment for the State Police.

Leslie: We ride alone normally.

Michael: Could be trouble for you.

Teddy: Now, are they handing out tickets or are they doing warnings?

Michael: No, the whole purpose is, they have a six-month academy. They go through quite a bit of training, but once they are posted to a particular barracks, they don’t let them ride solo. They ride with a Senior officer, a field training officer and they literally put them through the ropes on the road, “This is how we do it at troop A,” and hand over. From writing a ticket to making an OUI arrest. UDC one enforcement.

Leslie: Teddy, I could have been your coach.

Drinking and Driving Laws Defined

Teddy: Pretty scary. Lots of talk about with you. First of all, I know you make money off people making dumb decisions by drinking [and] driving under the influence.

Michael: Allegedly.

Teddy: Yes. You’re also very good about telling people don’t do it, don’t put yourself in that situation where it’s even questionable whether you are impaired or not.

Michael: Yes. I just had this conversation last night with a particular person. The definition of drunk driving here in Massachusetts is whether your ability to operate a motor vehicle safely has been impaired, reduced, or diminished by the consumption of alcohol. That’s a moving target that’s different for everybody based on size, weight, sex, what they’ve had to eat, and what they drank over what period of time.

In New Hampshire, where I also worked, the definition of intoxicated for purposes of a DWI prosecution is impaired by alcohol to any degree. I think we’ve had this conversation where they’ve said that they say to the person roadside, “If you rate yourself from zero to 10, 10 being fall-down drunk [and] zero being sober, how would you rate yourself?” And if you answer that question with anything other than a zero, you’re making an admission to guilt by their definition.

Leslie: Well, right. You are giving me a probable cause to continue to march.

Michael: Correct. It’s a law standard.

Teddy: I knew that [the] New Hampshire standard was different. I didn’t know that that’s how they trapped you though.

Michael: Well, it’s one of the questions they are trained to ask.

Leslie: That’s a very thin line there [with] the entrapment, Ted.

Teddy: Well, most people, because they’re like, “I’m two, I’m not drunk.”

Michael: But keeping that standard in mind, when I say make good decisions, you have to keep that in mind. That it’s a low threshold, it’s not what many people think it to be.

Teddy: This is not a good day or night to roll through a stop sign or red light or [taking] that right on red without stopping completely. It’s better I don’t take that right on red. Let [the person] behind you honk at you. Don’t speed, don’t text, don’t do anything that will draw [attention to you.] Make sure your tail lights are on, make sure your headlights are on when you pull out of that parking lot at eight o’clock at night.

Michael: I’m heading on Woburn today. I have a Woburn district court case that was initiated — the OUI stop was initiated by a trooper behind a car and it was nighttime. He could see the bubbles on the smartphone from his position behind. He could see the text bubbles on the driver’s phone, and that was the reason for the stop — the texting and driving.

Marijuana Laws

Teddy: I thought of you Tuesday. I was picking up friends from Logan Airport. We were driving back on 93 and there’s a lot of traffic and especially where 93 meets up with 128 and 95. Looking over to the left [there were a] couple of dudes in a white SUV. One of them was rolling a party. Literally, now it was the passenger, but the driver is watching him and talking to him like he was instructing him on how to do it. Marijuana. If I’m in a car and I have a container of alcohol and it is open, I’m breaking a law.

Leslie: Correct.

Teddy: If I’m in a car and I have marijuana, even if it’s not lit but I’m rolling it and preparing it to use it at some point, am I breaking a law? Even if it’s less than an ounce?

Michael: If it’s less than an ounce you’re not breaking the law. It’s not a criminal act, it’s a civil infraction and you can be cited for a civil infraction. But the mere presence of that marijuana or the mere presence of the odor of recently burnt marijuana is not probable cause, and Leslie mentioned to keep on marching for probable cause to get you out of the car. It’s not probable cause for an exit order.

Teddy: I can’t have a bottle of wine that’s been opened or a bottle of vodka that’s open, but I can have marijuana?

Michael: You can. It’s not a criminal act.

Teddy: Okay. Interesting.

Michael: Again in Massachusetts, a lot of people are surprised when they drive to New Hampshire [or] Maine and they start talking to the local PD or the State Police in those two states about, “but it’s legal” — no it’s not. It’s still very much a crime in New Hampshire and it’s still very much a crime in other states.

Teddy: What is happening legally in terms of driving and marijuana? We heard last week, Senate President Stan Rosenberg told us he actually supports the new legalized marijuana thing. The Senate released its report. Its finding is on Colorado. They actually found I think that operating under the influence of marijuana has increased significantly in Colorado since they legalized it. We now have medicinal marijuana here in Massachusetts. After November we may have legalized marijuana, period. We’ve always found that the laws always take a long time to catch up to reality. What’s going on in that field?

Michael: It’s incredibly difficult for law enforcement, I believe to have any kind of really reliable tool to enforce a driving under the influence of marijuana offense. It’s a crime to drive under the influence of a controlled substance, a prescribed medication or liquor. With liquor, we have this standard .08% and everybody I think when you say .08%, they know what you’re talking about.

That is the legal level of intoxication Massachusetts [and] New Hampshire. Every state in the country has that legal level. [It’s] .02%, if you’re under 21. For the use of marijuana, there is no per se. They could tap your vein, draw blood. There is no per se level of THC within your blood or the metabolites of THC that appear in your blood where they can say, “Okay that is a benchmark, you’re too high to be driving.” So there’s no such thing.

Teddy: They can tell you’ve used from a blood test, but they don’t know to what percentage in your blood or what not.

Michael: And you could be someone who smokes routinely, or heavily, or often, and that particular level in your blood maybe [has] a different affect.

Leslie: Same thing with an alcoholic.

Michael: Yes. Different effect than someone who rarely, if ever, smokes. But again, there is no standard or benchmark in terms of a particular legal level and most of the testing that is done roadside, those [are] what we called field sobriety test, the standardized three is what’s called the Horizontal Gaze Nystagmus test which is an eye test. A walk-and-turn, which is walk the line. Nine steps up and back and then balance the leg. Teddy we’ve been through this.

Teddy: Yes. I failed it somewhat.

Michael: Those tests are designed to elicit clues or indicators of possible impairment by alcohol. They are not designed to elicit clues or indicatative of impairment of other substances. They’re some but not all and certainly not marijuana. I was in a case in Ossipee, New Hampshire, yesterday, and the client was arrested. Charged with operating under the influence of drugs. He was 0.00% on the breath test. So there was clearly something else going on in the opinion of the officers. They’re going to have a terribly difficult time proving what, because there was not a blood test and it’s a very difficult thing to prove.

Teddy: Yes. What happens in the court? How do you prove that?

Leslie: The laws will change. They’ll adapt eventually.

Teddy: But it is a subjective thing as the Counselor says, unless you get a blood test.

Michael: Right. And then you’re bringing in a Toxicologist or an MD because whatever is in your blood — again .08%. You can give a .08% to a jury and say, “This is the legal level of alcohol.” You can give them any number of different of numbers for the presence of various drugs. Nobody knows what that means. You have to have a Toxicologist or a doctor come in to the courtroom and say, “Oh, 232 milligrams per deciliter of this particular opiate is impairing and this is why.” So it’s a very difficult thing to prove.

One of the things they have is what’s called the drug recognition expert or a drug recognition evaluation. That’s an attempt to train police officers to screen drivers for the use of other substances.

Leslie: Yes, that’s what I was talking about. One of my trooper classmates has gone to that.

Michael: Many have. In my practice, I have been successful in excluding the opinions and the testimonies of DRE’s, one because oftentimes they’re asked to comment on an arrest where they weren’t part of it. They read the paperwork and try to give an opinion, which is unacceptable in my opinion. Other cases I’ve had I’ve said that you need to have proof that the protocol, the training behind the protocol is scientifically acceptable.

Why is it acceptable for this police officer to take these tools and then to render an opinion to a judge or a jury, without someone to come in and testify why that protocol is scientifically reliable? I’ve had those opinions excluded as well.

Leslie: It’s fairly tough though because it’s still in the very beginning stages. As a citizen, I want to make sure that the rules are in place for everyone and not a subject rule. I think it’s coming along but I don’t think anybody — I think it’s correct to be having this thrown out for now.

What Police Officers Look for During a Stop

Teddy: It’s eight o’clock here on 980 WCAP chatting with Attorney Michael Bowser. Remember all these new environmentally friendly containers to drink their water and maybe they’re Vodka and cranberry or whatever, officers can’t see what’s in it. What qualifies as probable cause? What will tip off a trooper, an officer that maybe this person isn’t just sipping Dunkin’ Donuts coffee? Maybe there’s something else. Maybe they’re not just rolling the joint but they’ve actually smoked it. What type of things can they use to stop you?

Michael: There’s two steps to that particular analysis. When anyone comes into my office they’re going to ask me, “Well, what are we going to do?” One of the first things I say is, “Well, we don’t concede anything.” That starts with the stop of the motor vehicle, the exit order to participate in field sobriety test, probable cause to arrest. In order to pull you over and stop you, or just seize you and they call it a Terry stop. You walk up to someone on the street and say, “Hey, what’s your name, where are you going, what are you doing.”

That’s the same test that they need to pull you over. Reasonable, articulable suspicion. You’ll never hear those three words together in the English language except when you’re talking about search and seizure law. Whether the officer has reasonable, articulable suspicion is the test to whether [or not] they can stop you. Is there a taillight out? Did you roll a stop sign? Were you weaving sufficiently over marked lane so that they have reasonable, articulable suspicion that you committed a civil motor vehicle violation? They can pull you over, put on the lights and stop you.

Probable cause is a higher threshold, a higher standard than that. Probable cause is whether they have sufficient information available to them that a reasonable person would believe that you have committed the offense. I say to juries all the time that is an opinion that the police office has reached.

Leslie: A professional opinion.

Michael: Yes. Professional based on years of experience, based on field sobriety, based on training. At some point, they’re going to reach a point in the investigation where they believe they have enough information that a reasonable person would agree with them that the OUI offense has been committed. That’s a higher threshold. I say to juries all the time, “Probable cause to arrest is certainly not proof beyond a reasonable doubt that you committed the offense. That officer is entitled to his opinion, [but] it is an opinion. And your job as a juror is to determine whether that opinion is proof to a moral certainty.” That’s a much higher threshold which is proof beyond a reasonable doubt.

It’s reasonable suspicion to stop you. It is reasonable suspicion to continue the investigation, the conversation, the field sobriety test. Then it is probable cause to arrest, which is whether a reasonable person, looking at the facts that you’ve gathered up to this point, would agree that you committed the offense. That’s it. It’s a scale and it’s a very large scale from reasonable suspicion, probable cause all the way up to proof beyond a reasonable doubt.

What to Do (and Not Do) During a Traffic Stop

Leslie: Teddy, so many times you write your own ticket. I’ll have a motor vehicle violation and a reason to stop you under Mass General Law Chapter 90, to stop. But once I get to the window, it’s your show. You, through a conversation with you, are either going to build a case for me and I’ll look for probable cause to move forward, i.e., you roll the window down and I smell weed, etc. Or your statements, etc. You’re writing your ticket at that point.

Teddy: I get pulled over tonight. What am I required by law to do, say, and hand over to the officer? What don’t I have to do, and specifically, shouldn’t I do if there’s any doubt in my mind that I might get myself in further legal trouble?

Michael: I’m not going to make any friends here within law enforcement. However, when you are stopped for a moving violation or stopped by an officer you have to be a licensed driver, and you have to be driving a vehicle that is properly registered.

Teddy: So I have to turn those over.

Michael: Absolutely.

Teddy: Should I roll my window all the way down and hand that out? Should I do what you see some of these antagonistic people do — crack it and stick it out a little?

Leslie: I wouldn’t recommend that.

Teddy: Tell me how to do it.

Leslie: Because I’m going to tell you why I wouldn’t recommend the crack.

Michael: You’re giving them further facts.

Leslie: I’m adding that to my list of odd behavior too, because I’m not just looking at your sobriety in your eyes or whatever influence. I’m looking at your behavior and how odd it is. I’m notating that as well. Because if you refuse those tests, I can still lock you up by your odd behavior. The window, the crack, there’s, “My husband didn’t want me to open the door.” That kind of thing. I watch that, and I can add a probable cause list just by your behavior.

Michael: In a perfect criminal defense posture, the police officer pulls you over. The officer approaches the window, you roll the window down. You hand him the license and registration and the first thing he says to you is, “How’s it going this evening? Where are you coming this evening? Have you been drinking this evening?” At that point you’re entitled to say to that officer, “Am I free to leave?” The response from the officer to that question is going to be, “What are you talking about?”

Leslie: “What did I just do?”

Michael: You’re going to say, “Well, can I leave?” He’s going to say, “No, you can not.”

Leslie: He certainly is going to say, “No.”

Michael: Then you’re going to say, “Well, I’m not answering any questions.” You’re not required to.

Teddy: Isn’t that suspicious behavior?

Michael: Absolutely.

Teddy: So I shouldn’t say, “No.” Should I say, “No, I haven’t been drinking”?

Michael: You shouldn’t answer questions.

Teddy: Don’t answer the questions, period.

Michael: Because everything you say can and will be used against you in a court. Those initial questions, they’re entitled to ask them, but you don’t have to answer them. So, “Mr. Panos, where are you coming from? How many [drinks] have you had? What did you drink? Who were you with? Where [are you] going?” All of those questions they’re entitled to ask, but you’re not required to answer them. Then the officers, as Leslie said, you’re writing your own ticket.

She has to make a determination based on the very little information that she has. You’re over the double yellow. She can write you a ticket for the marked lanes violation, and at that point decide, “Well, do I actually have reasonable suspicion based on the mere presence of an odor of alcohol to get him out of the car?” In Massachusetts they do. In New Hampshire, they don’t.

Teddy: What if I haven’t had a drink, if I honestly haven’t had a drink? If I’m coming from work and going home. Is it okay to answer those questions then?

Michael: Again, you don’t have to. Teddy, you could be engaged in a conversation. You are a lively guy.

Teddy: I always talk to the officers.

Michael: That’s wonderful. However, in that conversation, you may say something that you think is completely innocuous and innocent, and doesn’t hurt.

Leslie: I hear every word.

Michael: It may be used against you. They may twist it or use it.

Teddy: I haven’t had a drink, I’m coming from work, I’m going home. And I say, “No, I haven’t had anything to drink.” He says, “Well, prove it for me. Come out of the car and take a field sobriety test.” Which I know, because you gave it to me right here in the morning show. I flunked without having had a drink in five days.

Michael: You can refuse to participate and feel — like he says to you, “Mr. Panos, I want you to step [away] from the vehicle.” “Why?” “Because I want you to take field sobriety test.” “No thank you. I’m not doing those.” Based on that, they can’t drag you from the car. They can at that point make a decision, “Okay, do I have probable cause now to arrest?” Then, this is very important, I heard this in court yesterday, then if they say, “Mr. Panos, I want you to step from the vehicle. You’re under arrest.” You do not have the right to resist.

Teddy: Once they say I’m under arrest, I have to go.

Leslie: Even if it turns out to be an illegal arrest, you don’t have a right to resist that arrest.

Teddy: My legal rights begin the moment they read me my Miranda rights.

Michael: No, the minute they give you a command to step from the vehicle because you’re under arrest. Miranda [sometimes] never comes into it, say like after you’ve hit the barracks. That’s the other thing that people get hung up [on]. People always come into my office and they say, “They didn’t read me my rights.” I say —

Leslie & Teddy: “They don’t have to.”

Michael: “It doesn’t matter.”

Teddy: So they can have conversations with you on the drive over to the barracks?

Michael: Miranda is what they call a prophylactic rule. Meaning they cannot use statements, admissions, things that you say to them, unless they can prove that you were Mirandized once you were in custody. All those questions roadside, the rule is that you’re not in custody.

Leslie: What happens when you’re chatting with someone, I don’t know what I have yet. The minute you start to implicate yourself that you are part of the crime and not just a witness or someone to help me, and I realize that, I snap now into investigation and then I Mirandize.

Teddy: The attorney is shaking his head.

Leslie: Then if he says, “Well, I don’t know, should I have an attorney or should I talk you?” That’s not my job to tell you what to do. I want you to talk to me. I’m going to let you say what you decide. If I come back in and you’re not sure and you answer my questions, I’ve Mirandized you.

Michael: You don’t have a right to a lawyer before you’re asked to submit to a chemical test. That came up this week as well. I had a phone call on a Sunday morning at 10:00 AM from a police officer in New Hampshire seeking me out because a client of mine was looking for a lawyer to answer a question about whether she should or should not take a breath test. You’re not entitled to legal counsel when you make that decision. They don’t have to let you speak to a lawyer. Just like Miranda, with Miranda you’re entitled to a lawyer, but you’re not entitled to a lawyer when they present you with those rights. Do you want to speak, do you not?

Teddy: So just don’t speak they’ll eventually get you to the point where you have a right to an attorney, right?

Leslie: Yes, but they say, “Call me an attorney or get me a lawyer.” I’m going to laugh all the way into the backroom because you’ll sit there ’till it freezes over. Because I’m not calling you a lawyer. I don’t know who your lawyer is. Plus, I think Attorney Bowser is making a great point. When you’re talking about people on this bubble where you may or may not be intoxicated. When you’re dealing with someone intoxicated, there is a lot of shenanigans that go on.

They don’t blow into the machine right. They play with the tool. They don’t breathe; there is a lot of shenanigans because they’re not thinking clearly. They’re clearly impaired. You’re dealing with impaired people, most of the time.

Teddy: Allegedly impaired people as the counselor would caution us.

Leslie: That is correct.

Teddy: The best way to avoid all these is don’t do anything to draw attention to yourself and don’t drink and drive as well.

Michael: Yes. No, drinking and driving is not a crime, and this is important and it’s significant. Drinking and driving is not a crime. Otherwise, there’d be no liquor licenses, there’d be no bars and restaurants and convenient stores.

Teddy: No parking lots at them definitely.

Michael: Right. It is what makes you unsafe to drive. That’s a different standard for every particular person; you just have to be a cognizant and aware of that when you make the decision to drive. I would never say, “You can’t drink and drive.” That’s not a true statement and that’s certainly not the law. But if you’re impaired to the point where you are unsafe, then you need to realize that and make a decision.

Getting in Contact with an Attorney

Teddy: There is a lot of stuff here. We could literally spin off and ask follow up questions for the next three, four hours. If you to get the point where you need legal counsel, there is only a handful of board certified OUI specialists in New England.

Michael: Two in New Hampshire, three in Mass.

Teddy: You are one of them?

Michael: One of those, yes.

Teddy: If folks need to get a hold of you tonight, tomorrow, or at any point counselor how do they do so?

Michael: My website is www.bowserlaw.com. If you got to the website, call the office. Obviously you’ll be pushed through some various prompts all the way to my cellphone. I’m available weekends and evenings and I spend a lot of my weekends and evenings meeting with folks who need my services.

Teddy: Is there prompt that says, “Because I heard him on WCAP, I need to speak to him now?” Can you set that one up?

Michael: No, but I’ve had those inquiries.

Leslie: You have, wonderful.

Michael: “My mother heard you on WCAP.” I’ve literally had those calls.

Leslie: If I was in the mix, I would hire him too.

Teddy: I may hire him anyway.

Leslie: Keep him on retainer.

Teddy: I’m not even going to drink and drive but I’m going to hire him anyway.

Michael: The greatest compliment I’ve ever been paid, I believe, was in the Warren district quarter right after a not guilty verdict. I had a state trooper, and I deal with a lot of state troopers, and the state trooper said to my client that, “Hey, I’d hire him if I was in that position.” I think that is the highest compliment from a police officer.

Leslie: It’s true and I mean that.

Teddy: Counselor as always, thank you for the time.

Michael: Sure.

Teddy: Happy St. Patrick’s Day.

Michael: Same to you enjoy.

Expert Network Interview of Attorney Michael Bowser January 29, 2016

Audio recording of the interview

 

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Transcript of the interview

STUDIO: Joining us in studio is Attorney Michael Bowser, a member of our Expert Network. Good morning, Counselor, how are you?

MR. BOWSER: Good, Ted, how are you?

STUDIO: Great. Long time no see.

MR. BOWSER: It’s been awhile. Yeah. Been very busy. I had a — as you know I had some surgery last year and it really took my calendar to pieces and pushed me into a position where I was two or three trials a week all through the fall. September, October, November, December, so it’s been a very busy stretch for several months.

