Category: DUI

DUI, DWI, and OUI – What Your Options Are When Pulled Over

Being pulled over by a law enforcement officer under the suspicion of a DUI, DWI, and OUI is a frightening and disconcerting experience. However, by understanding your legal options when you’re pulled over, you can keep a level head and protect your rights. Dean Contover and Attorney Mike Bowser of Bowser Law discuss what you can do when you are pulled over for a DUI, DWI, and OUI.

DUI, DWI, and OUI Explained

Dean: DUI, what does that mean? 

Mike: DUI, DWI, OUI are all the same thing. It’s just that different states describe drunk driving, the criminal offense of drunk driving, as one of those three things and it’s based on the statute of the law. For instance, I practice in New Hampshire. In the law, the statute says “driving while intoxicated” is an offense. They call it DWI. In Massachusetts, the law says “operating under the influence” and they call it OUI. In many states, they call it “driving under the influence.” They refer to it as DUI, but all three of those three letter acronyms are descriptions of drunk driving.  

Dean: Okay. Let’s say we’re in Massachusetts, not to use New Hampshire. I’m driving. I went to a wedding. I had a few drinks. I’m driving down the road and I get stopped allegedly for – the police officer feels that I have a problem. What should I do? I mean, I know it’s hard for you to tell me what to do in regards to whether I should take the test.  

Mike: I can tell you what you can and have to do. 

Dean: That’s all right.

What to Expect During a Traffic Stop 

Mike: So, almost every drunk driving investigation which leads to an arrest for DWI or OUI, it begins with a moving violation. You are driving without your headlights on. You failed to signal a turn. You rolled through a stop sign or you’re speeding, whatever it may be. The officer, if he has reasonable grounds to suspect that you committed a moving violation or a crime – you could be weaving all over the road and he thinks you’re drunk driving. He activates the blue lights. You’re required to stop and pull over.

And when he approaches the vehicle, he’s always going to inquire of you, number one, license and registration. And you’re required to have those documents – a registered vehicle and be a licensed driver. You do have to hand those documents over to the officer. And at that point, the officer’s always going to inquire as a threshold inquiry, what they call a threshold inquiry, where are you coming from, where are you going.

Your Rights to Decline to Answer Questions or Submit to Tests 

Dean: Do you have to answer that? 

Mike: You don’t. And he’ll ask you based on his initial observations, is your speech off, slurred? Is there an odor of alcohol? He very well may begin with, “Where are you coming from? Have you had anything to drink? How much did you drink?” He’s allowed to ask those questions in every case. And you, as a driver, as a citizen, are not required to answer them. You could say to the officer, “Am I free to leave?” And he’s going to be holding your license and registration and his response is going to be, “No.” And you could certainly say, “Well then, I’m not answering any questions.” Now, that’s not going to make him happy or pleased. 

Dean: Right. 

Mike: And then he’s going to have to make a decision based on everything he’d seen up to that point. Does he have enough probable cause or reasonable, articulable suspicion they call it, to ask you to step from the vehicle? And when he does, you can say, “Why do you want me to get out of the vehicle?” “Because I want to you take field sobriety test,” and you don’t have to take them. And you can say, “I’m not taking them.” And, again, he can’t force them upon you.

And you put the ball back in the officer’s court. He then has to decide. Okay they’ve refused testing, they’re not answering questions. Do I have enough at this point to make an arrest? Some officers will decide, yes, they do. Some may decide there’s not enough here and they may send you on your way with a warning or a citation. But the bottom line is most people don’t know that they don’t have to answer questions after handing over license and identification and registration. And they certainly don’t. 

Dean: But you have to do that. You have to give them your ID. 

Mike: Absolutely, yes. And if he tells you at that point, if you’ve refused to speak to him and you’ve refused to take field sobriety test, if he’s asked you to then get out of the car because I’m placing you under arrest, you do not have a right to refuse to get out of the car. You do not have the right to resist an arrest order.

