Category: DUI

Marijuana is Legal in Massachusetts but…

Recreational marijuana is legal in Massachusetts for adults over the age of 21. However, there are many restrictions that are still in place. If you use marijuana, it is important to understand these laws so that you do not end up in trouble.

According to the law:

  • You can’t use marijuana in any form (smoking, vaping, edibles, etc.) in public or on federal land. This means you cannot use marijuana on public beaches, national parks or other public areas.
  • You can have up to 1 oz on you and up to 10 oz in your home. If you have more than 1 oz of marijuana in your home, it has to be kept in a locked box. You can also grow up to 6 plants per person in your home, and up to 12 plants for 2 or more adults. These limits are important. If you wish to grow more than that amount or have more for resale, you will need a valid license.
  • It’s illegal to drive under the influence of marijuana and you cannot have an open container of any form of marijuana in the passenger area of your car while on the road or at a place where the public has access. It must be stored in a closed container in your trunk or a locked glove compartment. If an officer sees marijuana in your car, or smells it on you, or suspects that you have been using, you can get arrested for OUI marijuana.

Attorney Bowser has never lost an OUI marijuana case.
If you have been charged with an OUI marijuana and want to fight your case, please call 888-414-9202 today to schedule your free case consultation. Your case deserves an aggressive defense and Attorney Bowser is ready for a fight.

Are the Police Qualified to Charge you with DUI Drugs using the DRE Protocol?

With the legalization of recreational marijuana in New England, arrests for DUID (Driving Under the Influence of Drugs) have gone up recently. However, there are some fundamental flaws in DUID enforcement which need to be discussed.

The Drug Recognition Expert (DRE) Protocol is Not Scientifically Proven

In a ruling issued on March 31, Judge Jennifer Tyne of Central Berkshire District Court called into question the validity of the DRE Protocol. The DRE protocol has been adopted by all 50 states and is used to evaluate whether or not a driver is under the influence of certain drugs. After a training program, law enforcement officers can be certified as Drug Recognition Experts.

The Court, however, ruled that DREs were not experts and that the training program lacked scientific validity. When the state was challenged to provide evidence that the training program was valid:

The state did not provide any evidence that the content of that training was accepted by the scientific community or was scientifically sound in the first place.

The court took into account three law enforcement studies, from 1985, 1986 and 1994, that formed the basis for the body of knowledge and the methodology of Polidoro’s training.

The court found faults in those methodologies and reporting in all three studies and determined that they were not a relevant or reliable source for the officer’s training.

Commenting on the proficiency of the DREs, Judge Tyne said:

As law enforcement has embraced these studies as the basis for their trainings, the Court finds that, `proficient,’ as used by law enforcement means a 43% to 49% accuracy rate for identifying those subjects with no drugs in their systems. The Court does not find this to be reliable, let alone proficient.

Based on the evidence presented at this hearing, the Court finds that the body of knowledge, the principles and the methods that the officer was instructed on are not reliable predictors of whether an individual is under the influence of certain narcotics.

You can read more about the Central Berkshire District Court ruling at: Judge tosses evidence in OUI stop by drug recognition expert.

The DRE protocol has been challenged in many states and a number of courts have also ruled it as lacking scientific backing and evidence. In 2012 case: State of Maryland v. Charles David Brightful, et al, No. K-10-04-259, Circuit Court for Carroll County, MD, the Court held:

Applying Md. R. 5-702 to the proposed DRE testimony, the Court finds that a drug recognition expert is not sufficiently qualified to render an opinion, that the testimony is not relevant, and the probative value of the evidence is substantially outweighed by its prejudicial effect.

In that case, one of the expert witnesses, a psychiatrist, testified:

“I have got to tell you, your Honor, DRE is something that’s not foremost in the mind of those of us who take care of substance abusers, clinically or forensically. People are aware of it. But it’s… no one I know of, no physician I know of, would even consider using this matrix or the – even pieces of it in determining either whether someone was impaired on drugs or even more ridiculously to tell which specific drug category. It’s ridiculous. I can’t emphasize that enough.

How do these rulings affect people who were arrested for DUID?