STUDIO: Yeah, definitely indeed. And I have a hunch it’s going to get even busier for you. When we were last chatting, we were talking about the revelations, that the machines that were used here in Massachusetts, the blood alcohol testing units.

MR. BOWSER: I would say breath alcohol.

STUDIO: The breath alcohol. Apologize. Were not — were not properly calibrated and the belief at the time, or at least the assertion at the time by the government, by the state officials who kind of oversee this were, well it was giving false results to the testers at the time as well. They couldn’t possibly have known that the machines weren’t working. And it was only discovered afterwards through a back computer server, if I’m kind of paraphrasing this whole thing correctly, right?

MR. BOWSER: Well there’s actually, there’s a few different issues. I mean probably last April, May, June, we spoke about the fact that the machine has attached to it, the breathalyzer machine in Massachusetts is a Drager 9510. Attached to that machine is a simulator solution. In Massachusetts we use a dry gas. It’s a known alcohol concentration. The machine during a subject test is suppose to go out to that simulator and make sure that it’s reading what it knows to be a .08, as a .08, plus or minus, you know, from an .074 to an .086, whatever it may be. It’s a splotch, I know that’s exactly what it is. It was not. It was going out and it was reading that simulator outside of the accepted range and then coming back and telling the operator, keep going, finish the test, when in fact it was designed and the software was suppose to catch that and say oh no, abort the test, get the machine back to the OAT because it needs to be re-calibrated and adjusted because it’s out of tones. That’s what was going on. Then there was a decision last spring saying that all defendants in breath test cases are entitled to an evidentiary hearing to challenge the scientific validity of the breath test device to include whether the machine is calibrated correctly, whether the software or the source code works properly, whether the machine is specific for alcohol and alcohol alone, and that’s resulted in what’s called the consolidated litigation. There were several hundred cases that were stayed across the state, joined for one hearing before one judge, and that one judge, Judge Brennan out in Concord District Court is going to make a decision that will be binding. Instead of doing hundreds and hundreds and hundreds of scientific hearings, we’re going to do one. I happen to be one of the five lawyers that are part of the defense team of that consolidated litigation. Greg. Oberhauser here in Lowell is another. Joe Bernard from Springfield. Jay Milligan down from Norwell. Steve Vaillancourt out in Fitchburg. But anyway, through that litigation, we’ve essentially gotten a hold of every single electronic version of every single breath test on this device since it’s been online, which is 20,000 plus tests. And now we’ve come to find out that when OAT annually certifies these devices, meaning they take it off the bench at the barracks, they bring it back to the laboratory and they put it through an annual calibration testing sequence, and then they certify that the device for the next year, just like they would do for a radar device on a speeding —

STUDIO: Uh-huh (yes).

MR. BOWSER: — ticket, they would do the same for any medical device. Any kind of measuring instrument has to be cal — when you pump gas, the Commonwealth comes out and the weights and measures comes out and makes sure that a gallon is a gallon.

STUDIO: Yeah. The sealer of weights of measures is called the position.

MR. BOWSER: Exactly. It has to be done. Anything that is making measurements, and we’re talking about measurements that are used in criminal prosecutions, OAT, the Office of Alcohol Testing is suppose to take these machines out once a year and then calibrate them within certain tolerances, and then certify, you know, under oath, that this machine is good. Well it turns out that when you read their protocol, it’s about 20 pages, as to how do we calibrate a device, they in many instances, and when I say many instances, in hundreds and hundreds and hundreds of cases, they have done that annual certification calibration. It’s outside of their own protocols, and they’re signing off and calibrating the device and putting it back online. So every case test that follows that annual certification is suspect and quite frankly tests that preceded it be suspect.

STUDIO: So if I’m reading this clearly and to kind of try to put it into a plain English here. At the time when this, you know, error because — in the calibrating was discovered, the story line put out there was well, the machine was giving a false — it was giving a false —

MR. BOWSER: Last year — last year —

STUDIO: — like we’re okay, proceed with the testing. When it should have been giving a warning to don’t do this, it’s not in — it’s not in play.

MR. BOWSER: And last year’s response from the executive office of public safety was, when the machine was checking the simulator solution during a subject test. When you got arrested and you were submitting to a breath test at the barracks. If it was outside of tolerance against the known simulator, the executive office of public safety said that was human error, that was operator error. Nothing going on here, nothing wrong with the machine, it’s just a patch that we have to put in the software and the operator should have recognized it. And what was initially 30 cases, then 40 cases, then 60 cases. All of that came about essentially at the same time that this new decision came down saying, hey we’re entitled to challenge the scientific acceptance validity of this particular device. So all of this is kind of coming to a head. And through that litigation now, we’ve gotten a hold of every single test that they’ve ever done on this machine and we’re coming to find out that they are not following their own rules, their own protocol for certifying, calibrating devices. And they’re outside of tolerance. And what’s scary is they’re signing off and signing a certificate and an affidavit saying this machine works and we’ve tested it. Pursuant to our protocols it is calibrated, it’s not.

STUDIO: So we have now gone from human error or just an honest mistake to what appears to be intentionally putting something, a testing device out there on the streets that they know is not going to do the job it’s suppose to do by the legal standards, and by the standards of the manufacturer of the machine has put out there.

MR. BOWSER: Actually their own standards. I mean these are the people, OAT, Office of Alcohol Testing is a government agency, it’s part of the executive office of public safety under the wing of the state police. They are the state agency that is mandated to monitor, prepare, maintain, calibrate and certify breath testing devices for use in criminal prosecutions. And pursuant to their own rules, the machines are not properly calibrated, but they’re signing off on them, putting them back online, putting them back on the street to test, to prosecute, to convict people. And whether it’s malfeasance or intentional acts, but it’s wrong.

STUDIO: I can’t help but assume it’s intentional. But it’s interesting because when this first came out, there were questions about, well does this mean that they will no longer use this machine to test. And I was kind of flabbergasted that the response of law enforcement was, oh no, we’re going to keep using it, there’s nothing wrong here. Is that because they knew all along that yeah, it was — now we’ll — because we really know what the problem is?

MR. BOWSER: No, I think —

STUDIO: Or were the individual officers who were pulling you over on the street. Were they in on this?

MR. BOWSER: Absolutely not.

STUDIO: No.

THE COURT: I think any front line law enforcement trooper, local cop, local prosecutor, local judge, these folks have no idea. We’re all relying upon the state agency, Office of Alcohol Testing, to do their job. And their job is to calibrate and to certify the accuracy and the reliability of these devices. And now we’ve come to find out now that we’ve looked at every single test for the last several years, and every single annual certification, there are annual certifications out there that are outside of their protocols, that don’t match their own rules, and they’ve certified them anyway. And the local prosecutor, local cop, local judge, local defense lawyer didn’t know this. Now we do.

STUDIO: You know it’s funny, people always say I’m a conspiracy theorist and I always question, I don’t trust government. You know, here’s why. And you know what’s striking is, if they’re going to intentionally put something out there that’s going to produce false evidence for a drunk driving case, what do you think they’re going to do for a murder conviction or a more serious crime. They won’t hesitate to do the same. I mean it really calls into question the validity of all state testing. We had that scandal with, you know, the crime lab, Annie Dookhan. You start to wonder, now how many people might actually be sitting in a prison that are innocent.

MR. BOWSER: Yeah. Well as far as — I’ve always been suspect and suspicious of breath testing devices in general. And now I can only — I mean all of my breath test cases are essentially stayed pending a decision coming out of this consolidated litigation. And anyone who has a breath test should absolutely, and when representing someone with a breath test, should be demanding that that case be stayed as well until this is resolved. I mean we have a gentleman, Thomas Workman. He’s an engineer by training. A software engineer. He’s a lawyer as well. And he is the gentleman that is compiling all of the information that we’re deriving from all — it’s a massive amount of information. Thankfully he’s capable of doing it. And just in his, you know, analysis that he’s done thus far in the last few weeks, he’s found that a huge percentage of cases are affected because they were done on machines that did not pass, should not have passed the annual certification.

STUDIO: Does this have the making of a giant class action suit?

MR. BOWSER: I don’t think it’s class action in the sense that you’re going to sue anyone, but it is a class action in the sense that anyone with a breath test, that case should not go forward.

STUDIO: Will this cost the taxpayers money? Will there be a monetary settlement here if we continue down this path of finding out there was intentional misrepresentation?

MR. BOWSER: I don’t think so.

STUDIO: No?

MR. BOWSER: I think it’s more, the remedy is going to be more in the form of — what I’m afraid of — not afraid of, but what I’m anxious about, is there are probably folks that went to trial and were convicted, or went to court and pled out.

STUDIO: Or pled guilty, yeah.

MR. BOWSER: Pled out because they were looking down the barrel of a .10 or a .09 —

STUDIO: Sure.

MR. BOWSER: — or a .11 breath test, having no idea that hey, oh by the way, that machine that you blew into at the barracks or at the local P.D., that machine wasn’t really calibrated and it’s really not accurate. And that certificate that is attached to it from OAT under oath, stating that it’s calibrated and certified, it’s not true.

STUDIO: I know at the time you were trying to go back a couple of years in getting some of these results. How far back do you want to go now?

MR. BOWSER: Well now —

STUDIO: Since the inception of this machine?

MR. BOWSER: The data that we have now is, yes, since the inception of the 9510, which is I think going back to ‘09, 2010, is when it started to come online. It was certainly online statewide by 2011.

STUDIO: If I’m somebody who in the recent past has —

MR. BOWSER: Has done it. He’s asked each of the five lawyers that are representing the multiple defendants to give him a list of all of their cases in the way that he — he needs certain information to confirm whether your test was done on a machine that has an inaccurate or failed calibration certificate. So you could certainly, yeah, work backwards and find that information out. But that’s the concern, is that there are people that have gone to trial, pled out, made decisions on their cases on devices that were not necessarily calibrated.

STUDIO: How can folks get in touch with you if they want — for this specific reason.

MR. BOWSER: Oh, the website is bowserlaw.com. I’ll hopefully have this, I guess broadcast up on my website. But the consolidated litigation is ongoing, it’s going to — it will continue to go on I think for several months before we actually have a decision. And that decision will affect, you know, thousands and thousands of breath test cases across the Commonwealth.

STUDIO: You strongly recommend somebody get in touch with an attorney though, if in the recent past they have a conviction?

MR. BOWSER: Yes.

STUDIO: Or especially if they pled out.

MR. BOWSER: Every case there are facts. I mean you could have a breath test in a case where there is overwhelming evidence in addition to the breath test.

STUDIO: Yeah, if you crashed your car and you were spilling vodka out of your —

MR. BOWSER: But if there was, you know, if it’s a close case and it involved a breath test and a decision was based on that evidence, you would definitely want to go back and take a second look.

STUDIO: Alright, bowserlaw.com. It is 8:02 here on 980 WCAP, chatting with Attorney Michael Bowser, member of our Expert Network. Before I let you go, wanted to talk about first of all Super Bowl coming up. That’s a big drinking party, house parties, people are out in bars playing those —

MR. BOWSER: Yes.

STUDIO: — for those entertainment purposes only Super Bowl Squares. Your advice to them. As somebody who makes your, you know, makes a good living or representing folks who do stupid things after they’ve been out partying?

MR. BOWSER: It’s known, I mean it’s almost a national holiday, isn’t it?

STUDIO: Yeah. And the police know that too.

MR. BOWSER: Yes they do. And I’m sure that they will be out in force and they will be looking for those who are unsafe to drive. Take it easy, be safe, and you know, find someone that can get you home safely if you’re going to imbibe and enjoy yourself, but yeah, be aware of the fact that it’s a recognized drinking day. Like night before Thanksgiving, like New Year’s Eve, like Christmas. I mean I see a spike in the number of intakes and calls that I get around the holidays. And it’s the fact that people are out and about and celebrating and attending parties and events. But it’s also because enforcement is targeted around those certain days and they certainly, the police, the law enforcement locally take it upon themselves to ramp up their efforts around those big celebratory days.

STUDIO: Lastly, as someone who is worked in the courts around the Commonwealth, but specifically here in the City of Lowell.

MR. BOWSER: Yes.

STUDIO: I assume you’re looking forward to the spring where they promise after what seems like an interminable wait, there will be — maybe not a giant digging machine, but at least a shovel in the ground of the new courthouse in the milton Canal District. Are you — what will that mean to those of you who are in this profession?

MR. BOWSER: Well here locally in Lowell, it means everything. I actually had a conversation with Eileen Donahue and I don’t know too many politicians. I know Eileen. I had the pleasure of trying a case with her in federal court years ago, and I got to know her then. If you don’t know her, she’s a wonderful trial lawyer. But I —

STUDIO: With her or against her?

MR. BOWSER: Co-counsel.

STUDIO: Co-counsel, okay.

MR. BOWSER: She was — yeah, and Steve Rappaport, the three of us together. But anyway, I had an opportunity to speak to her about some of this breath test stuff, and we were talking about it, and she assured me that yes, ground will be broken and it’s going to be a green building and construction will start in the next fiscal year, as of July. And we need it here in Lowell desperately. More so than — I travel all over the Commonwealth and I’ve been to the new facilities in Worcester, in Plymouth, in Taunton. It seems as if everybody has a new facility except Lowell and we need it desperately.

STUDIO: Will that mean more trial work for you here in Lowell? Will cases be less likely to go out to other courts because of the condition of the court or?

MR. BOWSER: Yeah. I’m hoping that just the administration of justice in general becomes an easier task for all involved. The defense, the prosecutors, the administrators at the courthouse, the judges. Because the facilities in and of themselves in Lowell, they just don’t lend themselves to an easy day. Whether it’s getting up and down the stairs, windows open in the middle of December. Freezing cold in one room, oppressive heat in the next. Ceiling tiles falling in the hallways, on top of jurors, and leaky roofs. It’s a mess. We need a safe, clean, modern facility for everybody in Lowell that participates in the court system.

STUDIO: And the information, just for people who say, well it’s a courtroom, it’s suppose to be drab and dreary. But when that’s your work environment everyday, you know, forget the lawyers and the defendants and the — you know, think about the clerical people that have to go in there each and every day. Your work environment, the quality of that building you’re in is paramount to a productive work environment, let alone a happy one.

MR. BOWSER: They, you know, in Lowell District, Lowell Superior, the folks that work up there, they deserve it more than anybody. They really do.

STUDIO: Attorney Michael Bowser. Again, if folks want to get in touch with you, and I strongly recommend they do if they’ve had a conviction in the last couple of years for OUI.

MR. BOWSER: Oh, www.bowserlaw.com.

STUDIO: Alright, board certified, one of a handful of board certified OUI specialist in the Commonwealth and all of New England for that matter. Thank you, Counselor.

MR. BOWSER: Thank you.

Expert Network Interview of Attorney Michael Bowser January 30, 2014

STUDIO: Joining us in studio right now, a member of our Expert Network, local attorney Michael Bowser. You have offices in Chelmsford, you have offices in Nashua. You just heard the Governor’s call. Could you please hire somebody?

MR. BOWSER: I did.

STUDIO: You did hire somebody?

MR. BOWSER: Yes I did.

STUDIO: See, because you have increased business.

MR. BOWSER: I do.

STUDIO: It’s from your appearances here on the radio.

MR. BOWSER: No, I just put to work a high school student who’s been very helpful. We moved offices. We relocated the Chelmsford office after about 12 years on Chelmsford Street over at the Talbot Insurance Building. We purchased a condominium at Courthouse Lane, on Parkhurst Road behind Hannaford’s and Drum Hill.

STUDIO: Oh gee, so I can walk to your offices now when I need your legal help.

MR. BOWSER: Yeah. It was nice. We built it out so it’s a brand new, clean space. We had Greg Noonan, Advanced Painter or Painting by Advance, you know Greg I’m sure.

STUDIO: Of course I know Greg.

MR. BOWSER: He did a wonderful job, it really came out beautiful. I had a guy Tim Ploof that I went to high school with that did a lot of carpet work. If you ever need tile and carpets, he did a beautiful job as well. So very busy with that move.

STUDIO: Alright. So now you’ve got luxurious new offices, ready to meet the public. That’s a good thing too ‘cause you’ve had a very busy month on the court docket. And unlike the Patriots, you’ve scored a lot of victories I understand.

MR. BOWSER: Well this month has been — in terms of the volume is you know somewhat typical. I just was doing the numbers on the way over here. I had 11 trials scheduled in the month of January. Six not-guilty or dismissals. Two trials were not reached. One was actually snowed out in Hingham with the snow storm and the state of emergency. One was a plea. One was a guilty finding. I did have one.

STUDIO: You did lose one, huh?

MR. BOWSER: I do. And I lose cases, you know, people are surprised to learn, I lose cases all the time. Because I try everything.

STUDIO: What’s a typical batting average for an attorney? What do they — they go — is 50/50 considered a success?

MR. BOWSER: 50 percent, if you’re winning 50 percent of your trials, that’s really high.

STUDIO: You’re a miracle worker, right?

MR. BOWSER: Well that’s a good — that’s a good percentage. Especially if you’re trying a lot of cases. So if you ever meet the lawyer that says I’ve never lost a case, run for the hills because that lawyer has probably never tried too many cases.

STUDIO: Well I mean first of all, you’re starting at a disadvantage. You’re starting with two strikes against you already in the at bat because most people who hire a lawyer do so because they need one. It means they’ve usually done something wrong.

MR. BOWSER: Well.

STUDIO: Usually, not always.

MR. BOWSER: There’s — the level of proof required to make an arrest, as we’ve talked about before, is probable cause. And at roadside, most police officers are going to have at hand at least probable cause to make the arrest. But there’s a much different standard when you’re asking for a guilty finding returned by a judge or a jury. I’m going to make that argument today. I have my 11th trial today. So it’s a different standard. But I think anyone who is charged with an offense as serious as operating under the influence or DWI should be represented by a lawyer.

STUDIO: Very smart advice indeed. Now last time you were here, we talked an awful lot about the operating under the influence laws and how it pertained to drug use.

MR. BOWSER: Uh-huh.

STUDIO: Prescribed medications, legally prescribed and taking medications or illegal drugs. You actually had this month an interesting case, an OUI case on marijuana.

MR. BOWSER: I did.

STUDIO: Give us a little bit of the back — whatever you can divulge legally here.

MR. BOWSER: Sure. No, we’ve talked it he past, we’ve discussed the difference between OUI alcohol, OUI prescribed medications, OUI illicit drugs. And I had a trial this month that was an OUI marijuana charge. And what was interesting about that is there was clearly, there was a motor vehicle stop, police received a phone call, what I refer to as a citizen cellphone, someone who called in anonymously on a cellphone and dropped the name of a plate, a description of a vehicle and said he looks like he’s having some difficulty. The police followed for a short distance. They saw some marked lanes violations, some difficulty going through an intersection. They stopped him. And the only evidence of consumption was that he had recently smoked marijuana and he in fact had on his person a small amount of marijuana, which was not a crime, it was less than the criminal threshold of one ounce. They got him out of the car, they conducted four field sobriety tests and he was arrested and charged with OUI. In this particular case, there were a couple of priors way back, way way back. So this would have been in fact his third.

STUDIO: Drug priors or alcohol priors?

MR. BOWSER: Alcohol priors.

STUDIO: Okay.

MR. BOWSER: Two priors were both involving alcohol, but the consequence of this one would have been an eight year loss of license through the Registry and potential obviously jail if convicted.

So what was interesting is the arresting officer, a regular patrolman from a local police department, conducted the field sobriety tests, formed an opinion that he was under the influence of marijuana; however, one, in Massachusetts recently under Commonwealth v. Canty, an officer cannot say that he believed a person’s ability to operate safely was impaired by alcohol. They can state that they thought that they were impaired or intoxicated, but that’s the only substance that a layperson or a police officer can testify to as an opinion of impairment. Because alcohol is so common to everybody, that a layperson can have an opinion that a person’s impaired by alcohol.

That is not the case for marijuana, opium, cocaine, PCP, whatever the other substances may be. You need to be a toxicologist or a doctor or possibly a drug recognition expert which is a certain type of police officer that’s been through very specialized training regarding drugs. And he was none of those.

So going into the trial, we had asked the judge to restrict his opinion and his ability to state an opinion that he was impaired and by what. And essentially the Commonwealth’s hands were somewhat tied with what they could present for evidence in terms of impairment. It was a not guilty verdict on those facts. Because they didn’t have the expert, they didn’t have the toxicologist, they did not have a medical doctor.

