Category: OUI

You think your OUI case can’t be won? Think again!

Some attorneys look at the facts of a case and see it as impossible. We look at a case like that and find opportunities.

Recently, a client hired us who had been changed with an OUI. She was in an accident, failed the field sobriety tests, and blew a BAC of 0.24% which is three times the legal limit. Most attorneys look at facts like these and just plea guilty. They don’t see any sense in defending that case.

At Bowser, we look deeper. We investigate. We studied the case and found evidence that would help us greatly at trial. Since we knew about the science behind the breath tests, we knew that we could get the breath test result dismissed. This would greatly weaken the Commonwealth’s case.

So we prepared for trial and demanded that the Commonwealth hand over all of the evidence including the booking videos. When the first trial date arrived, the Commonwealth was unable to provide the booking videos. The same thing happened a second time and a third. We then motioned to the court to dismiss the charges and our motion was granted. Our client was spared the OUI charge and walked away very happy with the result.

The moral of the story is, good things happen when you hire a trial lawyer. There are many attorneys out there who do not regularly take cases to trial. I consider this a disservice to many clients.

As a trial lawyer, I set up the case to go to trial and held the government accountable to provide all of the evidence. Since they could not, we secured a very favorable result.

Good things often happen when you push for a trial.

Here are some case results from clients who we represented in their OUI cases:

Remember, we have handled these cases for many drivers in the past and will fight for your rights. We will not settle until we have secured the best outcome for you.

What is a Cahill Disposition in MA OUI

A Cahill disposition is a 2nd Lifetime 1st Offense. A standard true OUI 2nd Offense in Massachusetts requires a mandatory two (2) year loss of license from the sentencing Court and imposition of one of two alternative mandatory sentences, either: 14 days inpatient at a secure locked down hospital treatment center, followed by one (1) year aftercare and a two (2) year probation period, or sixty (60) days in the House of Correction with two a two (2) year probation period. The vast majority of Judges in Massachusetts will impose the hospitalization/treatment option over the jail option. However, a 2nd offense, like a 1st offense, is a misdemeanor with a maximum penalty of 2 ½ year in the House of Correction. If there was a breath test refusal at the time of the OUI 2nd arrest a three (3) year CTR is imposed by the RMV and it cannot run concurrently with the two (2) year OUI suspension.

A driver/defendant can qualify for a Cahill disposition, at the discretion of the sentencing Court, if they have only one (1) lifetime prior offense, and the prior offense (CWOF or Guilty) is more than ten (10) years before the OUI 2nd arrest date. In a Cahill sentence, the driver/defendant receives the typical 1st offense disposition, i.e. one (1) year probation, outpatient alcohol education program, standard fees and fines and a loss of license as short as forty-five (45) days. This drastically shortens the Court ordered OUI license suspension and avoids the mandatory hospitalization or jail sentence. A Cahill sentence also allows for the driver to apply for an immediate hardship license from the RMV, as they would when sentenced on a true OUI 1st offense. However, the OUI suspension is on and after any CTR suspension, i.e. three (3) year CTR plus forty-five (45) days. Lastly, any lifetime 2nd offender, regardless of whether it is a true 2nd or Cahill, must install and maintain the Ignition Interlock Device (IID) for the entire period of a hardship license plus two (2) additional years.

In my experience, a Cahill disposition is almost always obtainable on a plea disposition before trial. If a trial on an OUI 2nd Offense results in a guilty finding, even when the prior is more then ten (10) years old, a true 2nd offense sentence would likely follow, rather than a discretionary Cahill disposition from the Court. A Cahill disposition can also be continued without a finding (CWOF) but it is not as routine as on a OUI 1st offense..

Top 5 Reasons to Hire an Attorney for your OUI case Now- Even with COVID 19

We are living in truly unprecedented times. Things around us have changed so fast and created more challenges that we will have to deal with in the future.

Avoid the Rush

Right now the courts are closed for all but emergencies but when they do open, there will be a bug rush to work through the backlog of cases. At that time, many clients will be hiring attorneys and the better and more experienced trial lawyers may have too many cases and may not be able to take yours. That may leave you being forced to hire an inexperienced attorney who may not be able to defend your case well.

More time for us to prepare

Experienced Trial Lawyers need time to prepare your case. We investigate and pick apart the details to find ways to challenge the case against you. OUI cases involve a lot of science and procedural law and sometimes we may need to research and prepare lengthy documents and motions. Also sometimes evidence such surveillance videos and witness testimony may be harder to collect if you delay.

Questions about Police work

In these unprecedented times, police officers have had to change some of their procedures and the way they do things. A number of challenges may arise as to whether or not the investigation and police work was indeed valid. Again, the earlier you hire an attorney, the more chance they have to dig deep and make your case even stronger.

You don’t need this impacting your future

We don’t know what the economy will be like in the coming months. Millions of Americans are unemployed and when things open back up, the job market will be very competitive. Having an OUI conviction on your record or not being able to drive will set you back even further. Think about it from an employer’s point of view, if you have two similar candidates and one can’t drive and has a recent OUI conviction, who do you think they will hire? This is why it is important to make an investment into protecting your future.

To give you peace of mind

You certainly have a lot on your mind right now. We all do. But right now, a criminal case should not be one of them. By hiring the right attorney now, you can get this off your mind and focus on staying safe and healthy.