Dean: All right. That’s a very good point. 

Mike: Even if later on, it’s determined that that arrest without exit order was illegal, you still don’t have the right to resist. And so, I would tell people always be cooperative, polite, but don’t be talkative and you don’t have to voluntarily provide information or have to take field sobriety tests. They are, in my opinion, under the circumstances of a road side stop, nearly impossible to pass under any circumstances.

Dean: Right.

What is a Board Certified DUI Defense Lawyer?

Not all criminal defense attorneys are the same. When you’ve been arrested, you want to be certain that you’re working with someone who has the skills and resources to help you. Hiring a Board Certified DUI defense lawyer to help you fight drunk driving charges may mean your exoneration.

Dean:  Hello, my name is Dean Contover and this is the Current Buzz. Today we have Mike Bowser, attorney Mike Bowser. He’s one of three attorneys that are Board Certified DUI defense attorneys.

Mike: Correct.

Dean: Right?

Mike: Yes.

Board Certification Explained

Dean: And what does Board Certified mean when it comes to DUI?

Mike: Well, board certification . . ..

Dean: Is this just in Massachusetts that you –

Mike: No, I practice in New Hampshire. I’m one of two Board Certified DUI defense lawyers in New Hampshire, one of three practicing in Massachusetts. I just happen to be licensed in both. The board certification process is governed by the American Bar Association, and the American Bar Association is the largest association of attorneys in the country. They allow certain groups, professional groups of lawyers to certify practitioners in various areas – maritime law, divorce law, bankruptcy law – and they’ve recognized DUI defense as a specialty which can have board certification through the National DUI Defense College.

So I went through that process, through the National DUI Defense College. It’s like taking a bar exam and I had to have six judicial referrals from judges. I had to have six attorney references, I had to provide them with a list of cases over three years. They wanted to see that I was trying to verdict a certain amount of DUI defense cases and doing exclusively DUI defense work, and then they actually verified through the courts in the courts offices that it was actually me doing the work as opposed to an associate.

Then you’re accepted to sit for the exam and it’s an oral exam, it’s a written exam, there is an appellate brief, an argument that has to be submitted to the board of regions to the National DUI Defense College. So I went through that process several years ago and was successful.

DUI/DWI Trial vs Plea in MA and NH

Attorney Mike Bowser talks with Dean Contover of The Current Buzz on CTM TV about the difference between a DUI or DWI trial vs taking a plea deal.

Mike Bowser: I guess a lot of lawyers would find what I do to be so nerve wrecking they wouldn’t want any part of it. And I’m the opposite, I can’t imagine doing anything other than trials. I enjoy being in a courtroom arguing cases before juries, arguing cases before judges. I would prefer that to any other kind of work, and that’s what I’ve done and it’s what I enjoy doing.

Dean Contover: What is your track record? Everyone wants to know your track record, it’s difficult to say.

Mike: I can tell you.

Dean: Can you explain how New Hampshire and Massachusetts are different?

Mike: Sure. Massachusetts you are left with two choices with an OUI charge – you can either plead it out, and anyone who is facing a first offense and most people with drunk driving charges have never been in a court room before.

Dean: That’s true.

Mike: And most of them will never be in a court room again. So they walk in there without a past, without a record that burdens them, and most people if they choose to resolve them and I say most – 99% of people who choose to resolve a first offense are going to plead it out to what is called a continuance without a finding. They admit to the offense and the judge accepts the admission but says, “We are going to continue it without a finding of guilty for a period of one year. You are on probation, you do the program, you lose your license but you can get a hardship and then at the end of the year, it’s dismissed.”

It’s a non-criminal disposition in Massachusetts, although other entities like the federal government, the Canadian government, they consider that plea the same as a guilty. In going forward, the registry and the courts say that if you’ve ever been convicted, found guilty – which a quaff is not – or assigned to an alcohol education program, and you get the assignment to the program with the quaff. So, people say, “I went into court, I got a quaff, it’s not a conviction, I was told it would come off my record.” It’s there forever as your first, therefore it triggers a second if you have another one.