STUDIO: I think this is going to be a fascinating aspect of law in your particular field of expertise as we go forward, as we eventually open up those medicinal marijuana dispensaries. As people eventually start, you know, smoking it medicinally in their car because hey, it’s a drive somewhere and I need to take my medicine, you know. Nobody would think twice if you popped a, you know, an antibiotic while you’re driving or whatnot. But also because the laws are different state by state. While medicinal marijuana is legal in Massachusetts, you know, can you use medicinal marijuana in New Hampshire if you’re a Massachusetts resident. You know, people go shopping at Christmastime or other times to the malls. People like to go to those casinos in Connecticut because, you know, it’s going to take us another 20 years to –

MR. BOWSER: Right.

STUDIO: — to license ours here in Massachusetts. How do those law translate if you’re in another state?

MR. BOWSER: Well, I see it all the time. Unfortunately, you know, folks who believe that — well folks that have less than one ounce of marijuana on their person, it’s contraband, it’s a civil infraction, it’s not a crime. You drive up north over the border, you know, ten miles from where we’re sitting right now, it’s a crime. Possession of marijuana is still a crime in the State of New Hampshire.

STUDIO: Whether you have a legitimate medicinal license in Massachusetts? You can’t transport it across the border?

MR. BOWSER: Possession of a controlled substance including marijuana is a crime in New Hampshire.

STUDIO: No kidding.

MR. BOWSER: Yeah.

STUDIO: So if you’re — let’s say you have a lake house up at Lake Winnipesaukee and you decide to go spend a couple of weeks up there around the 4th of July. You cannot bring your medicinal marijuana with you?

MR. BOWSER: I have that case pending right now in Ossipee.

STUDIO: You’d think I almost knew what I was talking about.

MR. BOWSER: Yeah.

STUDIO: Oh really?

MR. BOWSER: Yes, I have, yeah I have —

STUDIO: What’s the penalty?

MR. BOWSER: Well they’ll usually charge possession as a first offense. If it’s a small amount, will typically be charged as either a Class A or a Class B misdemeanor. And the A carries up to a year in jail, a B is a fine, no jail. And most people do not get sentenced or receive a jail sentence.

STUDIO: Uh-huh (yes).

MR. BOWSER: But it’s a criminal offense and it’s a criminal drug offense and the collateral consequence of a drug conviction, especially if you’re a college student, you literally jeopardize and may lose your ability to received financial aid for a drug conviction, including marijuana. So the collateral consequences of a conviction are often worse than what the judge does to you in the courtroom.

STUDIO: And if you’re thinking of becoming a police officer or a teacher, any profession where you have to undergo a CORI check, this pops up?

MR. BOWSER: It could very well, yes. CORI — a misnomer, a CORI is Criminal Offender Record Information. That is a Massachusetts database.

STUDIO: Okay.

MR. BOWSER: When people are –

STUDIO: Could it affect your ability to keep that medicinal marijuana license in Massachusetts or other states if — do they warn you when you — you know, when a doctor prescribes it and you’re told, you know, okay, you can buy it legally here in Massachusetts. Do they warn you, by the way, you better keep it in Massachusetts and you better only take this prescription in Massachusetts or you can get in trouble?

MR. BOWSER: I don’t know. Actually that’s a good question. I don’t know the answer to that. I don’t know whether a criminal conviction for possession in another jurisdiction would jeopardize your ability to possess medicinal marijuana. I don’t know the answer. I’ll find out.

STUDIO: Did your client in New Hampshire though, that you’re working on now. Did he or she know that they couldn’t take it out of Massachusetts even though they had a legal prescription?

MR. BOWSER: He didn’t have a legal prescription. He wasn’t a medicinal user.

STUDIO: Oh okay.

MR. BOWSER: He was someone that was well within the range of what is considered a civil infraction, not a criminal. Like much less than an ounce, a very small amount of marijuana, which would not have been a crime in Massachusetts. He wouldn’t have been arrested in Massachusetts. There wouldn’t have been probable cause to search his car in Massachusetts. But in New Hampshire he was in fact charged with a crime.

STUDIO: Which makes me wonder why has the federal government so far stayed out of this issue. It appears that right now the Obama Administration is okay with letting every state have its own –

MR. BOWSER: Right.

STUDIO: — laws on marijuana and whatnot. They seem to not want to allow states to have their own laws on other things, but in terms of legalized marijuana, they’re okay with that. But this has, you know, interstate complications.

MR. BOWSER: Yeah, they’re okay, but there could very well be federal implications. And something I read in the newspaper, it was either yesterday or the day before, was that many banks are absolutely shying away from funding or financing some of these medical marijuana dispensaries that are now in the pipeline in Massachusetts. They can’t get financing from banks here in Massachusetts because the banks are fearful that the feds at some time in the future could step in and say no, regardless of what you think your state’s rights are, we’re going to declare this illegal. And they’ve had those battles somewhat in California as well.

STUDIO: Plus they’re non-profit, so you know, who would want to finance a business that doesn’t make a profit, right? Sarcasm.

Attorney Mike Bowser, a member of our Expert Network. Offices in New Hampshire, Nashua, and a brand new office in Chelmsford, Mass. How do folks get in touch with you if they are ever in need of your services? And despite the fact we want you to make lots of money, we hope that people don’t need your services.

MR. BOWSER: We are at 6 Manchester Street in Nashua, New Hampshire. We’ve been up there for about 15 years. And the new office is 2 Courthouse Lane, Unit Number 4 in Chelmsford. The website is www.bowserlaw.com, and you can follow me on Twitter @BowserLaw.

STUDIO: And we always learn something new each and every week when we chat with you. Thank you so much, Counselor.

MR. BOWSER: Thanks, Ted.

STUDIO: Attorney Mike Bowser joining us this morning here on 980 WCAP.

Odor of Marijuna Is Not Probable Cause to Search or Arrest in Mass

STUDIO: We are very excited to be joined by one of the members of our Expert Network who comes in bearing gifts — I like when it’s — it’s a red box, it says the Candy House on it, and then I go to pick it up, Mrs. Nelson’s Candy House. I pick it up and it’s a heavy box too. That tells me it’s doubly decadent. But local Attorney Michael Bowser is joining us in Studio this morning. He is a member of our Expert Network, and he’s here in the luxurious and spacious studios of 98 WCAP. Good morning, Counselor, how are you?

MR. BOWSER: Good morning, Ted. How are you doing?

STUDIO: Doing very well. I’m doing even better now that I know — my sugar rush — I haven’t even opened it, but I know my sugar craving and my sugar rush will be attained by the time I finish this spot.

UNIDENTIFIED: You know what the best part is? I’m never here and I just got one. What the hell.

STUDIO: You got one too?

UNIDENTIFIED: Yeah.

STUDIO: Oh, Austin’s really going to be bummed that he didn’t come in today.

UNIDENTIFIED: Oh we don’t have to tell him.

STUDIO: So how are you today, Counselor?

MR. BOWSER: I’m good. I heard the conversation about lawyers and psychopaths yesterday.

STUDIO: You –

MR. BOWSER: So I wanted to make sure that I put that to rest and let you know that not all lawyers are in fact psychopaths.

STUDIO: That was actually the one I disagreed with the most. That — I could see the TV/Radio host. I could even see sales people. But you know, the ego driven professions would have a lot more crazy people. You know, attorneys have egos as well, but you guys, I find you guys actually rather sane compared to us in radio.

MR. BOWSER: Yeah, I was very surprised with the list that you had presented. I would have thought there would have been other professions, not sales people, journalists, radio personalities, TV personalities, but –

STUDIO: Well to me that was kind of a stupid list. We melded the conversation off to just crazy people in general. Psychopaths is a very specific term and that’s also one that you — I think you have to be like clinically diagnosed, and these diagnoses stay private between the person who diagnoses you and the patient?

UNIDENTIFIED: That’s what you’d think.

STUDIO: So how — really, how accurate of a study could it have been?

UNIDENTIFIED: Probably not at all.

STUDIO: I would like to welcome in our next guest this morning. He is a member of our Expert Network. He is a board certified DUI attorney and he practices many other types of law as well with offices in Chelmsford and Lowell. Attorney Michael Bowser joining us in studios. Good morning, Sir, how are you?

MR. BOWSER: Good morning, Ted, how are you doing?

STUDIO: I’m doing well. Unfortunately despite your many appearances here on the morning show and the fact that you’ve helped a lot of people because of your appearances, you have yet to receive a vote for person of the year. But we still have an hour and a half at least of balloting to get through.

MR. BOWSER: No, I am fine with that. There are plenty of deserving people other than myself.

STUDIO: There certainly are. How’s — how’s your holiday season going so far? Hectic or?

MR. BOWSER: It’s kind of a funny week, isn’t it? With the holidays right in the middle, twice, and my kids’ school vacation is a little bit odd. It’s just, you know, going back to school on a Thursday midweek is a little bit strange so, they’re in bed. I mean they’ll sleep until 11 if they don’t have a hockey game, so. I left the house, it was quite quiet this morning.

STUDIO: So they’ll have to go back Thursday?

MR. BOWSER: They’re scheduled in Chelmsford to go back to school Thursday.

STUDIO: But.

MR. BOWSER: Apparently we’re going to have a very big snow event, so they’re hoping for maybe a snow day on top of their vacation week.

STUDIO: Keep those fingers crossed, kids. What do you do for New Year’s Eve? Do you — do you traditionally go out or do you stay in on what I like to call amateur night?

MR. BOWSER: Yeah. A little bit of both. We don’t venture out too often. We might go play cards at my brother’s house. That was what we did last year. We really enjoyed that.

STUDIO: That’s a great way to spend New Year’s Eve, honestly. You’re in, you’re safe. Of course I’m saying this, there’s somebody in the restaurant industry who wants people to go out and have fun, but that’s what I would do. I would stay in, I’d grab some food and just spend it with some close friends and family and play cards.

MR. BOWSER: Yeah, it’s always been a good night to stay in and hang around with friends and family.

STUDIO: Let’s talk about a couple of things. First of all, the new year is bringing a lot of changes in laws. You know, we’re hearing on the news, new — a lot of new marijuana laws, a lot of new other laws, including in Wisconsin where cities and towns can now give permits for peddle bars. These are bicycle bars that will take you back and forth to taverns, but also have a bar attached to the lead bicycle. And you can actually drink at it. There’s also a change in New Hampshire’s laws that might affect folks. Is there a new DWI law?

MR. BOWSER: There was one — there was one major change in the New Hampshire DWI law last January. And the change in New Hampshire was the treatment plan in the way that they go about imposing their counseling and first offender program.

Historically in New Hampshire, if you were convicted or you pled out to a DWI first offense, they would send you to a standard, what they call the impaired driver education program.It’s based on a six week, 16 hour model. And at the end of that program, they would determine in an exit interview whether you were a people that needed further alcohol counseling, in need of more services. And then they would put in place an after care plan if n

Now they’ve flipped it. As of this year, everybody must go through a screening for alcohol abuse within 14 years of their sentencing. After that screening, they’re going to be determined to do the impaired driver education program or they go on with 30 days for what’s called a LADAC evaluation. And LADAC, that acronym stands for Licensed Alcohol Drug Addiction Counselor evaluation. And then they put a counseling plan in place before you even enter the first offender

So that changed the landscape dramatically in New Hampshire. The statute that was voted upon by the state senate in New Hampshire at the end of this year was the interlock device being offered for first offenders. But my understanding is, and the law has now passed but they’re going to make the interlock device, which is the ignition interlock device, available to first offenders, so that a first offender can get their license back immediately upon a plea. Which is similar to the Massachusetts program. New Hampshire has some of the longest suspensions in the

If you suffer a first offense in New Hampshire, you’re going to lose your license anywhere from 30 days –strike that — 90 days to nine months. They have very, very long suspension periods with no hardships. And I think the senate, they’re — what I heard was they did not want to bankrupt families and have bread winners going without jobs because of a first offense DWI, which is — the effect of a DWI in New Hampshire, there’s very little public transportation. So you can lose your livelihood if you lose your

STUDIO: Couple of follow up questions on that. I was curious. First of all, if you have your license pulled let’s say in New Hampshire. Then it becomes illegal for you to drive in any state, correct? You can’t get away with driving in Massachusetts? Does Massachusetts have jurisdiction?

MR. BOWSER: The states, depending on whether they’re members of a compact, will honor, will or will not honor the notice of a suspension from another state. So the classic example, if someone from Lowell is arrested in Nashua and they get charged with a DWI. If they refuse the breath test or they take the breath test in Nashua, their privilege to operate in the State of New Hampshire is going to be revoked for a period of time.

The privilege to operate in New Hampshire is not their Massachusetts driver’s license. They leave the State of New Hampshire after being bailed and released by the bail commissioner. They come home. They still have a valid Massachusetts license. They’re going to keep their valid Massachusetts license until the Massachusetts Registry catches up with them. And the way that they do that is they issue a notice through the mail called an NDR Notice. National Driver Registry. National Driver Registry is just a data base by which all of the states share information about drivers from other states. Mass cross references that data base peri

They pick up your name, you’re red flagged out of New Hampshire, and they call it the Registry love letter, you get the love letter from the Registry saying, hey we found out about New Hampshire last month, so your Mass license is going to be revoked effective, and then they always give you a date, an effective date, 30 days down the road. That is when your license is revoked. That is when you can no longer drive

STUDIO: In any state?

MR. BOWSER: In any state, because you don’t have a valid license. But until you get that notice, you cannot drive in the State of New Hampshire. Your privileges are revoked there.

STUDIO: Okay.

MR. BOWSER: But I tell people, you can continue to drive in the other 49 states. It’s pretty difficult to get to Maine without going through New Hampshire. But, until the Mass Registry catches up with you, you can drive. The only entities in my experience, and my advise is, the only entity that can take a Massachusetts driver’s license is a Massachusetts court or the Massachusetts Registry of Motor Vehicles.

STUDIO: Uh-huh. how long does it take for that notice to come out from our friends in New Hampshire or another state for that matter?

MR. BOWSER: The suspension of your privileges in New Hampshire goes into effect 30 days after your arrest. There’s always a 30 day window. You have a temporary permit to drive in the State of New Hampshire. So if you get arrested January 1st, you’re going to be revoked February 1st. The notice from Massachusetts is probably going to show up down here sometime in March or April.

STUDIO: Are there any states that are not part of that registry, let’s say — I’m going to pull Wyoming, because I’m going to the far reaches of the continent. But is there a way, if I get caught in Wyoming while I’m vacationing or whatever? Is there a way — it is a possibility I can get away with it?

MR. BOWSER: Well there are fewer and fewer states that will not pick up on an NDR notice. For instance, when you go to renew a license in New Hampshire or you go to renew your license in Massachusetts, they do an NDR check. Meaning they go into the national data base and they look to see if you’ve had any outstanding matters in other states. Florida, Montana, Wyoming, whatever it may be. So I think there are fewer and fewer states that don’t pick up on these suspensions. The question is, what do they do in response to it. Historically the State of New Hampshire, if you reverse the scenario we just talked about, a New Hampshire resident gets arrested in Massachusetts. New Hampshire does not reciprocate on an administrative suspension from another state like Massachusetts. New Hampshire does not recognize a continuance without a finding, which is the most popular plea disposition on a Mass OUI. If you’re a New Hampshire resident and you take a CWOF, a continuance without a finding on an OUI in Massachusetts, you’ll never lose your New Hampshire driver’s license. So the back and forth between the two states is drastically different.

STUDIO: So can you continue to drive in Massachusetts however?

MR. BOWSER: No.

STUDIO: No. But you –

MR. BOWSER: And then the reverse is true. Your privilege to drive in the Commonwealth is revoked.

STUDIO: Okay.

MR. BOWSER: But there will not be a reciprocal suspension from the State of New Hampshire based on a CWOF because that’s not a, quote/unquote, conviction.

STUDIO: Okay. But you have a valid driver’s license?

MR. BOWSER: You have a valid New Hampshire license.

STUDIO: Alright. So you — let’s say this has happened and you know, New Hampshire didn’t revoke your license because you got pulled in Massachusetts. And let’s say a police officer pulls you over in Massachusetts for speeding or for running a red light. Not your, you’re not under the influence. Is there anyway for that officer to know that you’re driving with a suspended license?

MR. BOWSER: That person is going to go to jail for 60 days. So if you’re driving –

STUDIO: So they are able to track it, okay.

MR. BOWSER: Yeah, oh absolutely. You’re going to be listed in the registry data base here in Massachusetts as revoked for drunk driving. Now when the period of suspension is over, and you’ve completed your program and paid your reinstatement fee, you’ll be fine. But if you were to drive during a period of suspension for drunk driving in either Mass or New Hampshire, both of those are jailable offenses, mandatory minimum jail sentences in both states.

STUDIO: My last question about this. You talked about some of the first time offender programs. How well do those work generally? I mean we hear the horror stories. The person who’s been pulled over multiple times, ten times, in some cases, there was a case in California, an 18 time offender. But you know, these are the extremes obviously and some people never, you know, change. But how well do these first time programs work? If somebody’s gone through this process and had their license pulled and had to go through the classes and the whole legal process, do they generally learn their lesson?

MR. BOWSER: I think the recidivism rate is pretty low. Now there certainly is recidivism, repeat offenders, but the vast majority, and I mean the vast majority probably north of 80 percent, 90 percent of first offenders don’t become second offenders. So the program as constituted works.

STUDIO: So 90 percent?

MR. BOWSER: No. Don’t quote me. I’m not — I’m just saying I think the recidivism — the repeat offender rate here in Massachusetts and New Hampshire is probably, you know, I would say it’s less than 20 percent. It’s got to be. Because the number of repeat offenders is just not that great. There certainly are repeat offenders from both states, but first offenders tend to remain first offenders.

STUDIO: So when we hear these horror stories of a multi, multi time offender. It’s really the legal system that kind of has dropped the ball there?

MR. BOWSER: That was — I mean we were talking about Melanie’s Law. Everyone says well what is Melanie’s Law. Melanie’s Law is the drunk driving statute in Massachusetts. And it was so named for a young woman, girl actually that was killed by a repeat offender. A guy that had multiple, multiple offenses over a couple of decades. And that law was designed to address just that situation. So that other states like New Hampshire for instance, we’re always talking about New Hampshire, has a ten year look back.

If you have an offense more than ten years ago and you repeat offend, you’re going to be a first offender. If you repeat offend in Massachusetts, they’re going to go back for your entire lifetime and pick up each and very prior OUI including continuances without a finding, and count those. So I for instance had one in Lawrence just recently. Second offender. And his first one was in 1981. His second offense that we, ultimately we won, but it came at Christmas time of 2012. So they went back to 1981 and –

STUDIO: 31 years later.

MR. BOWSER: And counted a continuance without a finding out of the Lowell District Court when he was a very young man.

STUDIO: Uh-huh.

MR. BOWSER: And he became a second offender. And the implication of that is, he was looking at, you know, if convicted of a second offense, mandatory jail, interlock ignition device for two years, a three year loss of license on a breath test refusal, which we were able to vacate that chem test refusal suspension because we won the OUI charge. But that’s the effect. So that law was designed to address just that situation. The repeat offender even from way, way back.

STUDIO: Is there a point under the drunk driving laws where there’s a, you know, strikes and you’re out for good point, or the NSA death penalty in college football. But is there — is it all case by case subjective according to what the judge –

MR. BOWSER: Well here in the Commonwealth and in New Hampshire, we don’t have a three strikes you’re out. I don’t know. I know that the penalties for some repeat offenders in other jurisdictions are incredibly harsh. Long state prison sentences in states like Texas. I know colleagues that I’ve spoken to have had multiple offenders in Texas that are looking at long state prison terms for repeat offenses for DWI.

STUDIO: And as we always say during your segments, your Expert Network appearances with us. The simplest way is, look, don’t drink ad drive. If you even think that there’s any question in your mind that you might be impaired, you know, find another way to get home. Turn the keys over, call a friend, you know, don’t even take that chance. Because even if you do manage to win through the legal proceedings, it’s such a pain, your life will change for that entire period of time.

MR. BOWSER: I tell people all the time, a first offense is incredibly inconvenient. A second offense is life altering. And to give you an idea as to what is drunk driving, in the State of New Hampshire, the standard of proof, what they have to prove in order to convict you is if you were impaired by alcohol to any degree. Any degree In Massachusetts they need to prove that your ability to operate a motor vehicle safely was impaired, reduced or diminished by the consumption of alcohol. Two different standards, but when you listen to it and you think about the legal term impaired to any degree, is a pretty low standard. And that’s the threshold for the offense, so.