In many cases, evidence can be successfully challenged and even thrown out by the court. DUID cases are complicated to defend because there is a lot of science involved which is above the heads of most attorneys. However, the right attorney can make it very difficult for the state to prove impairment.

Attorney Mike Bowser has never lost a DUI marijuana case. Ever.

If you have been arrested for DUID, whether it was for marijuana, prescription medication, or other drugs, it is in your best interest to find an attorney who is able to challenge the state based on science. Forensic science is not taught at law schools and not every attorney is qualified to challenge these cases.

Attorney Mike Bowser is one of the few attorneys in New England who is a certified as a DUI defense specialist. He has attended the renowned Forensic Chromatography course at Axion Labs and is widely respected for his professionalism and knowledge of science and law. Call 888-414-9202 today for your free case consultation.

A Year in Review 2018

What does a busy, aggressive, successful DUI Defense practice look like in Massachusetts and New Hampshire? In 2018 Bowser Law resolved 145 DWI and OUI cases in New Hampshire and Massachusetts. I also just started accepting Maine OUI cases after I was sworn in as a licensed Maine Attorney in February 2018.

I resolved ninety-five (95) NH DWI cases in 2018. The New Hampshire DWI Defense practice is vastly different than the Massachusetts OUI Defense practice, but similar to the OUI Defense practice in Maine. In New Hampshire, prosecutors are given the authority and discretion to charge bargain in the plea negotiation process. This means a DWI charge can be amended or dismissed by agreement to allow for a plea to a lesser offense. Most often this is a plea to Reckless or Negligent Driving or some other civil offense. It allows the defense and prosecution to avoid a trial that may carry risk to either side. Appropriate and creative sentence conditions can be imposed. Most importantly, a criminal conviction is avoided and a DWI disposition is avoided. A DWI conviction creates reciprocity issues for a Massachusetts or a Maine resident, but the hardship for a Massachusetts resident that has one or more prior drunk driving matters under the lifetime lookback provisions of Melanie’s Law can be staggering. Imagine a two year, eight year, ten year or Lifetime loss of license because of DWI 1st conviction in New Hampshire. This process is both efficient and ethical. New Hampshire prosecutors exercise this discretion only when appropriate and, often times, only after considering the evidentiary, search and seizure, constitutional and legal and/or trial issues raised by the defense. One more reason to always conduct the Administrative License Suspension (ALS) Hearing. It helps to build a useful record for the defense, rather than simply relying upon the assertions in the police report.

In fifty-four (54) NH DWI cases I was able to negotiate a plea to a lesser civil infraction.

In fourteen (14) Aggravated DWI cases, all the matters were resolved without a conviction of the Aggravated charge, which avoided mandatory jail time, mandatory installation of the Ignition Interlock Device, a minimum twelve (12) month loss of driving license/privilege and allowed for the regular B Misdemeanor DWI charge to be reduced to a violation in one (1) year. Almost all of these cases resulted in a plea to a DWI 1st charge with some enhanced penalty, typically a longer license/privilege loss.

New Hampshire Law does not allow for a jury trial on a DWI 1st offense. Every DWI 1st case proceeds to trial before a Judge only. This is referred to as a Bench Trial. I completed 13 NH DWI Bench trials in 2018, with seven (7) not guilty verdicts and six (6) guilty findings. My only NH DWI jury trial last year was on a subsequent offense, which unfortunately was a guilty finding. 81% of my NH DWI clients were not convicted of DWI, or not convicted of the most serious level of DWI offense charged (Aggravated or 2nd/3rd Offense).

I resolved fifty (50) Massachusetts OUI cases in 2018. The practice in Massachusetts is vastly different because the OUI charge is never negotiated away as part of plea agreement and you can have a jury trial, even on an OUI 1st Offense. Especially because of the lifetime lookback effect of Melanie’s Law, clients with subsequent offenses are faced with “go to jail or go to trial” decisions. I prefer the go to trial option!

I completed twenty-one (21) MA OUI jury trials in 2018, with seventeen (17) not guilty findings. I completed three (3) bench trials, where the client and I decided to waive the jury trial, with three (3) not guilty findings.