So, I tell people if you want to plead it out, go hire whoever you want and any decent lawyer can get you the continuance without a finding. If you want to fight it, which is why most people are hiring me, and go to trial, I will guarantee you my best effort. I cannot guarantee you an outcome, but I always run between – I’ve never been below 50% and it goes as high as 70% that’s Mass and New Hampshire. New Hampshire is a lot different than Massachusetts. In Massachusetts, it’s go to trial, plead it out, that’s it. In New Hampshire, you can oftentimes negotiate with the prosecutor so that the –

Dean: That’s what I was going to ask you.

Mike: – DWI charge – they charge bargain in New Hampshire. They do not charge bargain in Massachusetts, it’s either plead to the OUI or fight it. In New Hampshire with the appropriate case, with the appropriate case means I could win it. I know there is always a chance I could lose it – I’ve got some legal issues that I present to the prosecutor and he or she and I agree that given the status of this case, we are going to work it out and plead it out to something other than drunk driving, and the most common example of that is reckless driving.

Dean: Is this a trial by a jury or just by a judge?

Mike: In Massachusetts you are entitled on a first offense and any other offense to a trial before a jury or a judge.

Dean: I see.

Mike: But it’s not both, it’s one or the other.

Dean: Okay, got it.

Mike: On a first offense in New Hampshire, it’s a class B misdemeanor, which carries no jail sentence, which means you are not entitled to a lawyer. They won’t appoint a lawyer for you like they will in Massachusetts –

Dean: I see.

Mike: – to qualify, and therefore you only have a bench trial. There’s no jury, so back in the day when I was trying more cases than negotiating them, I would have weeks where I might have had four bench trials in one week in New Hampshire, and a bench trial was usually a two hour affair, maybe a one hour affair before a single judge as opposed to a jury trial, which might take you the full – you’ll be there from 9:00 to 4:30 waiting for the jury, selecting the jury, doing the jury trial itself,  sometimes into a second day – not often, but sometimes into a third day. So, that bench trial process is a quicker, more efficient way to resolve the case.

But, it’s the one single judge and I go all over the state of New Hampshire. I’ve had the pleasure of trying hundreds of cases up there before dozens and dozens of different judges, but they have their own track record and some judges are more prone to – I wouldn’t say – I find most of them, all of them fair, but some – they have their own predilections. Some of them are more likely to say “not guilty” than others, and some are more likely to side with the prosecution’s theory, because in New Hampshire, they have to prove impairment by alcohol to any degree. That’s the standard and that’s a fairly difficult standard to overcome, and there are some judges that are very likely to say “guilty” based on the evidence they hear in these cases over and over and over again.

In Massachusetts, the standard is, was your ability to operate safely a motor vehicle impaired, reduced, or diminished by the consumption of alcohol? In Massachusetts, it’s tied to your ability to drive safely. In New Hampshire, it’s impairment by alcohol to any degree unrelated to your ability to drive safely, so two different standards, I think the Massachusetts standards is more favorable to the driver, as compared to the New Hampshire standard.

Driving Under the Influence of Drugs in MA and NH (Video)

Attorney Mike Bowser talks with Dean Contover of The Current Buzz on CTM TV about driving under the influence of drugs in Massachusetts and New Hampshire.

Driving on Prescription Medications

Dean Contover: There’s some people in my age group on medication or insulin. I was just wondering what happens in that situation.

Mike Bowser: I can give you two examples.

Dean: Okay.

Mike: This year, I’ve had two separate cases, two different courts. One was a young lady that was charged – I shouldn’t say young – a middle aged lady, my age.

Dean: Yes.

Mike: Who was with her child driving home after just a family dinner. Kind of a birthday celebration. She was stopped and the only thing in her system – she was 0.00 on the breath test for alcohol. She had had one drink, but it was hours earlier, but she was on a number of prescribed medications.