STUDIO: And especially tonight and tomorrow. Look, they’ve publicized it. There’s no excuse. Drive sober or get pulled over. The police are out, the state police, local police, they’re looking for you. It is a point of emphasis in law enforcement like it never has been before in history.

MR. BOWSER: Right. And they’re emphasizing the use of public transportation. I just heard that on another station on the way in. The use of the T tonight in Boston for First Night. And yeah, they do, they definitely, they emphasize the use of the public transportation and they will be out there in force pursuant to grants, possibly running roadblocks. You’ll see an enhanced presence tonight.

STUDIO: Alright. So don’t take any chances. Don’t drink and drive. Unfortunately Counselor Bowser, you know that there are going to be some folks who aren’t going to listen and who are going to be in need of the services, and that is where you come in. Offices in Chelmsford and in Nashua. Are you –

MR. BOWSER: Yes.

STUDIO: Are you available tomorrow morning if somebody needs to call you.

MR. BOWSER: Yes.

STUDIO: In case of an emergency. How can we get a hold of you?

MR. BOWSER: Well the beauty of the internet is the minute that someone lands on my website, I get a text, I get an email, and they can always reach me on my cellphone as well. So it’s Bowserlaw.com. You can follow me on Twitter at @bowserlaw and please have a safe and happy new year.

STUDIO: Don’t take this personally. I hope your phone doesn’t ring tomorrow. I hope you get to relax. What’s the –what’s the busiest time for you by the way? Is it this time, Christmas, New Year’s? Is it St. Patrick’s Day?

MR. BOWSER: It’s — I don’t know why historically, but the slowest two months of the year, and this repeats every year and I don’t know why, is January and May. And I don’t know why. And it seems to get slow in those two months, and then it picks up dramatically afterwards. Maybe it’s the summer, maybe it’s post-holiday. I have no idea. But those, for whatever reason, tend to be the slowest months. I’ve certainly been busy, I haven’t seen a slow down of late, so things are going well.

STUDIO: Alright. Counselor Bowser, thank you for your time.

MR. BOWSER: Thank you.

STUDIO: Attorney Mike Bowser, member of our Expert Network joining us this morning here on 980 WCAP. (End).

That was my –

UNIDENTIFIED: God only knows who made that list, you know what I mean?

STUDIO: Well I didn’t disagree with all of the things on the list, but –

UNIDENTIFIED: I’ve got one to throw in the hat there.

STUDIO: Who?

UNIDENTIFIED: The meter maids. The parking meter maids? Absolutely. They’re like all over the place, whipping around and then, you know, I could be in an illegal spot for 30 seconds and they’re already on — you know, right on me, writing a ticket. I’m like where did you come from, like psycho.

STUDIO: That’s because they have new fangled technology that allows them to know when your meter –

UNIDENTIFIED: Absolutely.

STUDIO: — is expiring. So are you ready for the holidays out there or are you like me, are you in for the last minute to do all you have to?

MR. BOWSER: Well the next couple of days, you were the recipient of a pound of fudge from Mrs. Nelson’s Candy, and I have a –

STUDIO: So that’s pure Mrs. Nelson’s fudge in that box?

MR. BOWSER: That’s chocolate chocolate, penuche and penuche there. But I’ve — over the last decade or more, I’ve always made a habit of handing out fudge at Christmas to all the folks that I regularly come into contact with and work with and have the pleasure of hanging around with so. That’ll be on my list of things to do in the next few days.

STUDIO: Alright, well we’ve got some things to talk about this morning. A number of things that you want to kind of touch on. First of all, as we get to the holidays, anything that — I’ve noticed all these local police departments and the big campaign here. Drive sober or get pulled over. This is not a time to get reckless or take chances with driving an automobile.

MR. BOWSER: It never is, but the holiday season, you generally see an up-kick in the enforcement of OUI, drunk driving, because there is usually grant money available to a number of police departments, and — and that’s federal grant money to do specific patrols, extra patrols, just for OUI detection and arrest. You’ll see it at Christmas, you’ll see it at New Year’s. Again, we may see roadblocks over the holiday season and you will see extra patrols. They are out there during the holiday season doing their job.

STUDIO: I wanted to ask you about something that was interesting as we received news that the new Lowell courthouse there is kind of back on the — on the front burner for a lack of a better term. One of the things that helped put it there was a recent tour by the person in charge of the buildings andthe facilities.

MR. BOWSER: Uh-huh (yes).

STUDIO: Basically ripping the existing courthouse in Lowell saying that they’re — you know, if they were a house, they’d call them uninhabitable. Are the courts — you work all around and you also work in New Hampshire.

MR. BOWSER: Yes.

STUDIO: Are the courts in Lowell that bad?

MR. BOWSER: If — you know what? I’m really thankful that wasn’t on my list to discuss, but I’m so glad you asked me that question. I — my practice takes me — because of the nature of my practice and where my business comes from, I tend to travel all over the place. And by way of example, I can tell you that in the last two years, I have tried cases and just, this is just a handful of cases of places I’ve been. The Brockton District Court. Brand new facility, gorgeous, secure, clean, huge. The Plymouth District Court. Same thing. Brand new facility, just an excellent, excellent place to go if you have to go to court. Worcester, Taunton and then there’s a whole litany of places, even the Lawrence District Court. The Lawrence District Court has been, you know, open in its new form for over ten years, but just the fact that they, they have these facilities in all these other communities. Salem, Massachusetts, I’ve tried. There are new courthouses, new facilities in basically every other urban community in the Commonwealth but for Lowell and I believe it’s either Fall River or one of the, you know, southern seat area that needs one. But we are desperately, desperately in need of a new facility. The Lowell District Court is one of — and I don’t mean this as an insult to anyone who works there — but it is one of the most decrepit facilities that I appear in regularly. It is old, it is dangerous, it is dirty just by the nature of how difficult it is to upkeep it. It is difficult to secure. And it’s difficult to work there. For the people that work there –

STUDIO: It affects work performance.

MR. BOWSER: It absolutely –

STUDIO: — does it not?

MR. BOWSER: It absolutely does. And the people that work there, it is one of the busiest district courts in the Commonwealth. The people over there literally work their tails off and they deserve better. And the community here deserves better. It’s a busy court, there’s a lot of business that comes in and out of that court and they should and they will eventually, hopefully soon, combine the superior court, th district court, the probate court, the housing court, the juvenile court into one big, new, safe facility.

STUDIO: Alright. A couple of things that I know you wanted to touch on. One of them was odor of — was it marijuana.

MR. BOWSER: A friend of mine just recently put on a, wha we call a CLE, a Continuing Legal Education. Jason Green, he’s with the CPCS, and he put together a nice compendium of recent changes in the law. So I thought that would be interesting to bring to the listeners. Yeah, by way of example, there’s been a change in the law in Massachusetts over the last couple of years. A couple of cases that come down regarding the odor of marijuana. Typically –

STUDIO: I believe there was — was it here in Massachusetts the case where an officer did a search because he smelled marijuana, but it got thrown out.

MR. BOWSER: Because we changed the law here in the Commonwealth. The Legislature adopted a new statute that says that possession of less than one ounce, if you’re over the age of 18, is a civil infraction.

STUDIO: Okay.

MR. BOWSER: It’s not a criminal act. Therefore, the mere presence of the odor of marijuana or even freshly burnt marijuana, that no longer gives rise to probable cause to arrest or search because the mere presence of marijuana without knowing exactly how much is there, is not a criminal act. So you still need what are called reasonable articulable facts to conduct a search based on that odor. And there has to be other facts available to let an officer know that there may be something more than an ounce present.

STUDIO: Now is that a search as it pertains to finding someone guilty of drug possession or distribution? Or for the fact of driving while impaired, because the — I would think the smell of marijuana in the air in an automobile would kind of be like having an open container. That would be a legal no in terms of driving under the influence.

MR. BOWSER: Well there’s actually no case law on that point and there is specifically a case, Commonwealth v. Bassinet, and Commonwealth v. Bassinet holds that the presence of an odor of an intoxicating beverage, that in and of itself, just the mere fact that there’s an odor emanating from the driver. No slurred speech, no eyes, you know, no difficulty answering questions, no erratic operation because Bassinet was stopped at a roadblock.

STUDIO: Uh-huh.

MR. BOWSER: But the mere presence of the odor of alcohol was enough to direct that car, seize that car and direct it out of the line of traffic, into the pit for testing and field sobriety tests and ultimately an arrest. Now there is not a case on point that says, and this will come up I’m sure, that just because there’s an odor of marijuana, can an officer further detain that person for investigating an OUI drugs charge. And what’s interesting is I have this case right now. I don’t believe a police officer without some kind of specific training can state an opinion as to whether someone is impaired by marijuana. And that Canty decision that I put there before you. That’s a case that came down just within the last month or two where the SJC reminder the Courts that police officers can state an opinion as to whether a person’s impaired by alcohol. I don’t think they can — I don’t think they can state an opinion as to whether you’re impaired by marijuana. But they cannot state an opinion as to whether a person’s ability to operate safely is impaired by alcohol. That’s the jury instruction and that’s the province of the jury.

STUDIO: It’s interesting because I have a hunch with where we’re moving, A) with the medicinal marijuana and the dispensaries, and you know, who knows, some folks who are trying to outright legalize the use of marijuana here in the Commonwealth, and that may be, you know, not too far down the road. This is going to be a legal battleground, a lot more if I’m kind of reading the tea leaves correctly.

MR. BOWSER: Absolutely. The interesting thing about — especially drug defense, is that it is so fact intensive. You know, from, you know, the law is the law, but the facts of every case are different ever so slightly from one case to the next. And you’ve got to plug those facts into the law as it exists and that odor of marijuana, whether that’s grounds to further an OUI investigation, is a perfect example of where the facts will eventually take us bumping up against the law, and you know, a new decision will come down.

STUDIO: Well we’ve talked about, in terms of alcohol, they can measure your blood alcohol content and if you come above that legal limit, then you’re in a lot of trouble. There is no such test for drugs, whether it’s prescribed medications or illegal drugs, right? Is there a blood test that can –

MR. BOWSER: Well –

STUDIO: Well they say, okay if you’re above a certain amount of, you know, traces of marijuana or cocaine or Oxy, you’re under the influence.

MR. BOWSER: Well there’s a — well two — there’s a distinction to be drawn between licit which are prescribed drugs, and illicit drugs which are your narcotics such as cocaine, even marijuana, heroin. There is no per se level for any particular substance other than alcohol.

So if you tested positive on a blood test for heroin, cocaine, marijuana, first of all, there’s going to be no administrative suspension like there would be if you took a breath test at the time of the arrest and you’re over, and when you walk into a courtroom, there is no per se level.But certainly the government could employ a toxicologist to come in and testify about the presence and the amount of that substance or its metabolites in your blood. And then depending on the substance, they may be able to state an opinion as to whether a person was under the influence of that particular substance. Again, your typical roadside encounter that results in an OUI arrest, the police officer, he or she is typically not qualified or anywhere near qualified to state an opinion as to the impairing effects of any number of substances, whether they be licit or pr

STUDIO: So this is interesting to me because I’m old enough, I think I’m old enough to remember when the charge was DWD, driving while drunk. And suddenly the “D” got replaced by an “I” and it became under the influence. So that influence, I assume influence would cover other things besides alcohol. Yet if I’m reading this thing correctly the, the substance that is legal to use up to a certain degree, alcohol, legal to purchase it if you’re of age, legal to drink it if you’re of age, can get you into a lot more trouble if you’re using it or under the influence of it while driving than the illegal stuff that you m

MR. BOWSER: Well you can certainly be arrested and charged for being under the influence of the illegal substances. I think that it’s sometimes more difficult to prove. If it is a licit drug, a prescribed drug, the burden is on the Government to show that essentially the driver knew of the ill side effects that could occur, took the prescribed medication knowing what the ill effects could be, and then drove. That’s a very difficult thing to prove. If it’s a narcotic or an illegal substance, they don’t have to prove that knowledge. So basically if they can just prove that you’re under the influence of heroin, that is enough to prove guilt. So you’re still going to be charged being under the influence. It’s not like you’re getting a freebie and it’s actually becoming much more prevalent. People driving around, taking their medications as prescribed, and not realizing the effects of those prescribed medications, because they can impair.

STUDIO: Did you say, can they give one of those field sobriety tests if it’s — if it’s say heroin as opposed to alcohol?

MR. BOWSER: The field sobriety tests, the standard three that you will always see administered and that officers are trained to give is the, what’s called the horizontal gaze nystagmus, the walk and turn test and the one-leg stand test. Those tests were designed to determine impairment by alcohol, because supposedly they mimic a person’s ability to drive. They were never designed for the determination of impairment by any other substance.

STUDIO: It’s 8:00 here on 980, WCAP. We’re chatting with Attorney Michael Bowser, a member of our Expert Network. We’re going to override the ABC news because I want to get to a couple more quick things with you. First of all, school zone infractions. One of the earliest lessons I learned while driving was don’t get caught speeding in a school zone. I was very fortunate. I got off with a, a very stern warning, but I also found out that the penalties are much harsher. You could lose your license for speeding in a school zone.

MR. BOWSER: And the school zone that I was referencing was the, again, a change in the drug laws. And there are specific regulations for speeding in a school zone. Often times you’ll see a crossing guard in a school zone, and you want to take extra care being slow through that zone. A recent change again in the drug laws. A decision came down where the school zone for purposes of possession with intent to distribute a drug within a school zone — (audio interrupts) they’re also clogged and so are the jails with the mandatory minimum sentences that flow from possession with intent to distribute from a school zone. So put yourself on any street corner in Lowell, it’s not too hard to find a school or a daycare center within a thousand feet of pretty much any corner in Lowell. Now, if you take yourself out to Westford or Littleton or Boxborough, that’s not the case. So the SJC said that the impact of that law was affecting essentially urban folks more so than anyone else unfairly. They reduced that school zone to 300 feet.

STUDIO: Yeah, they changed that law. Is it — you know, we hear an awful lot about the backlog in courts. Pretty much drugs and substance abuse in one form or another, be it for crime, burglaries that, you know, are spurred on by drug use or the actual distributing, using, operating under the influence.

MR. BOWSER: I think if you eliminated alcohol and drugs from the docket. Meaning if you removed those two issues from every case in the Lowell District Court, the docket would probably shrink by about 75 or 80 percent. And that’s — that is just the nature of the practice in the district court.

STUDIO: Wow.

MR. BOWSER: It’s usually many offenses, whether they be theft or assaults or driving under or drug, you know, they’re related to drugs or alcohol.

STUDIO: But I’m guessing that even you as a defense attorney wouldn’t argue that it’s — some of these offenses need to be prosecuted, correct?

MR. BOWSER: Most of the cases that — well, let me back up there. A lot of the cases are there for good reason and some are not. So it’s, you know, the decision on the street by the police is to make an arrest based on probable cause. They do that. Lowell has — it’s an urban setting, there’s obviously a higher rate of crime here in Lowell than there is in some suburban communities, and that’s part of it, is that we — that is why we are so busy in Lowell.

STUDIO: Will the presence of the drug court that has been talked about coming to Lowell, will that change things? Will that alleviate the backlog in the regular court system?

MR. BOWSER: I think the goal with the drug court is to remove from the regular docket, people that have drug offenses with the hope that their participation in that program will mean that they won’t see them again. And that’s really the goal of the drug court, is to remove from the docket persons that are struggling with addiction issues. Give them the opportunity to get treatment without the burden of maybe the regular probationary system or a conviction, with the hope that they don’t come back. That they get off that path.

STUDIO: What percentage of the folks that you see as defendants in courthouses are repeat offenders, especially in the drug thing. I would guess a very high percentage?

MR. BOWSER: On the drug side of things? I would say a very high percentage of defendants are in fact repeat offenders. That’s what the drug court is trying to avoid. They’re trying to get people off that track, into some form of treatment, counseling, supervision and remove them from that track of coming back over and over again.

STUDIO: Attorney Michael Bowser. He is a member of our Expert Network, and we chat with him on Thursdays here on Merrimack Valley Radio. You have offices both in Massachusetts and New Hampshire. Chelmsford and Nashua if I remember correctly.

MR. BOWSER: Yes we do. And you’ve always asked me how people can reach me. You can also follow me on Twitter @BowserLaw.

STUDIO: You’re on the Twitter sphere now.

MR. BOWSER: I try to tweet twice a week just to give people an update as to what I’m doing and where I’m going so if you want to follow me on Twitter @BowserLaw, and the website isBowserlaw.com.

STUDIO: Just don’t follow those tweets too closely when you’re driving your vehicle or else you may be in need of his services.

MR. BOWSER: Right.

STUDIO: Counselor, thank you so much for coming in. Thank you so much for the Mrs. Nelson’s Fudge. You don’t know what you’ve done to me by bringing that in. Merry Christmas, Happy Holidays, Happy New Year to you and your family.

MR. BOWSER: Teddy, Merry Christmas to you and to all your listeners as well.

Holiday Season DUI Roadblocks – Expert Network, November 27, 2013

STUDIO: We’re very excited to welcome in a member of our Expert Network, Attorney Michael Bowser joining us in studio this morning. Good morning, Counselor, how are you?

MR. BOWSER: Good morning, Ted, I’m doing very well. Nice to be back.

STUDIO: Good to have you here. You are a very, very busy man?

MR. BOWSER: I am. I wish I could be here more. I just want to let you know, I’ve gotten a tremendous amount of positive feedback. As you know, I travel all over the place. I was in Belchertown of all places yesterday, and up to Portsmouth and down towards Brockton, everywhere in between. But I’ve had people walk up to me in the Lawrence District Court from Andover and say they’ve heard the show and people from Hudson, New Hampshire commenting to me that they’ve heard the show, so I’m getting a lot of great feedback from this little spot that we’re doing.

STUDIO: Well as we like to say, everybody gets it and we also like to say, we hope that people don’t need your services necessarily. But look, it’s a reality. And this is, you know, as we talk about coming up on the Thanksgiving weekend and the holidays, you know, it’s a time where law enforcement steps up its patrols, so it’s extra important for people to be really cautious out there. And you know, if there’s any question about whether you’ve had a drink too many or don’t. If you have any question in your mind, don’t get behind the wheel of a car.

MR. BOWSER: Well as my brother Kenny says, you know, the Wednesday before Thanksgiving is amateur night, meaning everybody in the world is going to be out on the road visiting, socializing and I just remember locally in Chelmsford, it’s the night that everybody comes home from school, everybody seems to be out at the local establishments. And law enforcement is absolutely on their toes. They’re aware of the fact that there’s going to be a lot of people out drinking. And they do, they step up their patrols. Around the holidays you’ll see actually special grants that are given by the federal government and that allows local and state police to put extra patrols on the roadway. You see them at Thanksgiving. You absolutely see them around Christmas and New Year’s as well. I wouldn’t be surprised if there is a roadblock established either locally in Lowell. I’ve seen them in Tewksbury. We’ve seen them in Billerica. So just be aware. You have to be careful because there’s a lot of law enforcement on the road and there’s a lot of people on the road.

STUDIO: And all of it is — the goal is a good one. It is public safety. We don’t want to wake up on Thanksgiving morning or the Friday and read about a family that, you know, lost its life tragically. We’ve talked about this in the past, but just a maybe a good little refresher here on roadblocks because they are going to be out there this weekend. We already know that in Middlesex County, they’re going to be set up in locations. That word has come out from the state police and the local police.So what is the proper procedure you have to follow as a driver if you come upon a roadblock and you are, you know, and the officer approaches your window?

MR. BOWSER: Roadblocks are set up. They are almost always set up and maintained by the Massachusetts State Police and then there’ll be a local complement. So if they’re — I have one right now in Hingham where the state police are setting upon 3, Route 3 in Hingham. They’ve got a complement of local Hingham Police Officers complementing their deployment. And they put two what they call screeners in each row. So on Thorndike Street here in Lowell, outside of the Gallagher Terminal and the Comfort Furniture. They will put two screeners outbound, two screeners north inbound. What those screeners do is they stop, they’re suppose to stop a set pattern. Either every vehicle or every other vehicle or every third vehicle. And then if traffic backs up to a certain point where there’s a safety vehicle or there’s a 10,000 pound or more truck or a flammable liquid or an emergency vehicle, everybody gets waved through.

The way that they do it is they stop every single vehicle. And what they’re going to do is they put up their hand and you approach slowly. They ask you to roll down your window and they will say something to the effect of, good evening, this is a Massachusetts State Police sobriety checkpoint. Have a good night. And in that brief, very brief exchange, if they notice anything indicative of drinking. Whether it’s an odor of alcohol, your speech when you say hello, goodnight, good evening is a little bit off. If your eyes appear to be red or glassy. Any of those, you know, typical indicators, even one of them, even the mere odor of alcohol. They’re going to follow up with have you been drinking, where are you coming from.