Six (6) OUI charges were dismissed outright, for lack or prosecution or success on a Motion to Suppress, where the grounds for the stop or arrest were challenged. An outright dismissal has the same effect as a not guilty finding, as opposed to a dismissal following a Continuance Without a Finding (C.W.O.F.), which is not a true dismissal and counts as an OUI 1st disposition for the rest of your life.

In thirteen (13) cases, the client opted for the above described C.W.O.F. plea option, after considering the evidence, legal issues, and oftentimes, the expense and time associated with a trial as well as the ability to obtain a hardship license much sooner.

Two (2) cases were resolved with Cahill pleas. This is a plea option that allows a defendant charged with OUI 2nd Offense, to be sentenced again as a 1st Offender. This disposition does result in a mandatory period of ignition interlock placement for at least two (2) years. A Cahill eligible client can only have one (1) prior OUI disposition that is more than ten (10) years prior. 56% of MA OUI clients avoided an OUI conviction, or conviction of the most serious OUI Offense charged (2nd Offense).

That is 37 OUI/DWI trials last year, which is about average for my practice over the past several years. I actually used to try many more cases in New Hampshire, but now tend to resolve more by agreement. Hopefully, the rate of success for my clients continues in 2019 and I look forward to building my OUI Defense Practice in Maine.

Breath Test Consolidated Appeal Decision – Expert Network, March 3, 2017

Teddy Panos: We’re back here at 980 WCAP Merrimack Valley Radio. Teddy Panos, Chris Poublon. We’re not breaking any laws this morning. I do want to bring in our next guest, however. You heard that theme song. It wasn’t a coincidence that a member of our expert network attorney Mike Bowser is joining us in studio. We don’t encourage you breaking the law but if you do, well, you’re going to need a good lawyer. You might as well call our favorite lawyer. How are you, counselor?

Mike Bowser: I’m doing great. Good morning.

Teddy: Good morning. Good to have you here. How are things?

Mike: Busy.

Teddy: Busy is good. You do more than just — when we bring you in we talk an awful lot about your specialty, which is driving and operating under the influence cases and laws. That’s what we’re here to talk about today. You do handle other cases as well through the law firm?

Mike: Oh yes. We do a lot of criminal defense work. I actually have a drug case today over in the old District Court to a lot of other criminal work and a lot of personal injury litigation both in Mass and New Hampshire.

Breath Test Consolidated Decision

Teddy: Okay. The last couple of times we’ve talked to you, the discussions have been dominated by the problems that you help disclose on our air a year or so ago about the breathalyzer test. How the machine wasn’t calibrating properly or wasn’t properly being calibrated. Who knows what the case may be in many of those cases?

It put at risk, what you said were, hundreds of cases involving folks who had been pulled over for operating under the influence and had been subjected to those breathalyzer tests. You told us that there was going to be a very important ruling coming at some point that would determine the future of these cases and maybe of that machine. The jury reached a verdict.

Mike: Well, not the jury but–

Teddy: [laughs] The judge.

Mike: There was a consolidated group. Originally it started off with about 560 cases from across the commonwealth. The purpose of that consolidated group was we were allowed by the Supreme Court decision to challenge the scientific reliability of the Dräger Alcotest 9510. That’s the particular machine utilized in Massachusetts for breath testing.

As that case went forward for about two years other cases involving breath test evidence were essentially stayed or backed up and placed on pause waiting for the same decision. It got probably close to 3,000 cases across the state. The decision from Judge Robert Brennan who was the judge assigned to conduct the one hearing and write the one decision came down February 16th.

The gist of it is we were challenging the reliability of the software. He found that the software, although not perfect, was scientifically reliable. He found that the machine is able to distinguish alcohol from other interfering substances in the way that it uses its methodology. The science behind the machine, the technology is reliable.

What he did find is that Office of Alcohol Testing — that’s the state agency that was responsible for maintaining, calibrating and then certifying these machines annually; this is about 350 machines or so across the state — prior to September of 2014, they did not have in place any written protocols or procedures as to how they went about calibrating, certifying the machines annually.