And she took all of her prescribed medications as directed by her doctor, and ultimately had difficulty with the field sobriety tests and was charged with operating under the influence of drugs.

Mike: I had another one this year where the gentleman was alleged to have been high on marijuana. Had been smoking marijuana either in the car or immediately before.

Dean: They call it cannabis now. That’s the official…

Mike: Cannabis. So he had some of the cannabis on him. Which was a civil infraction. He was not charged for the crime because that’s no longer a crime, to have less than an ounce. But he was charged with operating under the influence of marijuana. In both of those cases, thankfully I resolved with dismissals and a not guilty. And they’re very difficult cases to prove, because unlike alcohol, if you were to consume a number of drinks, there’s a per se level 0.08. At which there’s a legal edict that says above 0.08, you are impaired. There’s no such level for, for instance THC, which is the active ingredient of cannabis.

Dean: Right.

Mike: In any number of the prescribed medications, if you’re taking them as prescribed and you’re within your therapeutic range for those medications, you’re not necessarily impaired.

And then there’s an element with the prescribed medications where the government has to prove knowledge. That you knew, going into taking the medications, what the side effects were going to be in combination with all the meds and you drove anyway. And that’s very difficult to prove if someone’s following the doctor’s orders and taking the medication. With the illicit drugs, they need to prove impairment, but that’s easier.

Dean: Well, marijuana in Massachusetts is not an illicit drug if for medical use.

Mike: We’re there now, yes.

Dean: Exactly.

Mike: So it’s a difficult –

Dean: It’s a new avenue or realm.

Mike: Yes. You will see – and in my own practice, given the number of DUI defense matters that I handle – I have certainly seen, over the last several years, more and more of the impaired by drugs driving charges. Both prescribed and illicit. There’s – you would not – well, you probably know very well the number of people that are on either mood enhancers, anti-depressants, anti-anxiety. Any number of medications which taken in combination or mixed with alcohol very well could impair a driver, so yes. That is kind of the next wave, I believe, of drunk driving defense and prosecution.

Driving Under the Influence of Marijuana

Dean: Right. Exactly. Because in Colorado, the government of Colorado is coming out with TV advertising not to drive under the influence of cannabis.

Mike: Which is completely recreationally legal.

Dean: That’s correct. And which has opened a new Pandora’s Box in law in Colorado, so that will filter down to the other states if they legalize it in Massachusetts or New Hampshire.

Mike: Right. There’s a program in Massachusetts and I’ve seen it in New Hampshire as well called DRE. Drug Recognition Examination or Drug Recognition Expert, and these are officers that are selected to receive specialized training in just that. Detection of those that are impaired by either prescription medications or illicit drugs.

Dean: So how will that be — they’ll have to be trained, right?

Mike: They are trained. It’s a whole different protocol than the standard. The standard battery of field sobriety tests at road side is; horizontal gaze nystagmus, follow the pen with your eyes –

Dean: Right.

Mike: – the walk and turn nine steps up, turn, nine steps back, and then a one leg stand, and then typically, well, you take a breath test.

Dean: I don’t know my alphabet, I forgot – I haven’t said it since the first grade…

Mike: What they’re going to ask you to do — they say start with a letter other than A, and I want you to start at the letter D without singing the alphabet. Start at the letter D and end at the letter N as in Nancy. Go. It’s not easy.

Dean: It’s not easy.

Mike: But that DRE protocol is essentially – it is a battery of various tests including blood pressure, pupil size, heart rate –

Dean: Right.

Mike: – plus some other tests where they try to determine what, if any, substance, you are under the influence of. It also involves a number of questions and then you get to Miranda issues, because when the DRE protocol or examination is conducted, it’s typically at a station. You already have been arrested, you’re definitely in custody for purposes of, you have the right to remain silent, you don’t have to answer questions, so they have to get through that to the point where they can conduct the protocol, so they tend to be complicated cases.