They’re then going to direct you into the pit. And the pit here in Lowell is set up in that parking lot of the Comfort Furniture and there you’ll meet with another officer. He’ll remove you from the vehicle and you’ll be involved in field sobriety testing.

STUDIO: Are they allowed to ask those questions beforehand? Because I’ve gone through the one on Thorndike Street and I have been asked where — you know, good evening, you know, how are you, where are you coming from. And I said, I just literally got out of work and I’m going home.

MR. BOWSER: Yeah. And I’ve litigated that with judges in various district courts across the commonwealth. They’re suppose to adhere strictly to a written operational plan. The written operational plan says that they may ask other additional questions only if they develop reasonable, articulable suspicion of impairment. And that is a legal term. It basically means they need to see the facts that lead them to believe that you’ve been drinking, and then they are allowed according to the plan to ask a couple additional questions.

But they can’t just come out of the gate firing questions at every driver, where are you coming from, have you been drinking, where are you going. They’re only suppose to slow you down, excuse me, and interrupt you with those questions if there’s a reasonable suspicion that you are in fact impaired.

STUDIO: What — what if they do have a suspicion that you’re impaired. What happens then? What are your rights there as a —?

MR. BOWSER: Well at that point, you are seized. They’re going to give you a directive to move off of the main roadway, which in this case is Thorndike Street. They’re going to move you into that parking lot where one of several other police officers or troopers will direct you to a particular spot. There they’re going to ask for license and registration. They’re going to ask you to exit, excuse me, for purposes of field sobriety testing. And as we’ve discussed before, you have every right in the world to refuse to take field sobriety testing. They don’t have to tell you that. And most people are unaware of it and most people will fall into the pattern of just getting out and taking those tests, which as you know are designed to fail. They’re not easy to pass. They’re difficult under the best of circumstances.

STUDIO: I failed one right here that you gave me on the air.

MR. BOWSER: Right.

STUDIO: Stone cold sober. I hadn’t had a drink in six days.

MR. BOWSER: So you have a right to refuse but they don’t have to tell you. They’re going to ask you to take a preliminary portable hand held breath test. You have a right to refuse that. They don’t have to tell you that. And then ultimately if they place you in custody, they’ll ask you to take a breath test right there on the scene because they have what’s called a mobile breath testing trailer, the batmobile, b-a-t, and that trailer is equipped with a couple of breath test devices. They’ll ask you to take a test there and again, you have a right to refuse. There are some serious consequences to that refusal administratively, but that’s a choice that you’re going to have to make.

STUDIO: As we say, we certainly hope nobody will need your services because everybody will obey the laws and will not jeopardize their own lives or their families or anybody else’s, but things happen. And as we know, we have to be realists. What’s the typical process. Let’s say I get in — I do something stupid this weekend and I am in need of your services. I call you, I reach out through the web, and we will give all that information. But what’s the next step?

MR. BOWSER: Usually I’m contacted by telephone. Most often I’m contacted through my website.

STUDIO: Should I call you on that night? Should I call you from the police station as I’m pulled in? Should I not even wait until the morning after?

MR. BOWSER: Well most people are calling me within 24 hours of the arrest. In Massachusetts, if you get arrested on a night preceding a weeknight, most often you’re going to be before the Court for your arraignment the very next day. And what people don’t understand is in most, you know, typical OUI circumstances, you don’t necessarily need a lawyer for your arraignment, because the only thing a judge in a district court, whether it be Judge Brennan here in the Lowell District Court or Judge Rooney in Lawrence, they’re going to call your case and they’re going to tell you, Mr. Panos, we’re entering a not guilty plea on your behalf.

STUDIO: Okay.

MR. BOWSER: If you’re going to hire a lawyer, you need to be back here on the pretrial date of such and such, or they’ll appoint you a lawyer. So for purposes of the arraignment, the next day in the court, the only thing they’re going to do in Massachusetts is enter a not guilty plea and put it over to the next event, which gives you plenty of time to meet with,retain a qualified lawyer. In New Hampshire, the arraignment date is usually two to three weeks down the road. So you have plenty of time before your next appearance in court.

But people call me and what I’ve found which is amazing is, if you don’t get back to people within hours, they’ll move right on. I mean the internet is an amazing thing. It’s not the yellow pages anymore. You can google DUI defense lawyer and you’re going to get 70 hits for various websites for various attorneys throughout Massachusetts.

STUDIO: But you’ll only get a handful of certified ones which you are in both Massachusetts and New Hampshire.

MR. BOWSER: Right.

STUDIO: And that’s — we’ve discussed that in the past. It’s very important.

MR. BOWSER: Yeah. I’m one of three board certified and I like to call them my friendly competitors. Stephen Jones of Norwell, Jay Milligan also of Norwell. Two very highly qualified lawyers. And you’ll bump into them on the web as well. And we certainly talk to the same people over and over again because of the frequency of inquiries that people make on the internet.

STUDIO: So what’s the process like? You and I hit it off, so if I ever were in need of services, I would certainly be calling you and I know we would, we would, you know, have an easy time. But some folks get afraid.

MR. BOWSER: Yeah.

STUDIO: They get intimidated by attorneys. How scary is the process? How does the process begin once they come into your office? I assume you want to do a face to face meeting to get the ball rolling, correct?

MR. BOWSER: Absolutely. And I’ve actually been told that some people — I have a lot of YouTube videos that are up on the web and people seem to — I guess I put them at ease on the videos. Maybe it’s the way I come across on the videos, but most people come in, they’re very apprehensive, they’re scared, they don’t understand what is going on. So my practice on a DUI or any other criminal defense matter is I put people on the schedule, I get them into my office, and I spend an hour. I tell people, listen, we’re going to spend an hour together. We’re going to go over everything. So that when you leave that meeting, you know exactly what your decision points are going to be and what’s going to happen potentially in this case. And it’s a free consultation. I give them a written fee agreement.

STUDIO: I was about to ask you.

MR. BOWSER: Yes.

STUDIO: Does the clock start running in that hour or no?

MR. BOWSER: And I tell people — no. Typically that appointment takes an hour, but I let people know up front, it’s a free consultation. Otherwise I think people would be even more apprehensive to come in. So I give everyone just as a general rule and a general practice, an hour of my time as a free consultation. And I don’t mind doing it. Most of the folks I meet with hire me. So it’s a very good investment of time for me and for the client.

STUDIO: Can you tell on that first hour, whether you have a good case or whether you’re going to convince your client that they’re in trouble, they need to —

MR. BOWSER: Well my job as we’ve discussed, is I’m in the protection business. And how I’m going to end up protecting that particular person’s rights changes from case to case. So I have to inform them. And based on my experience, tell them what I think is going to happen and what may occur if they go to trial versus if they resolve it by way of a plea. And I’m very clear with people. I don’t make those decisions for you. I’ll tell you what I think, and I work for you, and you tell me what you want to do based on my advise.

STUDIO: We’ve actually have a question about what happens

25 in the worst case scenario, but let me open up the phones, we have a question from one of our loyal listeners. Dean from Chelmsford. You have a question for Counselor Bowser? Good morning, Dino.

CALLER: Yes, Counselor Bowser, good morning.

MR. BOWSER: Good morning.

CALLER: I have this question. Ever since I was a young boy, they’ve always said that driving was a privilege. What Supreme Court decision made that a privilege rather than a right to drive? Or can that be overturned down the road?

MR. BOWSER: Well I can tell you that you’ll find most of what we consider our enviable rights contained in the U.S. Constitution, the Bill of Rights or even the Massachusetts Declaration of Rights. You will — you will not —

CALLER: I get that.

MR. BOWSER: You will not find in any of those documents the right to drive a motor vehicle or the right to have a driver’s license, and therefore —

CALLER: Right.

MR. BOWSER: So I can’t point to a particular decision, but there are a number of decisions that point to the fact, and always make a point of telling us that, your right to drive is in fact a privilege. So you’re entitled to some due process before the Government takes away your driver’s license.

CALLER: Right.

MR. BOWSER: But not the same level of due process you would as it applies to your right to remain silent or your right to privacy, your right to elect your government. It is a privilege, it’s not set forth in any of the documents that we would typically think of when we think of our rights. It’s not in the Declaration of —

CALLER: So.

MR. BOWSER: It’s not in the U.S. Constitution —

CALLER: Right.

MR. BOWSER: — Bill of Rights or the Massachusetts Declaration of Rights.

CALLER: So in other words, we could put an amendment to the Massachusetts Constitution saying it’s a right until proven otherwise?

MR. BOWSER: You would have to have an amendment such as that.

CALLER: Exactly. Okay.

MR. BOWSER: Yeah.

STUDIO: Thanks for the question, Dean.

CALLER: Alright, thank you very much.

STUDIO: Here’s a question I have for you, and I didn’t realize this until you came in this morning, but. Again, assuming I do something stupid this weekend and despite your best efforts and all your skills and expertise, I lose because I, I did something stupid. I lose my license automatically. What happens if that’s going to cost me my job, my mortgage and whatnot. Am I done?

MR. BOWSER: Well this is, again, and you bring up two points. One, if you ever meet a lawyer who says he’s never lost a case, turn around and run. And I tell people during that initial consultation, they always ask me, what is your success rate and how do you do. I say I do very well, but I am the last person, I would never tell anyone I win every case. If you meet a lawyer that says they’ve never lost, then they’re really not trying cases. I try a lot of very difficult cases, I don’t always win. If there’s a finding or if you enter a plea in Massachusetts, you’re going to lose your license. On a typical first offense, Mass resident in a Massachusetts courtroom, if you take a guilty finding or a continuance without a finding, you’ll lose our license and you probably have already lost it because of a test over or a refusal, but you are then qualified, if you are on probation and enrolled in the alcohol education program, to apply for a hardship license. Massachusetts has some pretty decent liberal rules for a hardship license which is the 12 hour Cinderella work license on a first offense. What people don’t understand though, is you can’t get a Cinderella license or a hardship license unless you’ve been sentenced on the OUI.

STUDIO: That’s what I was curious about, because the license is automatically pulled. So you’re in tough shape until you actually get that court case, correct?

MR. BOWSER: Right. So you’re either — if you’ve hired me or someone like me, you’re either going to resolve it by way of a plea or you’re going to fight it all the way to a verdict. If you’re fighting it all the way to a verdict, that process in most district courts takes several months to over a year. And if you’ve lost your license at the time of arrest because you refused a breath test, you lost it for 180 days, you’re not driving for that 180 days because you’re not in the program, you haven’t been sentenced by the court and you’re not on probation, so you can’t get a hardship. So that confuses a lot of people. They think that when they get arrested, they’re suspended but they can get a hardship. You can’t get a hardship unless you’ve been sentenced on the OUI offense.

STUDIO: What if I take the breath test and the field sobriety test and then flunk it. Can I then get that appeals license?

MR. BOWSER: Well then your license loss is 30 days, because you took the test. So most people can get through the 30 days, get reinstated and then they’re driving from the 31st day until whenever we get to trial sometimes several months to 25 a year later.

STUDIO: How has that passed constitutional muster that, again, we live in a country where we are innocent until proven guilty. So by failing to take a test, you lose a privilege for six months. If you take the test and fail it, you only lose it for 30 days?

MR. BOWSER: Because as Dean from Chelmsford pointed out, your driver’s license is a privilege. It’s not a right. So they can take away that privilege without the due process of a trial. There is no presumption of innocence administratively with the registry of motor vehicles.

STUDIO: Crazy. Crazy. Now lest people think that the only cases you handle are driving under the influence cases. You do handle a variety of other cases. I’ve seen your name banded about in the newspaper on a very public case as a matter of fact.

MR. BOWSER: We’ve done, I’ve done, over the years I’ve always done all types of criminal defense. My practice has essentially grown into a DUI defense practice, that’s about 90 percent of my criminal work. But I’m still involved day to day in all kinds of drug defense, domestic violence, larceny, theft, all of the things that you would think of typically you could get arrested for you might be reading about in the newspaper. And those things, the rules that apply to drunk driving defense are the same rules that apply to all of those other types of criminal cases.

1 In the drug defense world, it’s, you know, how did you, the police and the contraband come to be in the same place at the same time. And it usually boils down to an issue of search and seizure. And those same rules of search and seizure and your right to privacy, they apply in drug defense cases. They also apply in roadblocks and drunk driving cases.

STUDIO: So whether it’s drugs or alcohol, it doesn’t matter legally in terms of the impairment?

MR. BOWSER: No. Well there’s different standards, but —

STUDIO: For instance can a breath — let’s say I have snorted cocaine or smoked enough marijuana to impair myself. Will that show up in a breathalyzer?

MR. BOWSER: You’ll be charged with DUI or driving under the influence, OUI drugs in Massachusetts, but there is no per se amount. So there’s not a — a .08 blood alcohol is the legal limit for purposes of alcohol. There is no per se for heroin, cocaine, THC —

STUDIO: But can they prove that use through a breathalyzer?

MR. BOWSER: If it is — no, they can’t. They can prove it through — they can prove the presence of the drug, the metabolites from those drugs. They can have a toxicologist come in and testify as to what particular levels of a drug may be impairing.

The interesting thing today is you see so many people driving that are prescribed all kinds of medications, and those prescribed medications taken as directed by their doctor can impair. And I’ve had, I just recently had a — for the, you know, I’ve had several OUI drugs. And the drugs were prescribed. That’s a difficult case for the government to prove because they have to prove that you knew of the impairing effects of those prescribed drugs, took them anyway with full knowledge of the effects, and then became impaired and drove. That’s a very difficult case for the government to prove, as opposed to you’re on PCP or heroin or cocaine.

STUDIO: Well there are certain drugs where the prescription, they’ll tell you do not operate a motor vehicle or machinery, correct? Like if you’re, if you’re, let’s say if you’ve had surgery and they’ve given you the Oxy or whatever pain killers. But there are certain over the counter things that can impair. Listen, I’ve battled allergies my whole life and there are certain allergy medications over the counters, actually maybe they’re not over the counter anymore, you have to show a license. But they’ll make you drowsy? You know, Sudafed use to make me drowsy when I was taking it for my allergies. How does the law treat those?

MR. BOWSER: If that Sudafed is taken to the point where it renders you or reduces, diminishes your ability to drive safely, then under the law, you’re impaired or intoxicated as we say in Massachusetts; however, under the influence of that particular Sudafed, they would need to prove that you knew about the effects of that drug before you took it. And that’s where the difficulty is for the government in proving the OUI prescribed drug cases versus the elicit drug cases.

STUDIO: He is Attorney Michael Bowser. Offices in Chelmsford and in Nashua. He is a member of our expert network and he joins us periodically on Merrimack Valley Radio in the Morning. If folks need your services, again let’s hope you don’t get any new clients this weekend. I don’t want to do you financial harm, but I’m certainly hoping that we have a safe weekend and nobody is in need of your services.

MR. BOWSER: No, I as well. I hope everyone, you know, does take it easy and pick a designated driver, drive safely. There’s going to be a lot of people out on the roadway this weekend. If anyone does need my services, they can certainly contact my office in Chelmsford or Nashua. Through the website www.bowserlaw.com.

STUDIO: And you do do an awful lot of other services besides motor vehicle and operating —

MR. BOWSER: Personal injury practice as well as other drug defense and other criminal defense work.

STUDIO: And you’ll be honest enough to admit you don’t win every case as well.

MR. BOWSER: No. No. I’ve tried hundreds.

STUDIO: An honest attorney. Who’d have thought they exist.

MR. BOWSER: Yeah, I’ve tried hundreds and I have not won them all. No.

STUDIO: Counselor, happy Thanksgiving to you and your family.

MR. BOWSER: Thank you, Teddy.

Expert Network Interview of Attorney Michael Bowser September 26, 2013

STUDIO: It is time for us to welcome in a member of our Expert Network, Attorney Michael Bowser joining us in the

studio. Good morning, Counselor, how are you?

MR. BOWSER: Good morning, Ted, how are you doing?

STUDIO: I’m doing well. Good to have you here.

MR. BOWSER: Nice to be here. I wanted to tell you, I’ve got a lot of positive feedback about your show and a number of people have approached me and said they’ve enjoyed my segments and I want to thank them for listening, and I tell you that they enjoy listening to you.

STUDIO: Can I get you to write that down in like a testimonial so my boss can have it and I can bring it into my next contract negotiation?

MR. BOWSER: Absolutely.

STUDIO: Sounds good. I know you want to give me a field sobriety test today and I held back, I only did my three morning shots of Tequila instead of five, so that I could have somewhat of a chance to pass it here. But before that, I’m just kind of curious, I wanted to get your thoughts on the case up in New Hampshire. The bicyclist who — I’m sorry, the 19 year old who crashed into a bicyclist, tragically killing two. And this morning we are seeing charges being filed now against the woman who supplied her allegedly with the drugs and also the woman who’s automobile the unlicensed driver was driving. The charges right now are supplying narcotics to somebody and also knowingly allowing an unlicensed person to drive your vehicle.

MR. BOWSER: Uh-huh (yes).

STUDIO: How much trouble is the 48 year old woman — and I know the 19 year old is in a world of trouble, but how about the 48 year old?

MR. BOWSER: The 19 year old is in a lot of trouble, charged with vehicular assault and that in New Hampshire can certainly carry a state prison sentence times two unfortunately, because two of those cyclists from Massachusetts were killed as a result of that collision. The 48 year old. I just learned of this this morning. I’m in the midst of a three trial week, so I have not been following the news that closely, but I did hear this morning that the second person is going to be charged with not only supplying a, I believe a prescribed drug, not prescribed to that person, as well as the vehicle, knowing that the driver did not have a license to drive. Apparently the 48 year old picked up the 19 year old from an earlier motor vehicle stop about eight hours earlier in the day.

STUDIO: Correct.

MR. BOWSER: I believe it was the Hampton Police Department, had made a motor vehicle stop for a speeding violation, held the vehicle, and apparently this person retrieved not only the vehicle, but the 19 year old, and allowed that same 19 year old to drive.

So is she in trouble? Absolutely. And I would imagine she’ll end up before the Rockingham Superior Court in New Hampshire.

STUDIO: Well what are we talking about here in terms of potential trouble? This is the part that I’m really fascinated with why it’s become so public. Obviously illegal to supply drugs to somebody but it happens every day. We probably, you know, slap on the wrist and dismiss millions of cases a day in the United States on that. Allowing somebody to drive a motor vehicle improperly. Again, I would imagine slap on the wrist is a penalty.

Where this turned into a vehicular homicide or whatever those charges ultimately turn out to be, can the 48 year old somehow be connected as an accessory to this? Is that the end game here?

MR. BOWSER: I don’t think it’s an accessory. And I don’t know specifically what charges have been brought against that 48 year old. I would imagine that they may be looking at it as a reckless conduct, where her decision to supply the vehicle with knowledge that the driver not only was possibly under the influence, but without a driver’s license, is reckless conduct. Meaning a decision or behavior or a judgment that put someone else in danger and she did that knowingly.

STUDIO: Reckless conduct. Is that normally a serious penalty?

MR. BOWSER: Can be. I just tried a reckless conduct criminal trespass two weeks ago in Rockingham County involving a motor vehicle. And it was ultimately, things were resolved favorably, but it was a felony.

STUDIO: Right.

MR. BOWSER: The reckless conduct charge, the operation of a motor vehicle where someone was allegedly almost placed in harms way, that was brought as a felony charge.

STUDIO: So it is a serious charge then. Obviously the blood work will come back. It appears that, you know, the drugs were supplied at 1:30 in the morning on a Saturday. Sounds like, you know, a Friday night of partying melts into Saturday, and then on Saturday morning at 8:00 a.m., the person gets behind the car. Does the time away from it, you know, is that going to bring in driving while impaired situation there?

MR. BOWSER: Well you’re ahead of me on the facts. That’s information that I did not know, but every substance that has the ability to impair a person’s ability to drive safely has a half life. Whether that be alcohol or any number of prescribed medications or even illicit substances. Meaning you can have a drug on board. The effects of that drug can be short lived, they can be a number of hours, and then the presence of that drug in the system or the metabolites or the cast offs of what you see after that drug has metabolized, can be present in the system for hours, days or weeks.

So yeah, the blood alcohol or — strike that — the blood toxicology, if that’s the allegation that she was impaired is going to be critically important.