If you were to walk into their laboratory prior to that date they would have said “Well, we do it the way we do it. It’s a word of mouth procedure.” Which in a laboratory that’s not scientifically reliable.

Teddy: I was just going to say in a court of law where facts matter and evidence matters, that’s not a good way to conduct business.

Breath Tests Excluded As Evidence

Mike: It was not. He found that that was wholly lacking on the part of the Office of Alcohol Testing. Actually the most important part of the decision going backwards was he ended up saying that or deciding, ordering, that any test done prior to September of 2014 is presumably excluded. The Commonwealth can try to get around that order by bringing in the scientists that actually did the calibration for a particular machine.

That would mean they would have to bring in a scientist for every single breath test prior to that date. His decision, his order, ended up excluding hundreds and hundreds of breath tests, many of which have been waiting for that decision.

Then, interesting enough, through the process — there’s about 10 days of testimony, there were eight to 10 witnesses that testified for both the state and for the defense — we learned a whole lot about the machine. The machine has about a seven percent margin of error. OAT admits that on any given test there is about a seven percent margin of error.

Teddy: That’s high. Well if you’re a .10, .09, .08 that’s certainly high.

Breath Temperature

Mike: Then another thing that came out as a scientist from Dräger testified that within their own corporate studies. They found that breath temperature drifts about six degrees up and down. The machine is set up and it assumes that every person that blows into the device their breath temperature is 34 degrees Celsius. That’s based on a study of six Swedish guys in 1954.

I mean those numbers have been around forever. When they did their own studies, they found that people’s breath temperature goes anywhere from 37 as a high down to 31 as a low. The significance of that is if you’re one degree Celsius high your breath result is elevated six and a half percent. If you’re three degrees over that, then it could be as much as 20% off the wrong way.

The technology exists by way of a thermostat to measure breath temperature and correct for it. Which is how they do it in Europe. It’s how they do it in Alabama. That’s not how they do it in Mass. There is no thermostat in Massachusetts.

If you’re running a fever, you’re just one or two degrees over 34 degrees Celsius, and plus the 7% drift, you can have a significant margin of error. Significantly false positive high breath test. That’s some of the stuff that came out of this hearing process.

Teddy: Who knew the variances? Who knew the potential flaws with this? When did they know it?

Other Breath Test Issues

Mike: Well there are other issues. The machine is supposed to have — it has a fuel cell measuring device and an infrared measuring device. Those to talk to each other. They’re supposed to have a tolerance between the two because if there’s a drift between those two measuring devices, it would indicate an interfering substance is present.

Massachusetts requires 38 micrograms per liter to be the maximum tolerance allowed. Every single machine sent by Dräger into Massachusetts is set up at 60 micrograms per liter, nearly twice. Not a single machine online in Massachusetts is actually set up to the tolerances that OAT requires. We found that out as well. That’s maybe a basis for exclusion going forward if the government can’t show that these devices are actually set up correctly. We came to find out that they’re not.

Teddy: Now again, this is not meant to say, that’s obviously not meant to encourage operating under the influence, drinking and driving. It’s not meant to say that when you are pulled over because you have been swerving, because you hit a parked car or a moving car that you’re not under the influence. Obviously, that’s something serious and needs to be dealt with. You can tell when someone is really drunk.

What we’re talking about here, however, is that we thought we had a scientific method to determine that. When they start — the blood alcohol level used to be higher before and then it got dropped to .08. A lot of that was based on that we had science that determined who was under the influence, who wasn’t, at what level.

We’ve also have been under the impression for decades now that we could measure it dispassionately. We’re not talking about the observations of an officer. We’re not talking about what he saw, what the suspect did. We’re talking about pure, hard and fast science. We’re not, are we?

Mike:  We’re not.

Teddy: We are talking about a machine that is very, very flawed and really can’t tell you the truth to the specific degree. Where as you said if you are .23 you are a .2, we get it. If you’re .09 or .10 or if you blew .08, .09, .10.

Mike:  These are criminal prosecutions. This is a courtroom where it is proof beyond a reasonable doubt.

Teddy: Loss of licence.

Mike: Proof to a moral certainty is the standard of proof. Before this hearing process, I think many jurors would come to believe that that machine is perfect, it’s magic. And it’s not.