STUDIO: I guess what I’m trying to dig at here is where is the responsibility of the supplier, or in the restaurant, bar, hotel business, the server. And let’s say somebody’s at an establishment. We’ll pick my establishment. They’ve had a few to drink.

MR. BOWSER: Uh-huh (yes).

STUDIO: They, they get in their car, they get home at 1:30 Saturday — early Saturday morning and fall asleep. No accidents, no nothing, nobody’s harmed. Then this person gets up at eight in the morning in the hypothetical and gets into a car accident, after sleeping for six hours. Am I as the server like this woman in New Hampshire, am I still responsible? Where does my responsibility in terms of the alcohol supplier begin and end?

MR. BOWSER: Well if you’re talking about criminal responsibility versus civil responsibility, two different things. But I’ll put it in terms of civil. Basically every person whether someone is serving alcohol or driving a motor vehicle or maintaining a property, is held to a reasonable person standard. So at your particular restaurant, was it unreasonable to serve somebody two glasses of wine with dinner and then allow them to drive home. Absolutely not.

Is it reasonable to serve a person two glasses of wine when that person walks into your establishment already and clearly impaired, yes it is. So it’s a very fact specific analysis, but generally every person that dispenses alcohol or prescriptions, drugs, whether it’s a doctor or a pharmacy or a parent, they’re going to be held to that reasonable person standard.

So again, I’m not that familiar with the New Hampshire case. If the allegation is that someone provided her with a substance several hours earlier, you know, it becomes a pretty intricate analysis whether that person —

STUDIO: Yeah, this is where it gets murky.

MR. BOWSER: I mean this person is, it’s a layperson, it’s not a doctor, it’s not a nurse. Whether it’s a parent or not, it depends.

STUDIO: 7:53 here on 980 WCAP, chatting with Attorney Mike Bowser, one of the — how many is it again? Five board certified?

MR. BOWSER: One of three board certified DUI defense specialist practicing in Massachusetts and one of only two licensed and practicing as a DUI defense specialists in New Hampshire.

STUDIO: Alright, so I’ve been joking this morning to all the listeners out there. I have not had three shots of tequila, because I knew I was going to take a field sobriety test with you. On a normal morning I would though, however. But let’s do the hypothetical. I have had a couple to drink and I have been pulled over. It’s nighttime now. I have — by the way, I have my french vanilla coffee and I’ve already chewed some gun. Does that play a factor into how I fair on either my blood test or my field sobriety test?

MR. BOWSER: The fact that you’re chewing gum does not factor into field sobriety testing, nor will it factor into breath testing or blood testing; however, I have had dozens of cases where the mere presence of gum or a cigarette will be alleged by a police officer to be an attempt to cover up the odor of an alcoholic beverage. So if you are chewing gum when you get pulled over late at night, the police will definitely take note of that.

STUDIO: Is that allowed as evidence?

MR. BOWSER: Well —

STUDIO: Because I chew gum all the time.

MR. BOWSER: They will often times take the position that if you have a cigarette or you are chewing gum, it is an attempt to cover up the odor of whatever you have consumed.

STUDIO: So what is the standard field sobriety test consist of? What are they doing nowadays? I’ve actually happened upon scenes driving home late at home all the time, and I see the folks who I instantly feel sorry for behind their car. What do they ask you to do? What are we talking about?

MR. BOWSER: A standard package of field sobriety testing — when I say standard — field sobriety testing, they are essentially roadside balance, coordination and direction following exercises. So you take yourself out of your vehicle at midnight, placed in a breakdown lane of Route 3, and you are asked to do a series of three different exams. The first one is called a horizontal gaze nystagmus test. And that is when you see the officer holding a stimulus, whether it’s his finger or his pen, before your eyes. Very much like you see the doctor do in the eye exam room or the emergency room. And that officer will track back and forth with a finger or pen asking you to follow the pen with your eyes and your eyes only. And what he or she is looking for is the involuntary horizontal movement or jerking of the eyeball as it tracks that stimulus. Because there is science behind that test that indicates that a person who is under the influence of alcohol or some other drugs, the presence of that nystagmus will be enhanced. Meaning everybody’s going to have some movement horizontally of the eyeball, literally jiggling of the eyeball. But the presence of alcohol enhances that nystagmus. That test in Massachusetts is inadmissible because the courts here have said, listen, if you want to talk about the neurological effects of alcohol upon the eyes and the nerves and the brain, you really should be a doctor. And so therefore they can conduct that test and they can use it in the field, but they cannot testify in court.

The other two are the standard, the walk and turn. Nine steps up the line, turn, nine steps back heel to toe. And then the last one is the infamous one-leg stand test.

STUDIO: I’ve yet to see any of these tests conducted, and they’re very rarely conducted in the daytime, usually it happens at night. So it’s dark, there are lights coming at you, coming from behind you from motor vehicles, and there are those flashing blue lights. Do those — I would imagine those can affect — especially the eye test. I would imagine those have an affect on it, do they?

MR. BOWSER: I just tried a case on — well the eye exam test, again, not admissible in Massachusetts. It can come in New Hampshire where I practice, and officers are trained to make sure that people are not looking either at passing traffic, because the mere presence of those lights on a highway as they zip by is definitely going to affect your eyes tracking ability. The flashing lights of the cruiser are suppose to be turned down in the front so that they’re not facing. But even when they are, the officers will often say, well I turned off the front facing blues. If you’re in a darkened roadway and the rear facing — but you’re still getting that strobe effect —

STUDIO: You can see the blues from a mile away.

MR. BOWSER: — off of every tree. And interestingly, almost every traffic stop is two cruisers with lights activated, not just one, because standard operating procedure for most departments, for officer safety reasons, traffic safety, is to call a second officer in to act as backup while the first officer conducts those field sobriety. So not only are you under the lights and scrutiny of one police officer in a marked cruiser, but often two.

STUDIO: And there are headlights on on the cruise and your vehicle as well, because it’s dark.

MR. BOWSER: Spotlight, take down lights, flashing lights, strobe lights. And then they will deactivate many of those lights, but still it makes for a very — I had testimony in a case this Tuesday. It makes for a very chaotic scene.

STUDIO: Alright, it’s 7:58 here on 980 WCAP. Austin, I’m going to ask you to do a little bit of play by play here and we’re going to override the ABC news because I know we’re going to bleed into it here, but Attorney Bowser is about to give me — and I promise I have not had any alcoholic beverages since that beer I had Saturday night after work. So my blood alcohol level should be zero.

MR. BOWSER: So why aren’t your glasses, your cups ever clear then?

STUDIO: Here’s my hunch though. I am going to fail the walking and turning test. I have terrible balance. So I’m going to step out from behind my microphone here and give this field sobriety test a shot as Austin gives you the play by play.

AUSTIN: There you go. He’s turned off the mic.

MR. BOWSER: And Teddy, I’m actually certified — I’m going to back you up and I’m going to give you this test exactly as it would be given in the field. I want you to stand right now with your right foot in front of your left foot on the line between the tiles here, the green tile, right foot in front of left foot. I do not want you to begin until I tell you to begin. Keep your arms down at your side. When I tell you to begin, I want you to walk in the following fashion heel to toe, one, two, three. When you get to your ninth step, you’re going to leave that left foot planted and you’re going to turn using three choppy steps, and then you’re going to come back in the same fashion heel to toe counting out loud.

AUSTIN: Teddy just fell.

MR. BOWSER: Do you understand the instructions as I’ve given them to you?

STUDIO: I think I do, but I’m going to fail them.

MR. BOWSER: Okay. Begin the test.

AUSTIN: So Teddy looks nervous.

STUDIO: One —

AUSTIN: And he’s walking.

STUDIO: — two, three, four.

AUSTIN: Can actually hear him in the background.

STUDIO: — five, six, seven —

AUSTIN: He’s running out of room, he’s taking big steps.

STUDIO: — eight, nine —

AUSTIN: I think he’s turning. He turned.

STUDIO: I almost just lost my balance.

AUSTIN: And he’s lumbering.

STUDIO: Two, three, four —

AUSTIN: See, watching Teddy from the other room, I would say he’s drunk.

STUDIO: — five, six, seven —

AUSTIN: He’s taking steps, he doesn’t look confident in his steps at all.

STUDIO: — eight, nine.

MR. BOWSER: Okay, now that is one of the standardized tests, and without getting into the other ones, I can tell you right now that you actually just failed —

STUDIO: I — I —

MR. BOWSER: — the standardized field sobriety test. And I’ll tell you why. That particular test has eight and only eight designated clues. An officer is trained that if you display two or more of those designated eight clues, that is indicative of impairment. The eight clues being did you maintain the instructional stance, heel to toe, which you did. Did you start too soon? You did not. Did you walk on line? You did. Did you touch heel to toe? You did. Did you stop while walking? Yes you did. That’s a failing grade. Did you raise your arms more than six inches away from your body? You did that on a number of occasions?

STUDIO: Yeah, so I wouldn’t fall over. That’s called maintaining — try telling that to the Flying Wallendas as they’re walking tightropes.

MR. BOWSER: And your turn, your turn was appropriate, and you did nine up and nine back, but you did raise your arms more than six inches away from your body, and you did stop while walking to regain your balance. Those two — so, and a police officer looking at you in the field as trained would determine that your performance of that test at 8:01 a.m. in the morning was indicative of impairment.

STUDIO: It was noticeable to me, and I said to myself, uh-oh as I did it. I took the ninth step, and then I tried to do that three jagged step turn around that you told me about, and I leaned to my right and had to raise my hands to keep my balance.

MR. BOWSER: Right.

STUDIO: Stone cold sober. I have not had a beer and that was just one beer on Saturday night. And I flunked a field sobriety test.

MR. BOWSER: Yeah, and you think of every Olympic games that you’ve ever watched with those world class have given that as an allowable maneuver. So you failed that test.

STUDIO: And I don’t want to advocate for, you know, allowing folks to drive drunk and to get away with things on quote/unquote technicalities. But I just witnessed myself stone cold sober, flunk a field sobriety test. That’s a test that I’m not sure anybody can pass on a consistent basis — maybe kids who have a better, maybe a little better sense of balance —

MR. BOWSER: That’s —

STUDIO: — can do that turn.

MR. BOWSER: And that in my opinion is the easier of the two physical tests. The other one being the one-leg stand. If you’ve got 30 seconds, we can try that.

STUDIO: I do.

MR. BOWSER: Next time. Or do you want to do it today?

STUDIO: Yeah, now what do I have to do on this one?

MR. BOWSER: I’m going to have you stand in that same position. Heel and feet — no, feet together, side by side, hands down by your side. When I ask you to begin, I want you to raise the foot of your choosing, either left or right. But I want you to raise it six inches off the ground so your heel is six inches off the ground, and I want you to point your toe forward. While looking at your toe, I want you to count in the following manner: one-one thousand; two-one thousand; three-one thousand. I want you to continue counting until I tell you to stop. If you have to put your foot down, just bring it back up again and start where you left off. Do you understand the instructions as I’ve given them —

STUDIO: Give them to me one more time. Please.

MR. BOWSER: Yes.

STUDIO: Do I have the right to ask that?

MR. BOWSER: Sure. When I ask you to begin, you’re going to keep your hands down by your side, you’re going to raise one foot off of the ground six inches, pointing the toe. You’re going to keep your foot in that position and you’re going to count in the following fashion; one-one thousand; two-one thousand, three-one thousand, until I tell you to stop. If your foot comes down, I want you to raise it back up and begin where you left off. Do you understand the instructions?

STUDIO: Now I do.

MR. BOWSER: You can begin the test.

STUDIO: One-one thousand; two-one thousand; three-one thousand; four-one thousand; five-one thousand —

AUSTIN: He’s counting.

STUDIO: — six-one thousand; seven-one thousand; eight one thousand, nine-one thousand; ten-one thousand —

AUSTIN: He’s actually doing pretty well. I’m not really seeing much stumbling going on. He’s laughing though. Counting up to 16. Oh, starting to see a little, little worry — stumbling a little bit, but he’s still straight. Teddy, you’re looking good. Don’t fall. That’s the breeze. Blow into the over — don’t laugh. You’re almost there.

MR. BOWSER: I’m going to stop you there because you’ve actually gone 30 seconds and it took you a little bit longer to count. So you’ve passed one.

STUDIO: Woo.

MR. BOWSER: Congratulations — and you —

STUDIO: But I did —

MR. BOWSER: — failed the other one.

STUDIO: — I feel my — I lifted my right foot so I could feel — but my left foot, after about five-one thousand, started doing a little wobbling.

MR. BOWSER: Right.

STUDIO: Again, you get me outdoors at night, lights flashing around me, maybe a breeze going. I might lose my balance, I assume that means I failed the test.

MR. BOWSER: Well the four, and the only four designated clues for that test are do you raise your arms away from your body; do you sway; do you hop on the planted foot; and then do you put your foot down. If you put your foot down more than three times, it’s considered a failure. If you display two or more of those clues; you raise your arms once, you put your

5 foot down once, you fail.

STUDIO: Okay. So I’ve had two beers after work. I get pulled over because I sneezed and swerved, whatever the case may be. And I know that I fail this test stone cold sober, the second one. I know that — I just failed it now, stone cold sober. So I know I’m not going to do well when the officer administers it at 1:30 in the morning. Do I have the legal right to refuse to take those field sobriety tests and the blood test?

MR. BOWSER: In both Massachusetts and New Hampshire, you absolutely have the right to refuse field sobriety tests and blood alcohol breath testing.

STUDIO: But automatically that means suspension of my license.

MR. BOWSER: There is a huge consequence. Now if you refuse field sobriety testing, there’s no legal administrative consequence against your driver’s license. You can tell an officer I would rather not participate in field sobriety testing.

STUDIO: Just like that, use those exact words?

MR. BOWSER: No thank you. And he’s going to say what? And you’re going to say, well my lawyer never to take field sobriety tests. And then that officer is going to have to make a decision. Does he have enough then and there to put you in custody or not. Because you cannot be forced to take those tests and you don’t have to. There’s no consequence to that decision necessarily. But if you’re asked to take a breath or a blood test after your arrest, there is a consequence of a loss of license. And depending on what your prior record is if any, it can be anywhere from 180 day loss of license first time around to a three year loss, a five year loss or even a lifetime loss under Melanie’s law if you have prior offenses. New Hampshire it’s 180 days for a refusal first time around. Two years for a refusal of breath or blood testing if you have a prior within the last ten.

STUDIO: How — so I refuse to take it. I show up in court with you by my side. Do I lose my license until I can prove myself guilty in the trial? Or do I get what every other person gets, innocent until proven guilty?

MR. BOWSER: You — that’s called a chem test refusal suspension. It’s administrative because it comes at you through the Registry. And the only way to eliminate a chem test refusal suspension in Massachusetts or to get through it is either to plead out on a first offense so that you can obtain a hardship license; or go to trial and be ultimately acquitted. If you’re found not guilty, then you’re entitled to ask the judge for an immediate hearing to determine whether your license can be reinstated and, you know, that’s what I do on every case where there’s a chem test refusal still in effect. Upon the not guilty finding, I ask for that hearing and the burden shifts to the Government, the Commonwealth, they must prove that you are a public safety risk.

And I’ve certainly had cases where it’s third, fourth, fifth offenses with a refusal where I’ve gotten the acquittal, and the judge sitting in the particular court has said no, I’m not giving him his license back. So I’ve had that as well.

STUDIO: How much time from the moment I’m pulled over and I refuse to take that field sobriety and blood test. I assume the next morning in court is when your license gets pulled?

MR. BOWSER: Your license, if you refuse a breath test or if you take a breath test with a result over, in Massachusetts you’re revoked immediately.

STUDIO: Immediately.

MR. BOWSER: They notify the Registry by way of that breath test machine, it’s hard wired to the Registry. They take your license, they give you notice of suspension. In New Hampshire, your privilege or your license is revoked effective 30 days after your arrest.

STUDIO: And how long is the process for me to get my fair trial like everybody else. And if I’m acquitted and luckily, I can, the judge — it’s my first offense and the judge says, okay you’ve got your license back. What are we talking? Six weeks? Six months?

MR. BOWSER: Well that depends really on the form and venue. By way of example, I had a trial in Ayer on Tuesday and we were almost 12 months removed from the date of arrest. I’ve had trials in that court that have been close to two years. It really depends on the resources of the particular court. Some courts have one judge. Concord for instance has one judge, and they only run a trial session on two days a week. Ayer is the same thing. Woburn tends to be 12 months or more. Lowell and Lawrence, some of these busier courts, it can be well over a year. And then there are other courts, you know, if you really move it, you can get a trial date within usually four to six months is the earliest. So it’s a long process.

STUDIO: And lastly, because I don’t want to paint or give the perception, and I don’t want anyone to think I have the perception that police officers are just looking for innocent sober people to pull over and get —. The officer pulls me over, like I said, I sneeze or I make the mistake of looking down at my phone which I’m not going to admit to him. But I swerve, so he pulls me over. If I reason with the person. Unless I’m absolutely — Officer, I have not had a drink, I just got out of work and I’m just going home. I swear to you, I haven’t had a drink in five days. If the officers — do the officers kind of, do they see that I’m talking normally, I’m acting normally.

MR. BOWSER: They do.

STUDIO: They’re going to let me go, right?

MR. BOWSER: Yeah.

STUDIO: They’re not looking to pull over —

MR. BOWSER: They’re — no. No. Their job — I mean police officers — people look at me all the time and say, gee you must hate cops. I’m like no, quite the opposite, I have a lot of respect for them and what they do. Their job is to take anybody off the street who they believe is unsafe. And they’re operating on a probable cause standard. And the difference between probable cause to arrest and proof beyond a reasonable doubt is enormous. And I bring that to the attention of juries all the time. Their job is to take you off the street. If they feel that you’re unsafe, they should be making an arrest, taking you off the street. And then in court later, if it doesn’t amount to proof beyond a reasonable doubt, so be it, there’s an acquittal, there’s a not-guilty, the system has worked the way it’s designed to work.

And many officers, like you said, if you’re engaging them in a conversation and they don’t think that you’re impaired, there’s plenty of police officers out there that do that each and every day. They make tons of motor vehicle stops, they interact with lots of people that have had something to drink, and they make a determination that they’re okay and they’re safe to drive and they let them go. Happens every day.

STUDIO: I haven’t paid the retainer yet, but as my attorney seeing what you’ve seen this morning, if I were to ever get pulled over, would you advise me to take a field sobriety test?

MR. BOWSER: My advice to anybody —

STUDIO: Even if I’m stone cold sober.

MR. BOWSER: My advice to anybody is because they are so subjective and they are so difficult to do perfectly, police, the only — field sobriety testing — field sobriety tests in general are routine rote familiar activities for one group of people and one group of people only. Police officers. Because they see them and they use them and they demonstrate them day in and day out.

To Joe public who’s never seen them, never been through it and you put him in that circumstance of side of the road, two in the morning, under the lights with the traffic in the background and the wife in the passenger seat, I would advise people don’t take them. They’re very difficult to pass, they’re very subjective, and I don’t truly believe that they relate to your ability to operate a motor vehicle safely. I can drive safely, I can’t do a one-legged stand myself. Period. I can’t do it.

STUDIO: And I know my mother and father would not be able to do that test.

MR. BOWSER: Exactly.

STUDIO: And — Attorney Bowser — folks, as we like to say, we pray that folks don’t need your services, but if they ever do need them, you have officers in Chelmsford and in New Hampshire. How can people get a hold of you?

MR. BOWSER: Office in Nashua, office in Chelmsford. Best way to get a hold of me is probably through the website which is www.bowserlaw.com.

STUDIO: And you can always hear Attorney Mike Bowser Thursday mornings with us as a member of our Expert Network, here on 980, WCAP. Thanks so much for the eye opening experience.

MR. BOWSER: Great day, Teddy, thank you.

Expert Network Interview of Attorney Michael Bowser August 22, 2013

STUDIO: Right now we want to bring in a member of our Expert Network. We chat with him on Thursdays about his speciality which is the law. And in particular how the law pertains to operating under the influence and other motor vehicle infractions. Attorney Michael Bowser joining us in studios. Good morning, Counselor, how are you today?

MR. BOWSER: Good morning, Teddy, nice to see you.

STUDIO: Good to see you as well. How are things? We haven’t touched base in a little while. You’re a busy man. Is that a good thing or a bad thing in your specialty?