D0es This Decision Dismiss all Drunk Driving Charges?

What is also important to realize is that the decision doesn’t dismiss all of these drunk driving charges. It just says these cases are going forward. These people are all going to be prosecuted and go to trial if they choose to do so. They’re just going to go to trial without the breath test evidence. They’re still going to be facing OUI charge with observations, field sobriety tests, how they were driving, how they were acting.

In these particular cases that one piece of evidence has been removed from the equation. The judge — you can tell throughout this decision, which I thought was pretty well done — he understands the importance of these test results. They can have the effect of basically a guaranteed conviction, in many cases, because that number is over that .08 threshold. If a jury is taking that to be a perfect machine — a reliable machine — it is very difficult to overcome that evidence.

The End of the Breathalyzer?

Teddy: Is this the beginning of the end of the breathalyzer machine as we know it? Is it the beginning of getting a better machine? A better way of determining if somebody is under the influence especially when they’re borderline?

Mike: I think what came out of this decision is that the machine works as it’s designed to. It’s not a bad machine. There were some definite issues with the way that it was put into the field. How it was calibrated. How it was certified so that a defense practitioner wanting to challenge the history of the machine, the validity of the machine, would be at a loss to do so just because of the way that it was put online. Things have improved. They’ve improved as a result of this litigation. They’ve improved as a result of changes that have been made at OAT. I mean, that’s our job. We push back and hopefully things get better for our clients and better for everybody overall.

Teddy: Do you have clients that are affected by this decision of February 16th? Now, I know with confidentiality you can’t give me too much, but–

Mike: No, out of the original 560, I think I had 35. So now I’m going to be trying three OUI cases a week for the next six months.

Teddy: Is your winning percentage about to go up? You batting average is going to improve, right? You’re going to be like Big Papi when he came from the Twins to the Red Socks?

[laughter]

Mike: I’m going to be going for that short right field fence.

[laughter]

Mike: No, I’m happy to have cases now going to juries without breath test evidence, certainly. Those cases are, I think, easier to overcome without the breath test evidence. My job is that much easier for those particular cases. Then, on the cases where my tests weren’t excluded, I’ve got more work to do. I’ve found out quite a bit about the machine that I’m going to use going forward.

Teddy: We always like to say, we certainly don’t encourage you to require attorney Bowser’s services. Don’t drink and drive. Don’t take any drugs and drive and you won’t be in need of them. What we know, human nature is human nature. Somebody you know — maybe you, one of these days — is going to be in need of his services. How do we get ahold of you, counselor?

Mike: My website is bowserlaw.com. You can go through the website and get me 24/7. The phone number is 1-888-5-Bowser.

Teddy: How can you not like this guy? He comes in here, puts up with me on a monthly basis. I’m trying to put him out of business. I’m trying to tell people, “Don’t do it.” It’s going to put him out of business.

Mike: Yes. I figure I have about 10 years left before self-driving vehicles. That’ll be right about the time that I can retire, maybe.

Teddy: I was going to say, technology might change and make all this moot anyway, won’t it?

Mike: Sure. That’s why I have the other parts of my practice.

Teddy: All right. One more time, how do folks get in touch with you, counselor?

Mike: It’s bowserlaw.com and 1-888-5-Bowser.

Junior Licenses & the Junior Operator Law

Dean Contover and Board Certified DUI attorney Mike Bowser discuss junior licenses and the Junior Operator Law in this video.

What is the Junior Operator Law?

Dean: Let’s talk about real quick, the Junior Licenses. We both have teenagers driving. What should parents do if their child gets stopped?

Mike: Well, under the Junior Operator Law, both in Massachusetts and New Hampshire, the first citation, the first moving violation; speeding, stop sign, marked lanes, whatever it may be, will trigger — if they’re under the age of 18 — will trigger a loss of license, even a speeding ticket.

Often times, I’m asked to intervene on behalf of a young driver and we end up marking off the back of the citation requesting a hearing at the local district court whether it be Woburn, or Lowell, or Ayer, or Lawrence. And you have to make the pitch to the clerk magistrate, either on the facts of the case, whether they are, in fact, responsible. But the more likely outcome is you want to argue to the magistrate that the impact here is going to be a loss of license. Then the kid might be in school, working jobs, going to practice, whatever it may be. Sometimes you can convince a court magistrate to exercise some discretion and not find them responsible on that first instance. It’s not easy, but some of the magistrates will exercise some discretion in those first offender type of situations.

Hardship Licenses – Limited Licenses & the Board of Appeal

Individuals who have lost their licenses after a DUI arrest may be entitled to hardship licenses. Dean Contover and Board Certified DUI defense attorney Mike Bowser discuss hardship licenses and the Board of Appeal in this video.

What Are Hardship Licenses?

Dean: Now if somebody loses their license, do you fight for a hardship license and what is a hardship license?

Mike: If there is a loss of license imposed in Massachusetts, whether it’s for an OUI offense or a subsequent first, second, or third offense, you are entitled to it. Some point request a hardship license, and a hardship license is essentially a 12-hour license. During those 12 hours you can drive for, you have to state your hardship to the Registry of Motor Vehicles or more likely the Board of Appeal, and they will grant — really from certain instances — give you a 12-hour license. If it’s a drunk driving case, they’re going to often times anything more than a second, a first offense would require the ignition interlock device that they call the ‘blow and go.’

Melanie’s Law

Dean: The Melanie Law, is that part of it?

Mike: It was not part of Melanie’s Law originally, but now, it’s anyone who has more than one OUI offense and if they reinstated subject to a hardship, they must have an ignition interlock device, which requires that they submit a breath sample to a machine that’s hooked to their ignition. If you’re above a .02, the car won’t start. And if you’re above a .02, it’d be reported to the Registry.

Dean: I think it should be in all cars.

Mike: It won’t. Either there’ll be self driving cars or there’ll be an ignition interlock on all cars sooner or later.

Dean: Yes, that’s a good point.

Limited Licenses

Mike: In New Hampshire, just in the New Hampshire for the very first time January 1st of 2016, they passed a limited license law. Now the state of New Hampshire on a first offense DWI will allow a driver to apply for a limited license and theirs is much stricter, it can only be from home to work, home to the medical appointment, home to drug or alcohol treatment, or school, whereas in Massachusetts within those 12 hours you can drive wherever you want. Within the 12 hours.

Dean: It’s flexible.

Mike: New Hampshire, you have to have the court order in your car and you can only be going from point A to point B within ignition interlock. For the first time they’ve passed that law in New Hampshire. And they realized that . . ..

Dean: And when does that go in effect?

Mike: You can apply as long as you’ve served 45 days of the suspension, you can apply for a license. For instance, a DWI first in New Hampshire, that minimum mandatory loss of license is a period of at least 90 days. So they’re making them serve half of it, but I think there was a realization in New Hampshire, especially. They have very long suspension periods, much of the state is rural, in the sense that there’s not a lot of public transportation, and if you’re without a license in the state of New Hampshire, you very well are going to lose your job, and you could lose your home, and I think they realized that they have to give an opportunity to people to at least work. And then other reasons.

Dean: That makes sense.

Mike: It does. We’re learning it as we go. I’ve had a handful of situations where we’d made the application and the judge has granted it.

Dean: Okay. You talked about the appeal, are we talking about the Board of Appeal, motor vehicles liability, policy and bonds, provisional insurance?

Mike: Yes. I referred to them as the Board of Appeal. The Board of Appeal has a panel of three . . ..

Dean: But that’s not the Registry.

Mike: No, they sit and review of registry suspension, so there’s two levels of hearings that you can go to for purposes of your hardship license in Massachusetts. You can initially go into the Hearings Division of the Registry, meet with a Registry of Motor Vehicles Hearings officers, and that hearings officer may or may not grant you hardship relief. And they have policies and rules and procedures as to who they can help and who they can’t, and if they can’t help you, they’ll quite politely tell you, “We can’t help you, but you can go see the Board,” meaning the Board of Appeal.