MR. BOWSER: It’s a good thing, I’ve had a very, very busy summer. I was three days at Harvard Law School for the National DUI Defense Colleges Summer Meeting, and it’s nice because Harvard Law School allows us to use their campus. So I was down there for three days. And I just got back from Chicago where I took a gas chromatography course, and gas chromatography is the technology by which all the state laboratories test blood alcohol samples. So I was there for about ten hours a day picking apart the machine, learning how it works, learning how to better defend those that are accused with state lab results. Just go back about 3:00 in the morning on Monday, so been busy. And I missed a couple Thursdays due to some other matters, but it’s nice to be back.

STUDIO: In your field, sometimes things crop up at the last minute. Remind folks who haven’t caught you before — you are a certified DUI specialist. There aren’t many of you in the United States and there certainly aren’t — I think there is only one other in the area here, and you have offices in Chelmsford and Nashua, is that correct?

MR. BOWSER: I have offices in Nashua, one in Chelmsford. Been practicing 17 years. I’m one of — the number is now up to about 60, one of only 60 board certified DUI defense lawyers practicing in the United States. There are three of us in the Commonwealth and I’m one of only, excuse me, two practicing in the State of New Hampshire.

STUDIO: Let’s start with a couple of cases that have been in the news. First of all, you mentioned that — I’m forgetting the name of it — gas chronomina, did I remember 16 it?

MR. BOWSER: Gas chromatography.

STUDIO: Gas chromatography. You talked about the Massachusetts State Crime Lab. It’s an instrument or tool they use. Remind me, we found out yesterday that there might be 40,000 cases affected by the Annie Dookhan scandal there.

MR. BOWSER: Yes.

STUDIO: The woman who apparently tainted or forged evidence helping to convict folks. Are there some DUI cases that might be involved there?

MR. BOWSER: Out of that lab, not that I’m aware of, and as far as blood alcohol or breath alcohol testing in Massachusetts, I’m not aware of any of those issues; however, there have been problems in the State of Pennsylvania, the State of Texas where results and calibration results of breath testing devices have been falsified, or dry results where they’re writing in the results of calibrations.

STUDIO: That’s what I —

MR. BOWSER: But calibrations never took place. That has absolutely happened in other jurisdictions. I am not aware of that happening in Mass or New Hampshire.

STUDIO: That’s what I wanted to ask, I mean we all assume that everybody is being honest in our justice system. That’s why we — that’s why we put our hand on the Bible and you know, make the oath there to tell the truth, the whole truth and nothing but the truth so help us God. Annie Dookhan showed that, you know, a bad intentioned person can throw that entire system in disarray. How reliable, how much should we trust? As somebody who regularly fights, you know, these agencies and these types of law enforcements, how much faith can we put that Annie Dookhan is just a lone wolf and there might — and that there aren’t any others out there that might be doing the same thing, tainting evidence?

MR. BOWSER: Well I don’t think it’s a matter of whether there’s a bad person or a bad apple within a laboratory that may be doing something egregious or illegal as falsifying results. But you cannot ever take at face value any laboratory result. That’s what I was really enlightened by in the Chicago course that I took. It’s kind of like pulling back the curtain and seeing the little man behind the curtain. When you really know what is going on in the laboratory and how these results are created 95% of all laboratory error is a result of human error as opposed to the device itself or the technology itself. There’s a human being behind every test, and human beings as we all know are fallible. Whether intentionally so or negligently so. So you cannot take any laboratory result, whether it be a breath test, a blood test, a drug analysis at face value without looking critically at the person, the procedure, the process, the laboratory.

STUDIO: Well you said 95% is human error. That leaves 5% for scientific or machine error. How do you prove that? If you’re a defendant, you’re up against the State and generally I would assume juries, you know, we’re so use to watching CSI and we take that all of the science is exact and perfect. I would assume a jury kind of looks at it the same way. How do you fight that if you’re a defendant, and not just in a OUI case but in really in any case, where there is supposedly this rock solid scientific evidence against you.

MR. BOWSER: Well what I find fascinating is that these devices and these machines, by way of an example, the breath test device in Massachusetts, the Draeger 9510, they pull that out of a box from the manufacturer. And when that machine comes out of the box, it is like a newborn baby. It doesn’t know anything, and they have to calibrate it and they have to tell it what are the results that we’re looking at. And that’s a process done by human beings and they’re calibrating this device and telling this device at what level they should be looking for certain results. If that calibration is done incorrectly, that machine is deaf, dumb and blind for the rest of its time on line.

So at the very outset, beginning with the calibration of the device, whether it be a gas chromatograph or a breath testing device, you have to look at it from the very beginning and that has to be done correctly. So human error, yes. Is there machine error? Absolutely.

STUDIO: Mr. Bowser, about the results and this 95% factor, how can these things be eliminated? How can we improve the system for an accurate reading for, for prosecution, not just defense?

MR. BOWSER: Well the 95%, I’m not saying 95% of tests are wrong, I’m just saying the potential error, 95% of that potential error lies within human mistakes. You need to defend yourself. You need to look at any piece of evidence, whether it’s a drug case or a drunk driving case, critically, and not take it face value the results that are handed to you, because generally it’s a right of confrontation. Generally you’re given a piece of paper from a laboratory, and they saythe results are a point 08 breath test or a point 08 blood test, or this substance is in fact cocaine.

If you were to accept at face value that statement without confronting the witness and the technology behind it, then you’re going to get run over. So the way that you fight it and try to insure integrity and accuracy is you put them to their burden, which is proof beyond a reasonable doubt. You make them prove the accuracy of the results, because the burden is not on the defense to prove that technology correct.

STUDIO: This is correct.

MR. BOWSER: The burden is on the government to come forward with valid test results. And my job is to make sure that that validity is brought into a courtroom.

STUDIO: Shouldn’t the society’s role collectively, everybody’s entitled to a defense, but to give some equity to the public, to the people, the taxpayers, how can we improve the entire system?

MR. BOWSER: The system —

STUDIO: To eliminate these kind of problems, get rid of them?

MR. BOWSER: The system is, you know, somebody found out about Annie Dookhan. So, and I would imagine that was through the process of an adversarial criminal prosecution. And I’m not, I’m not intimately familiar with that case. Most of her cases seemed to have infected Suffolk County, Norfolk County, they’ve certainly touched upon Worcester and Middlesex, but they’re actually running special sessions of courts in those jurisdictions and those counties — they call them Dookhan sessions — where just her cases that are being brought back before the court, people that have been sentenced, people that have cases pending.

So it came out through that adversarial process. As a taxpayer, you’re paying for this laboratory, you’re paying for these results, and I think in general most of the folks working at these laboratories are doing a great job and they’re over burdened and they’re over worked and they do the best they can, and I think she’s an example of the extreme.

STUDIO: As we talk about the science behind it, to me it highlights the need, if you ever are in one of these situations, to find an attorney that specializes in this. And I don’t want to demean other attorneys because I’m sure, you know, any attorney can practice a case; however, you via your training and talking about coming out of, you know, the Harvard Law School and that special program that you participated in, being one of only a handful in the area here, one of only 60 in all of America, I would guess you really have a grasp of the science behind this because it is your specialty.

MR. BOWSER: And I want to be very clear, the program that I intended, it’s the National DUI Defense College. We are hosted, the Harvard Law School allows us to use their facility and their campus. It’s not affiliated in any way with Harvard Law School. I didn’t go to an ivy league school.

But yes, I mean I tell people all the time, you know, a lawyer can be an electrician, a plumber, a carpenter, just like a doctor can be a podiatrist, a brain surgeon, a cardiologist. You know, my specialty and where my expertise lies is DUI defense and the technology that goes behind the testing involved in those cases.

STUDIO: We’re fast approaching the eight o’clock hour here on Merrimack Valley Radio. I’m going to override the ABC news for a quick second because we’re talking to Attorney Michael Bowser, a member of our Expert Network and a certified DUI specialist here, because there was a story in the news that I just wanted to kind of get your thoughts on, and also to I think use it to highlight some of the dangers and the importance of, you know, being careful with what you’re doing when you’re out having a dinner with some wine or having a few drinks or whatever.

The recent case involved the off-duty Lowell Police Officer who was killed in an automobile accident with another gentleman who was alleged to have run a stop sign. Both were legally over the limit for being intoxicated while operating a motor vehicle.

How do you determine fault when — I guess it’s easy when somebody is sober, hasn’t had a drink, and somebody goes above the limit. I guess that’s easy for law enforcement and for the courts to determine. What about when both of them are over the limit. Is the one who is the most over the limit? How do you assign blame in a case like this?

MR. BOWSER: Well the law is blind as far as impairment goes in the sense I’ve had several cases where my client was rear ended or my client was hit by someone at a stop sign or my client was involved in an accident where they’re clearly, legally they’re not at fault for the accident, but they themselves have been alleged to have been impaired and the other driver as well sometimes. So that happens. That case, the issue in that case was whether the Defendant represented by Attorney Oberhauser, by way of example Gregory Oberhauser is the only other lawyer in the Commonwealth that has taken that gas chromatography course that I just completed. So he’s well versed with the blood test that was involved in that case. He was convicted of the misdemeanor version of that offense, which means he was under the influence and he caused the death. Whereas the felony version which he was not convicted of, requires proof that he was under influence and reckless or negligent and caused the death.

So I believe the finding from that jury was he was under the influence, he did cause the death, but he was not negligent or reckless.

STUDIO: That’s the part of the verdict I didn’t understand. How are you — how are you guilty but you’re not reckless or negligent. I mean if he’s guilty, he’s running the stop sign and drinking, oh he’s over the limit.

MR. BOWSER: Right.

STUDIO: Which apparently the jury bought but — so how do they find him not guilty of the recklessness.

MR. BOWSER: Well I just had — I had a verdict this week and the issue was an OUI charge and a negligent operation charge. The allegation was my client was driving the wrong way on a highway towards a cruiser, so obviously there’s some evidence of negligence. And you would think being OUI, being under the influence in and of itself is negligence. So in my mind those two charges should be merged or combined and you shouldn’t have both, because if you’re convicted of being OUI, I think that in and of itself is evidence of negligence. But he misdemeanor version of that charge requires proof of one or the other, whereas the felony version of that charge requires proof of both the OUI and the reckless or negligent conduct, so.

STUDIO: Does it make a difference what that number comes in? For instance, the gentleman that was convicted in this case was a point 09. The legal limit is point 08. But he was right on that border. Does that make a difference in terms of how the law is applied? If he was a point 19, would he have been more severely charged and perhaps more severely convicted?

MR. BOWSER: Massachusetts does not have an aggravated DUI or DWI charge where the State of New Hampshire where I practice does. In New Hampshire, if you are a point 16 or higher, which is twice the legal limit, that’s an aggravating factor, that’s an automatic jail sentence, that’s up to an 18 month loss of license with an automatic interlock device. Massachusetts doesn’t have an aggravated DUI based on the number itself. So you could be a point 21, a point 24, a point 18 as a first offense, that’s still just a first offense. So the evidence in that case I believe was a point 09 and I’m sure that was — I know for a fact that that number was hotly contested, especially given it’s proximity to a point 08 and it’s proximity to the time of driving. Because blood alcohol content is a moving target. It goes up, it peaks, it goes down and it’s bell, what they call a Gaussian curve or a bell curve, and where you fall on that bell curve peak on the, you know, elimination absorption, those are the issues that have to be brought to the attention of the jury. Because I could be a point 08 or a point 09 right now and in an hour and a half from now I might be a point 06 or vice versa so.

STUDIO: I’ve been told a point 09 for somebody small, and it appears from physical, looking at photos and video of this person, he was a very small person in stature, point 09 could be something as simple as a two beers in a half hour. Is that accurate?

MR. BOWSER: Given your weight and there’s a difference in a fluctuation between male and female due to the water content of their bodies and the muscle mass. So weight, sex, consumption over what period of time and food, all of those things factor in as to whether or not — and the other thing that people don’t realize is you, you could be impaired, a person can be impaired at a point 05 or a point 06. You know, the point 08 is a number that we’ve established as a legal limit of impairment. There are folks that are probably impaired at a point 05 and quite frankly there are people walking around at a point 15 that you wouldn’t know they’ve had anything to drink, so it goes both ways.

STUDIO: And that highlights the importance of if you ever are in one of these situations as we always say, hopefully you never end up in one of these situations. If you are, it is important to get expert help, expert advice and that’s where you come in, Attorney Michael Bowser, a member of our Expert Network. How can folks get in touch with you if they ever are in need of your services, Sir?

MR. BOWSER: Offices in Nashua and in Chelmsford. It’s 256-2700 in Chelmsford and the website is quite frankly the, probably the best source of information regarding my practice. It’s www.bowserlaw.com.

STUDIO: Attorney Michael Bowser. Thank you so much for joining us this morning. We’ll chat again in a few weeks.

MR. BOWSER: Thank you.

DUI Radio – Interview 5-23-13

STUDIO: Right now we want to bring in a member of our Expert Network. Attorney Michael Bowser joining us in studios.

Good morning, Counselor. How are you?

MR. BOWSER: Good morning, Teddy. How are you?

STUDIO: I’m doing fantastic. Good to have you here.

MR. BOWSER: Thanks for having me. Sorry. Running late. We missed a bus this morning and I also had to make the turkey and cheese sandwiches. So I’m running a little bit behind today.

STUDIO: Turkey and cheese. Is that what your — is that what your office is eating or your kids?

MR. BOWSER: That’s the staple diet of my two children in school every day.

STUDIO: Every day. Hey, as long as they’re eating something somewhat healthy, that’s not too, too bad. You’ve been a busy man. We haven’t chatted with you in a few weeks and that’s because your court docket, very, very full. You have had nine trials, nine DUI trials in the last ten days.

MR. BOWSER: Well, the reason you didn’t see me for a few weeks is everything seemed to stack up earlier this month.

Last week I ended up trying — impaneling a jury and trying a personal injury case, a car collision/crash case in New Hampshire. We picked the jury on Monday. We tried the case Wednesday, Thursday, deliberations into Friday.

In the two weeks prior to that I had nine DUI defense cases scheduled in ten days. Five of those ended up actually being reached for trial. One was a bench trial; the other four were jury trials. So I was on quite a tear there for a few weeks there. I finally got a break and I think I actually have Friday off and Monday off coming up.

STUDIO: Lucky you. Now, is that unusual to have five out of nine cases go to a jury? I was under the impression — I think a lot of people in the general public are — that attorneys and prosecutors and whoever’s involved, they generally try to reach some kind of a settlement. They don’t want it to go to trial, and they — they certainly don’t want it to go to a jury. It almost seems like where your specialty is in OUI offenses, you — you want it to go to a jury, don’t you?

MR. BOWSER: Well, when I meet with potential clients, I tell them right up front, if they’re interested in resolving a case by way of a plea or an admission — most people that are charged with a drunk driving offense, it’s their first offense. And when they walk into a courtroom, they’re going to receive from the Court and the Prosecution the minimum mandatory penalties. And I tell people if that’s what you’re interested in doing, certainly you can do that with pretty much any lawyer that you chose, and you can certainly make those decisions based on price.

If you’re going to hire me, generally it is because you want to go to trial. You are interested in defending yourself to the full extent of the law, which means you’re going to have a bench trial or a jury trial and you’re looking for that verdict and hopefully the verdict is a not guilty.

STUDIO: Your other case that you were talking about was a — a battle from an accident with an insurance company of the — the — the guilty person in the — in the accident. The person who caused the accident, the insurance company was trying to shortchange your client.

This is pretty standard. And I think I speak for pretty much everybody out there listening, that insurance companies, the big insurance companies, they will try everything they can, make you jump through hoops, paperwork, deny you when you first file your claim, they will do anything they can not to pay. And then when they — even when they have to pay, they will do whatever they can to not give you what you fairly deserve. Is that an accurate assessment or am I — am I mischaracterizing, you know, the big insurance companies out there?

MR. BOWSER: No. And I can — it’s extremely accurate and I can tie it into one of your earlier callers who I was listening to as I drove in. He was mentioning the prevalence of insurance fraud as it once existed in Lowell and in Lawrence. And I don’t see that as I used to many years ago. But that permeates — that thought pattern permeates the jury pool.

So if you have a very deserving person like I did last week — I had a young lady that was rear-ended in broad daylight. There was damage to the other vehicle. There wasn’t a lot of damage to the rear end of hers. So the insurance company for the other driver, of course, ran out four days later and took pictures of her rear end of her vehicle to show how little damage there was. I had to call the body shop guy in to explain that the trunk panel underneath had actually collapsed, but you couldn’t see it in the photo. And their — their take is, listen, she doesn’t look hurt. Her car isn’t that damaged. She can’t be hurt.

And when you pick a jury, they’re not told that there’s an insurance company. That’s inadmissible. And you have to get a unanimous verdict of 12 people to agree on liability, injury, damages. And it’s very difficult, and most of the large insurance companies, if not all of them, will force you to try that case to recover.

In that particular case we were offered in the neighborhood of about 8 or 9 thousand dollars, which barely covered her out-of-pocket medical expenses. And after four days of trial, we got a verdict from a jury of $35,000. And I had to fight three years to get that type of recovery, and they make it very hard and very difficult.

So if you are seriously hurt and you need to make that recovery, you have to hire a lawyer that can try that case because they will force you to trial in order to recover.

STUDIO: And I think what happens sometimes is — I know because my parents have gotten into some very serious accidents where they were rear-ended. And you know, initially you’re still — you know, the adrenaline’s kind of going and you — you know, they come out and the police will show up and sometimes they’ll even bring an ambulance and — and people just kind of say, no. No. I — you know, I — well, you know, I — I feel a little something in my shoulder — in my mom’s case it was her elbow and — but I’m okay. And you know, you just kind of go home and — it doesn’t really hit you till two or — or three days later.

You really have to be careful as somebody involved in one of these accidents with what you say and what you do in the immediate aftermath of that accident in front of, you know, witnesses, officers –

MR. BOWSER: Uh-huh.

STUDIO: — and you also have to make sure that if — you know, to get the officers there to get this documented, because once it becomes your word against theirs, and if there’s no — you know, no officer there to determine or place blame, you know, that’s what the insurance companies are looking for, aren’t they?

MR. BOWSER: Well, what they — in my case they — exactly. The young lady was rear-ended. She was hurt.

Initially she felt dazed. She saw stars. She felt hot all over. She got hit right down the street from her house. Her dad came up to the scene. They don’t have insurance. And when the police responded and she wasn’t bleeding, she didn’t appear to be physically harmed, they said, do you want the ambulance? And the father said, no, we’ll — I’ll take her. Because he knows what an ambulance costs.

STUDIO: Right.

MR. BOWSER: Believe me. At trial three years later, they were harping — the insurance defense lawyer was pointing out to that jury, and he couldn’t say it enough, that the police report said number of injured, zero. Refused transport by ambulance. And they play on that.

Now, I tell people, listen, I’m not a doctor. I’m a lawyer. You go and get whatever medical treatment is necessary for you to get well, and I’ll play with, you know, the facts that are given to me. If you don’t take the ambulance, if you don’t say you’re injured, it is what it is.

But if you are hurt, you do need to follow up and make sure you get the treatment that you need because the insurance industry will look at that record and say, you did not seek medical treatment when you really needed it. Therefore, you are not injured.

STUDIO: It’s also important to make sure that you take all the information from the other driver. You know, registration, license. And especially insurance information.

I know a lot of times — I’ve actually had people tell me, you know, I got hit by so-and-so. It happened to our former news director, Kim Saltmarsh. She got rear-ended on Route 93 and the person said, you know, I’ll give you, you know, a thousand dollars cash. Don’t report this. And, you know — I mean, that again, long term, that comes back to bite you.

MR. BOWSER: You absolutely want to get correct information. ID of the driver, the vehicle registration and most importantly, who is their insurance carrier. Because even if they don’t report it to their carrier, you’re going to report it to that carrier. So — and that’s the benefit of — if the police do respond, they are going to generate a report. They are going to gather that information for you.

STUDIO: 8:23 here on 980 WCAP. We’re chatting with Attorney Mike Bowser. His specialty is OUI cases. You have offices in Chelmsford and in Nashua, correct?

MR. BOWSER: Nashua. And actually I’m off to the Seabrook District Court today on a DWI matter from New Hampshire. I’ve been practicing in both states for 17 years and I’ve maintained the office in Nashua as well for that time period.

STUDIO: And you’re certified in both states, correct?

MR. BOWSER: Licensed, yes.

STUDIO: Licensed, I’m sorry.

MR. BOWSER: Took the Bar exam way back when in New Hampshire and Massachusetts. Licensed in both states and Board Certified as a DUI Defense Specialist.

STUDIO: And as we’ve found out from some of your previous visits, that is very important. The laws in each state are different and they could affect your driving record and your insurance in your state. You know, a lot of us go back and forth between New Hampshire and Massachusetts. Very, very important to — to make sure that you are fully aware of the implications of any type of charge, arrest or whatnot in — in one state and what it could mean for you long term.

MR. BOWSER: By way of example, within the last two days I’ve had conversations with a Massachusetts resident with a drunk driving matter in New York State. I’ve got cases all the time with Massachusetts people with DUI charges in New Hampshire and vice-versa, New Hampshire people with charges here in Mass. Yeah. Historically these things matter and they count and they stay on your driver’s history forever.

STUDIO: Been a lot of things in the news regarding your specialty the last few weeks. Let me start first. The one that really screamed out and grabbed headlines. The Billerica gentleman arrested for his 12th OUI. Let me ask. How do you defend a case like that, somebody who’s now been picked up for his twelfth time? Can you — can you even defend that? I know it’s –

MR. BOWSER: I have.

STUDIO: — your skill. I know it’s your expertise. You have — oh, you have had –

MR. BOWSER: I’ve had — I’ve had numerous cases where my client is charged with what may be his fifth, sixth, I’ve had — actually had an 11th lifetime.

The maximum that you can be charged with under the law in Massachusetts is five. You know, fifth or subsequent is basically as high as the law goes. So if it’s your eighth, ninth or tenth, you’re going to be charged as an OUI fifth offense. They will look back over your lifetime and they will pick up every prior DUI that you’ve had going back to the ‘70s, the ‘80s, the ‘90s.

And the case — the gentleman in Billerica, my understanding is he did not have a valid driver’s license at the time. So he’s obviously driving around without a license, having already been revoked for his lifetime. And the question becomes, well how do you stop that? Because, you know, literally who’s there to stop him from getting behind the wheel, putting the key in the ignition and going? As far as the law goes, he — he had been revoked lifetime, which he should have been.

But, you know, can you defend those cases? When those cases go to court, what’s interesting is the — in Massachusetts and in New Hampshire, if you go before a jury on an OUI subsequent offense, whether it be second, third, fourth or 11th, the jury is not told that it’s your second, third, fourth or 11th. They’re told that it’s just an OUI because that evidence of a prior record is prejudicial to the point where it’s not relevant. It’s only going to poison the jury if they heard that you had three prior convictions. You’re probably not going to get a fair shake in front of that jury on that fourth.

And then they — what they do what’s called a bifurcated trial. You try the underlying OUI offense — excuse me. You try the underlying OUI offense to the jury. If you are convicted, you then are entitled to a second trial to determine whether it is, in fact, your second, third or fourth, whatever that may be.

STUDIO: So in terms of — let’s say somebody’s convicted — and you said that there really is no difference, it’s always the first trial when you stand trial. But in the penalty phase it does matter which one it is. Can you ever get a clean record?

Let’s say you’ve been convicted of three and you’ve gone a decade and then all of a sudden you get picked up for your fourth. Is it — is it ever kind of like insurance where, you know, if you — if you’ve been a good driver for so long, you get — you get a break, or no? These OUIs are there forever and every time you get caught, if it happens, you’re going to pay the price for it.

MR. BOWSER: In New Hampshire where I practice, they do have a ten-year look-back. So after ten years, if you pick up another one, you’re going to be treated as a first offender.

However, Massachusetts has a lifetime look-back. So regardless of whether your last one was 10 or 15 years ago, if you have a couple back in the ‘70s or in the ‘80s and 30 years later you pick up another one, you’re going to be charged as a third offender. So there is no grace period, there is no waiver period in Massachusetts.

For purposes of insurance, there is. But for purposes of a criminal prosecution based on a new OUI arrest, it’s a lifetime look-back and that stuff does not go away. It is there forever for purposes of your next one if there is one.

STUDIO: As we’ve talked about this 12-time offender in Billerica, you mentioned you had somebody who had an 11th offense that you had dealt with. How do you approach that case as a — as an attorney but also as a — as a citizen, as somebody who — do you try to, you know, work with this person and help if there’s a problem or is your job simply, you know, you’re there to defend him? Everybody has a Constitutional right to a defense and an attorney and — and that is your job?

MR. BOWSER: My role as I see it, and I will explain this to clients, potential clients, when I meet them, is I’m in the protection business. So my job is to protect my client and his or her rights and their interests. It’s somebody else’s job to prosecute them. It’s certainly someone else’s job to sentence them if they are convicted. That would be the judge and the prosecutor.

So the way that I do my job and the way that I kind of wrap my head and my heart around what I do is I look at that person, I say, my job is to protect you. And then whatever that may entail, referring them for help if they need it, helping them find other professionals that could help them in their lives outside of the courtroom, I will certainly do that. But I view my role, quite simply, straightforward, my job is to protect you, and that’s how I do it.

STUDIO: And I think it’s important to note, because a lot of folks will say, how can you do that? And ’ve had that discussion with defense attorneys who are defending child molesters, with, you know, sometimes murderers, and I — and I say, how can you do it?

And they say, look, the system was intentionally set up — and it’s the best system in the world — it was set up for that. It’s supposed to you know, you’re supposed to have a fair shake, a fair fight. And they — they always say to me,don’t feel sorry for the — for the prosecuting side, ever.

They have all the resources they need.

Usually it’s the defendant in — no matter what type of case it is, whether it’s an OUI, a murder case or whatever, it’s usually the defendant that has a hard time getting the resources to match an equal defense. They’re not all O.J. Simpsons. All your clients don’t have O.J.’s money, right?

MR. BOWSER: No. And, you know, to those that have no money, certainly they’re going to receive a court-appointed lawyer or the Public Defender’s Office, the Committee for Public Counsel Services, and there are some wonderful, great lawyers doing that type of work, and thankfully they’re there to do it. Because everybody is entitled to a defense regardless of their resources, their background, their prior history.

I heard — I actually said to a group last weekend, you know, a jury is the most powerful group a person can belong to, and that’s why most countries don’t have them. And we’re — we’re very lucky and we’re very fortunate in this country to have that jury trial system.

STUDIO: Lastly, there’s been some talk nationally of reducing the legal limit from a .08 percent — now, I remember when they took it down from a .10 to a .08, and that was very contentious. They’re talking about now taking it down to a .05.

In some cases, for some lighter people, that’s as simple as two glasses of wine or two beers. I find it fascinating that even Mothers Against Drunk Driving, which really kind of got the ball rolling in the ‘70s and ‘80s on calling attention to these operating under the influence cases and really starting to crack down, I found it very telling that even they were against this proposal.

MR. BOWSER: They did not come out in support of it. I believe it was a recommendation from National Highway Traffic Safety Administration that at a .05 there is evidence and there is some research and studies that show that people can be impaired at that level.

It creates such a low threshold for so many people, and to enforce it, I think you would literally shut down the hospitality industry. The tavern, the bar on the corner, the restaurant, the 99, you know, the hotel. It would be — it would create such a low threshold in the enforcement, it would be outrageous if you would be pulling over people, arresting them and charging them at a .05.

You can just think of the ripple effect of that. Then what happens to the legal liability? Because now when you were concerned about over-serving someone to a .08 or greater, now you’re concerned about over-serving someone to a .05. It creates a real problem. It goes across the industry into the restaurants, into the bars, into the hotels.

STUDIO: It’s 8:32 here on 980 WCAP, chatting with Attorney Mike Bowser, a member of our Expert Network. We’ve run out of time. And one of these weeks we’re going to get to the breathalyzer test itself because there’s so much legal wrangling back and forth about how accurate it is, how fair it is, when and how it should be administered and when and how you should take it. We promise, we’ll get to that one of these weeks.

But before we let you go, please give everybody the contact information. If folks are ever in need of your services — and we like to say that we — we pray that people don’t have to — to come to you. I know I don’t want to take money out of your — you know, your kids — they’re already relegated to turkey and cheese sandwiches, but if they ever do need your services, what’s the best way to get in touch with you?

MR. BOWSER: The phone number in Chelmsford is 978-256-2700. And the best way to learn about myself, my practice, my firm is the website, which is www.bowserlaw.com.

STUDIO: Attorney Mike Bowser, member of our Expert Network, joining us this morning on 980 WCAP.

DUI Radio – Mike Bowser interview 4-22-13

STUDIO: We want to bring in our next guest. He is a member of our Expert Network, Lowell’s Attorney, Mike Bowser.

Good morning, Counselor, how are you?

MR. BOWSER: Good Morning, Teddy, how are you doing?

STUDIO: I’m doing very well. Good to have you here.

MR. BOWSER: Good to be here.

STUDIO: Very timely visit on your part for — for a number of reasons. You wanted to talk a little bit this week about Miranda Rights and how they — how they apply in cases of DUI, driving under the influence cases. Ironically, a couple of very high profile arrests over the weekend. Al Michaels, the NBC sports announcer. Of course, he was the — the play-by-play announcer during the Olympics, he made that miracle on ice call. “Do you believe in miracles?” Yes. He was arrested for operating under the influence over the weekend.

And then Academy Award winning actress Reese Witherspoon got into a little bit of trouble as her hubby was picked up for driving under the influence and she was arrested for disorderly conduct. You know, it got me thinking that both of them made two fatal mistakes that I would guess you advise all your clients about. Number one, Al Michaels took a field sobriety test.

Number two, Reese Witherspoon got belligerent with officers who were — who were questioning her husband in an OUI case.

I would assume big, big no-nos in both cases. Correct?

MR. BOWSER: If I were to give someone advice, and it’s always — it’s always after the fact, but I always tell folks that if you’re pulled over, one, first and foremost, you have to cooperate to some extent with the police. Obviously you have to hand them over license and registration. You don’t have to answer questions but if you’re given a command, a lawful command by a police officer, you have to obey that command. Even if it’s, “step from the vehicle,” or, “get out of the car,” you have to follow those directions. If you don’t, you’ll find yourself probably under arrest not only for resisting arrest but possibly, depending on your behavior, disorderly conduct as well.

STUDIO: So if they order you to get out of the car, if they say, “get out of the car,” even if you have no intention of taking that field sobriety test, you need to step off out of the car?

MR. BOWSER: That’s a lawful order. You do have to follow those directions. Now, you don’t have to take field sobriety tests. And I would advise people to not take those tests because they are designed to fail. However, the police are not required to tell you that you have that option or that choice.

And as far as Miranda goes, Miranda are those rights that you hear — if you watch Law and Order, every single arrest on TV begins with the recitation of “You have a right to remain silent. You have a right to an attorney. Anything you say can and will be used against you in a court of law.” Those are the typical what are known as the Miranda Warnings. However, the fact that a police officer, during a DUI stop or arrest, does not give you those warnings, doesn’t render the arrest illegal.

Oftentimes people come into my office, having been arrested, and the first thing they say is, he didn’t read me my rights. That rule is essentially what they call a prophylactic rule, meaning if they don’t give you the warnings — it applies to custodial interrogation.

If they ask you any questions after you’ve been placed under arrest, they can’t use your admissions or your responses to those questions unless they’ve given you the Miranda Warnings, you’ve acknowledged them and you voluntarily waive them.

The fact that they don’t read you those warnings at the time of the arrest, again, doesn’t render the arrest illegal. It just means that if they continue to ask you questions after you’ve been placed in cuffs, they may not be able to use your admissions or your responses to those questions later because they didn’t give you those warnings.

STUDIO: What kind of questions are you asked before they give — they read you your rights? Let’s — let’s say you’re — you’re pulled over and — whether you’re in your car or whether they’ve already asked you to get out, what — what are they asking? What should you respond?

MR. BOWSER: Well, the — the first question any officer is going to ask you, he’s going to come to the window, good evening. Do you know why I’m stopping you? And then he’s going to ask you, where are you coming from? Where are you going? And then of course, have you been drinking? And beyond handing over the license and registration, you do not have to answer any of those questions.

Very few people have the wherewithal or the knowledge to do that and to say, I’m not answering any questions, but you don’t have to answer those questions. But initially it’s always going to be, where are you coming from? Where are you going? Have you been drinking? And then from there, obviously there’s an exit order. Please step out of the vehicle. I want you to perform field sobriety test. And quite often after that there’s an arrest.

Once that arrest has been made, that’s when those Miranda Rights kick in, and if they continue to question you after that, any of your responses may be excluded as evidence at trial because they failed to give you those warnings.

STUDIO: If you answer one, are you obliged to answer all of them? Like, let’s say they ask you, do you know why I stopped you? And you say, No. Are you now obliged to answer everything else? Where are you coming from?

MR. BOWSER: You’re not obliged to answer anything. You don’t have to provide them anything other than your license and registration. Every citizen has the right not to respond to questions by police.

What’s interesting now is with the second Marathon bombing suspect in custody, he is literally under arrest as he sits in a hospital, and they’re talking about invoking an exception to the Miranda rules for him because of what they call the public safety exception. There is a concern that possibly he’s part of a larger group.

There might be other devices that they’re unaware of that they haven’t found. And because of those concerns, the federal government may seek to dispense with Miranda, not give him those warnings because there’s a public safety concern that they need information immediately, and that trumps his right to be given those warnings.

STUDIO: And that’s a very narrow — the public safety concern, and I’ll tell you what, watching the — watching the weekend talk shows, the talking heads really were going back and forth about it a lot after U.S. Attorney Carmen Ortiz on Friday said in the press conference, we’re not going to read him his Miranda Rights.

How much of a window — that brings up the thing. How much of a window do you have? Couple of days? You know, I mean, didn’t — didn’t the governor and everybody come out, Mayor Menino, come out on Friday night in the press conference on Saturday and say, you know, the danger is done. Go back to normal. Didn’t they, in essence, undermine the — the fed’s case here for not reading him his Miranda Rights?

MR. BOWSER: That is going to be a factual and a legal dispute, you know, down the road in a federal court somewhere. There’s going to be an attorney representing this person, making just those arguments, that the public safety risk has passed. It’s over. It’s — that — that’s a closed issue, and therefore he is entitled to his Miranda Warnings.

Obviously the federal government’s going to take a different position, and they have their reasons for doing that. So that — that will be a litigated, argued issue before a judge in a federal court several months from now.

STUDIO: I found it fascinating that the — that the, you know, law enforcement sources and the politicians would, in fact, say, you know, we believe the danger is behind us.

Probably an example there why people should talk an awful lot less during these press conferences and why the, you know, let the attorneys and the prosecutors who are familiar with the law and the courts kind of have at it. Because I — I thought the exact same thing. I thought they undermined the case, you know, that Carmen Ortiz was making for not reading him his Miranda Rights. I — you know, I thought by giving kind of the all-clear, let’s get back to normal and go out and celebrate in Boston, I thought they were kind of saying, aahh.

MR. BOWSER: Well, you know, what they say into the microphone at a press conference versus what an investigator or a police officer or a federal agent is looking to solicit from him, two different things. And from what I understand, he is already communicating with investigators. Not verbally.

But he’s communicating by way of writing, and he is answering some questions already.

STUDIO: Alright. So Miranda Rights, they are read to you if you’re arrested at the scene of a — of a DUI; but if they’re not, it doesn’t mean that the arrest is invalid. Only what you say afterwards.

MR. BOWSER: In a typical DUI arrest, the Miranda Rights are not read to you at the time of the arrest at roadside while you’re being placed into the cruiser or removed from your vehicle.

When I see the Miranda Rights given is during the booking process. So you’re already 10, 15, 20 minutes into this custody where you’re brought to the station and you’re booked.

And there I will almost always see the police departments, whether it be the state police or local police, they will read you your Miranda Rights at that time.

They may ask you at that time, will you answer some further questions about what went on this evening? And then you do have the right, obviously, to say, I don’t want to talk. I don’t want to answer questions. And quite often, they — they will always honor that request and they won’t ask you any further questions. You’ll be booked and you’ll be released.

STUDIO: So your best advice is don’t be belligerent. Be cordial, cooperate, but don’t answer any questions.

MR. BOWSER: Well, if — ideally, if you — if you’ve been pulled over and you’ve been drinking and an officer is asking for license and registration, as I said, you have to give him those documents. My response to him would then be, am I free to leave? And he’s going to look at you and say, well, you’re not free to leave. And you say to him, well, I’m not going to be answering any questions. Politely, succinctly, keep it simple. And at that point he needs to make a decision, he or she, but I would not suggest that you then answer questions, take field sobriety tests, or take a breath test.

Now, there are consequences to those decisions obviously.

STUDIO: I was going to say, doesn’t that imply some type of guilt, that you’re — that you’re hiding something? Aren’t you — aren’t you, in essence, sending up a warning flag to the officers that I have something to hide?

MR. BOWSER: Well, in Massachusetts, if you exercise your right to refuse field sobriety tests or to refuse a breath test, that refusal — evidence of that refusal is not admissible in a courtroom. We are one of very few jurisdictions that has that rule, whereas in New Hampshire, where I also practice, your refusal of a breath test is admissible. Your refusal of field sobriety test is admissible. And there is a consequence to that. If you refuse a breath test, there’s going to be an administrative license suspension, and depending on what your prior history is, it’s going to be anywhere from 180 days up to lifetime.

STUDIO: That’s New Hampshire.

MR. BOWSER: That’s Massachusetts.

STUDIO: Massachusetts. Okay.

MR. BOWSER: Has a graduated series of what they call chem test refusal suspensions. If you have no prior, it’s 180 days — 180 days. If you’re under 21, it’s a three-year loss of license for refusing. And if you have prior offenses, it can be a three-year, five-year, or lifetime suspension, just for the refusal of the breath test. So that decision obviously comes with some very serious consequences.

STUDIO: Can I ask a question? How come it’s not — how come it’s not permissible to allow it into evidence in the trial if you refuse to take a test but it’s permissible to pull your license?

MR. BOWSER: Because your license is a privilege, not a right. So you have a right, under the state constitution and the U.S. Constitution, not to implicate yourself. So the courts in Massachusetts have said that that decision to refuse field test or breath test is reflective of your state of mind and therefore violates your right not to implicate yourself.

However, your driver’s license is a privilege, it’s not a right. And the Registry of Motor Vehicles, by law, can take your license if you refuse to take a chemical test.

STUDIO: One final question. You said that if the officer orders you out of the car, you have to get out of the vehicle.

MR. BOWSER: You do.

STUDIO: That applies for passengers as well or only the operator?

MR. BOWSER: If you’re a passenger sitting in a motor vehicle and you’ve been given a command by a police officer to exit the vehicle, I would say that you have to obey that command and get out.

STUDIO: What do you do once you’re out? What if — what if they tell you, you know, to walk on over to, you know, the — you know, let’s say they’re going to be a little sneaky and not necessarily give you the field sobriety but say, you know, walk on — you know, get 20 paces away from the car or something to that effect? Or walk around the vehicle, you know, go over, stand by my cruiser. What — what are the boundaries that they have to abide by?

MR. BOWSER: Well, I think you have to follow directions. Get out of the car. You do have to remove yourself from the vehicle. As far as walking you around and moving you to various locations, within reason you do have to follow directions. I can’t imagine they would do something like that unless they do intend to give you field sobriety tests. But if you’re given an order by a police officer to step from the vehicle, my advice is to follow that command and get out of the car and cooperate. Do not become belligerent. Don’t give them a hard time, because they’re out there trying to do a job and you have rights and they have a job to do, so.

STUDIO: You walk — you get out of the vehicle, he orders you to walk around to the back of the vehicle. You stumble as you’re doing so. You lean. You –

MR. BOWSER: All of that — If you’re the –

STUDIO: Is that admissible?

MR. BOWSER: If you’re the driver, then those observations that the officer makes are all relevant and are probably all admissible. So they certainly are watching you throughout their contact. Booking, roadside, transport, custody. They are looking for clues or indicia of impairment throughout their entire encounter with a driver.

STUDIO: Attorney Bowser, if folks want to get in touch with you or your law offices in Chelmsford and Nashua — correct?

MR. BOWSER: Yes. I have an office in Nashua, 6 Manchester Street. And I’m over on 221 Chelmsford Street in Chelmsford. 978-256-2700. And the website is bowserlaw.com. www.bowserlaw.com.

STUDIO: And as we should mention, there are not many certified OUI specialists in the country. You are one of them.

MR. BOWSER: Board Certified DUI Defense Specialist. One of three practicing in Massachusetts and one of two licensed to practice in New Hampshire.

STUDIO: And he is also a member of our Expert Network. Lowell Attorney Mike Bowser joining us this morning here on 980 WCAP. Thank you for your time.

MR. BOWSER: Thank you.