The Board of Appeal has a three member panel, one is appointed by the Governor, one is appointed by the Attorney General’s office, and I think one might even be a designee of the Register of Motor Vehicles. But those three members hear cases for hardship relief, and they can modify, reverse, or uphold the Registry’s decision. So it’s a second level of appeal, and often times with DWI or OUI, second, third, fourth offenders that are looking for hardship relief, you do end up in front of the Board of Appeal.

Dean: I see. And you go relatively often to the Board of Appeal?

Mike: Yes, quite a bit.

Dean: Okay.

Mike: And then they sit . . ..

Dean: Because it’s a different entity, because what I read was under the Division of Insurance, rather than RNV.

Mike: Yes, they sit in Boston and they sit in Marlborough district court of all places on Friday morning, so my hearings through the Board are typically in Boston or in Marlborough.

Drug Possession Defense

In this video, Dean Contover discusses the various techniques for a drug possession defense with Board Certified DUI attorney Mike Bowser.

Techniques for Drug Possession Defense

Dean: Drug possession defense. Let’s talk a little bit about that; we have a few minutes left.

Mike: Sure. How did you, the drugs, and the police come to be at the same place at the same time? That’s the critical issue. Most drug cases are not won or lost at trial because at trial, there’s six ounces of cocaine in your purse, it’s in your car, you’re not going to win or lose those cases typically, in front of a jury. Where those cases are won and lost are in front of a judge on what are called, motions to suppress, where you’re arguing the legality of a search, or a seizure, or a stop. Those are very factual cases; very distinct from one case to the next. A lot of that work involves those constitutional issues around search and seizure. Did they have grounds to stop the vehicle? Did they have grounds to get the person out of the car with an exit order? Did they have the ability to open a purse, open a trunk, search your home, search any number of things? They’re very fact-specific cases; very interesting area of the law.

Consequences of Plea Deals in Drunk Driving Cases

Plea deals in drunk driving cases may sound like a good “deal,” but they can actually have more severe consequences. Dean Contover and Board Certified DUI attorney Mike Bowser discuss plea deals in drunk driving cases in this video.

Plea Deals – Are They Worth It?

Dean: I know somebody that years ago, before this change in the law, just pleaded out the two cases and what happens in that case, see, he just pleaded he was young, he didn’t have money for an attorney, he just pleaded. Now, it has consequences.

Mike: I had that case in Springfield yesterday. I was trying an OUI third offense in the Springfield District Court. The gentleman had one, was 18 years old . . ..

Dean: Oh wow.

Mike: Barely over the .02 to limit. He just plead it out for the sake of convenience and then fast forward another 12 years or so, he had a second and he resolved that by pleading it out and then you fast forward another 10 years and he finds himself in Massachusetts. He gets stopped and arrested with an OUI, and under Melanie’s Law, that was a third offense. It was a felony if convicted, and it carries a mandatory jail sentence of 180 days, 150 of which have to be served behind the wall in the House of Correction. These cases under Melanie’s Law, these prior offenses, even the ones that occurred well before the change in the law, they never go away. It’s a lifetime look back. Every OUI disposition on your record from any jurisdiction counts forever.

Dean: What happened to double jeopardy? That doesn’t count here?

Mike: That was litigated. They said I believe the term is, ex post facto. You can’t impose upon someone today with a change in the law, you know, penalties based on what happened 20 or 30 years ago. But they’ve said “No, they can’t do that.” That change in the law was allowed and it did pull into effect old cases. Cases that you might have resolved 10, 15, 20, 30 years ago.

Dean: And you didn’t know any better, and you were younger, and you just plead them out.

Mike: Right.

Dean: So you have to fight for a lot of these people.

Mike: Because of that situation.

Dean: In other words, don’t plead.

Mike: I’m not a plea escort service, as I say. Most of my practice is subsequent offenses; second, third, fourth, offenses. In almost every one of those cases is going to be a trial, because if you plead out, you’re going to jail. The consequences are horrible and when I meet a first offender, I tell them the same thing. “Listen, a first offense can be inconvenient, but a second offense can be life-altering or a third offense.” So I am a strong proponent of not pleading out cases and I would much rather see people go to trial, let the chips fall where they may. I don’t win every case. I win, certainly, a lot more than I lose. I lose my fair share of cases, but I would much rather see people take cases to verdict, take them to trial, and then deal with the consequences after that.

About Mike Bowser and Bowser Law

In this video, Dean Contover and Mike Bowser discuss facts about Mike Bowser and how Bowser law was started.

About Mike Bowser’s Education 

Dean Contover: You graduated from Princeton High School in 1985, Providence College, and then you went to Law School.

Mike Bowser: Which was the Franklin Pierce Law Center. It’s now actually the UNH Law Center in Concord, New Hampshire. And I’m sitting in the Parker Junior High School with you right now at the studio and I’m a graduate of the Parker Junior High School as well.

About Mike Bowser’s Practice

Dean Contover: Wow.  Okay.  You’ve been practicing for around 20 years now?

Mike Bowser: I was admitted in Massachusetts in January of ‘95 and I was admitted to practice in New Hampshire October of ‘96, so that’s 20 years.

Dean Contover: You presently still live in Chelmsford? 

Mike Bowser: Yes, I do.

Dean Contover: Okay.  Why didn’t you write a book on this?

Mike Bowser: I don’t have time. I’d love to. My practice is very heavy on trials and when you try a lot of cases, you see a lot of interesting facts and circumstances and you certainly meet a lot of interesting people — from my clients to the police, to the judges and the clerks, and everyone.

What I love about my practice is I love trying cases to verdict. I love doing jury trials. I love going to a different court. Yesterday, I tried a case to verdict in Springfield and I don’t get out to Springfield all that often. I had a really, really positive experience with everybody from the judge, to the jury, to the court officers.

Dean Contover: That’s good to hear.

Mike Bowser: And the prosecutor. I had a good outcome. I was very fortunate, my client as well. But I love to go from court to court to court and try cases.

Dean Contover: What is a day — this week? Let’s say today is Tuesday, Monday you were in Springfield, what happened today?

Mike Bowser: A typical week is Monday was Springfield. There was an OUI third jury trial. Today I was . . ..

Dean Contover: Not guilty or guilty?

Mike Bowser: Not guilty.

Dean Contover: Okay, good.

Mike Bowser: Today, I was in Nashua District Court on an assault, or an assault battery on a police officer type of case. It was a pre-trial conference. Tomorrow, I have a jury trial on mole and an OUI third as well. Thursday, I’ve got a domestic assault and battery in Goffstown, New Hampshire. Friday, I’ll be in Salem District Court, New Hampshire and Concord District Court on two separate DWI matters. In the background at the office, behind all that is the rest of my practice and my personal injury work as well.

About Mike Bowser’s Staff

Dean Contover: What about your staff?

Mike Bowser: My staff — sure.

Dean Contover: Let’s talk about them, because if they are watching this they are going to say . . ..

Mike Bowser: I am very lucky.  I have had a woman that’s been with me going on 15 years, Valerie Santos. She is the lifeblood of the practice. She’s the person who you will get on the phone when you call and juggling my schedule is her primary function in dealing, being the point of contact with all of my clients, as well. She’s wonderful and my clients certainly appreciate her. My wife is an office manager. I’ve got two other associates that are working with me as well.

About Mike Bowser’s Other Cases

Dean Contover: Is there any type of other cases that you take on besides DUI?

Mike Bowser: My criminal practice. About 90% of my criminal practice is drunk-driving defense, license issues, Board of Appeal issues. But I do assault and batteries, domestic violence, drug possession. I just finished a case in federal court with a colleague of mine on a federal drug case. I do other criminal defense work; the drunk-driving defense is the vast majority of it. And then I’ve always maintained a very active personal injury practice. In law school, I worked for a firm in Boston that did personal injury work and it’s something that I enjoy doing. I’ve had a lot of success with it and I’ve always maintained a personal injury practice well. Not quite as large in terms of the number of cases . . ..

Dean Contover: Right

Mike Bowser: But still a significant part of my practice. The way my practice is set up, I try a lot of criminal cases week in and week out and I think that prepares me very nicely to be able to go into a courtroom on a personal injury case, which many times those have to be tried to verdict as well. And that experience in the courtroom really pays off in the personal injury cases.