What is a CWOF disposition in MA OUI

The Massachusetts Drunk Driving Law, oftentimes referred to as Melanie’s Law, M.G.L. Chapter 90, section 24 includes a lifetime look back provision for establishing prior offenses to charge a driver as a subsequent repeat offender. Melanie was a child killed by a drunk driver who had a long history of drunk driving convictions, but all of them were outside the ten (10) year lookback that existed at the time of his fatal OUI crash with Melanie.

The Massachusetts law now allows State Prosecutors, Courts and the Registry of Motor Vehicles (RMV) to use any prior drunk driving disposition, from any jurisdiction, at any time during your lifetime to calculate a subsequent offense. In Massachusetts, the statute only goes up to 5th Offense. I had a prior case where it was my client’s eleventh (11th) lifetime OUI charge, but he could only be prosecuted as a 5th offender. 3rd, 4th and 5th offenses in Massachusetts are felonies, with potential prison sentences up to five (5) years and license revocations of eight (8), ten (10) and lifetime, respectively. 1st and 2nd offenses are misdemeanors.

Administrative suspensions for Chemical Test Refusals (CTR) at the time of arrest through the RMV, also use the lifetime lookback to determine the length of the CTR. They are 180 days with no prior OUI dispositions, three (3) years with one lifetime prior OUI, five (5) years with two lifetime prior OUIs, and a lifetime suspension through the RMV for a chemical test refusal with three (3) prior OUI dispositions. The only way to vacate a Chemical Test Refusal is by a Court Order following a not guilty verdict at trial on the underlying OUI charge or an outright dismissal of the OUI charge. A continuance without a finding (CWOF) disposition counts the same as a guilty finding for lifetime lookback provisions, both criminal and administratively for a CTR suspension.

There are approximately ten thousand (10,000) OUI 1st offense arrests in Massachusetts each year. Approximately 94% of these cases are resolved by way of a plea referred to as a “continuance without a finding” (CWOF). In this disposition the driver/defendant admits that the facts presented to the Court by the Prosecutor/Police at a plea hearing are sufficient to prove guilt on the OUI charge at a trial. The Judge is then asked to accept the admission, but to continue the matter without a finding of guilt entering, typically for a period of one (1) year. During the one (1) year the case is left open, the defendant is on a period of probation, pays mandatory fees/fines to the Court, suffers a loss of license, typically forty-five (45) days, but sometimes as long as ninety (90) days, and must complete the outpatient alcohol education program. A defendant waives all of his/her constitutional rights to trial with this plea, and they can be found guilty and sentenced up to 2 ½ years in jail, the maximum potential penalty, if there is a violation of the probation terms. A person on Probation for OUI cannot leave the Commonwealth without the permission of the Court and Probation Department. At the end of the one (1) year period of probation, if all conditions are met, the charge is dismissed without a conviction and the case is closed. This is not a criminal conviction under Massachusetts Law.

However, the CWOF disposition counts as an 1st OUI Offense forever, under the lifetime lookback provisions of Melanie’s Law. If a person goes to trial and is convicted of an OUI 1s Offense, the sentence provisions set forth above are the same, but a record of the misdemeanor conviction exists. Both outcomes count forever as a first offense because Melanie’s Law defines a prior OUI offense as a guilty finding or an “assignment to an alcohol education course by a Court.” The CWOF always comes with mandatory assignment to the alcohol education program. Further, the Federal Government does not distinguish between a CWOF and a Guilty finding. The Canadian government will exclude a person from entry to Canada for ten (10) years if they have a CWOF disposition on a MA OUI charge. A CWOF

disposition is not supposed to be disclosed on a C.O.R.I. check, but many potential employers, including schools, hospitals and law enforcement will see it. My experience is that Federal Agencies also see the CWOF on a background check.

A driver is not allowed to apply for a hardship license in Massachusetts through the RMV until they are sentenced by the Court on the OUI offense, on probation and enrolled in the alcohol education program. There is no right to a hardship during an administrative suspension through the RMV (CTR) or Per se (>.08 breath test admin RMV suspension) until the person is sentenced by the Court on the OUI.

In my practice, I try to instill in clients the realization that the CWOF is a 1st Offense OUI for the rest of their lives. If they want to plead out to the CWOF they can hire any lawyer they want, because the law does not allow for deviation from the minimum mandatory penalty provisions of Melanie’s Law.

Year in Review 2019

2019 was another busy year at Bowser Law for OUI/DWI defense in Massachusetts, New Hampshire and now Maine. Bowser Law concluded 138 Drunk Driving Defense cases in these three states in 2019.

85 DWI cases in New Hampshire;
49 OUI cases in Massachusetts;
4 OUI cases in Maine;

Some interesting numbers from these totals:
76 % of the total cases were resolved with a not guilty verdict, outright dismissal, or a negotiated plea to a lesser OUI/DWI offense.

15 Jury Trials with 8 not guilty verdicts.
17 Bench Trials with 13 not guilty verdicts.

In New Hampshire, where Prosecutors are allowed to negotiate with the defense for the outright dismissal of the DWI/DUI charge, oftentimes in return for a plea to a lesser civil infraction of Reckless Driving or Negligent Driving, this occurred in 43 out of 85 total New Hampshire cases. These types of dispositions are earned through knowledge, experience, preparation, research and the willingness to challenge the State’s case, even if that means losing an administrative license suspension (ALS) at the DMV in order to prepare a better defense of the DWI criminal charge. This type of non DWI outcome is incredibly important for many Massachusetts residents facing a NH DWI charge, where the collateral administrative consequence in Massachusetts imposed by the MA RMV under the Lifetime Lookback provisions of Melanie’s Law is far worse than any penalty imposed by the NH Court on the DWI. The majority of Bowser Law’s NH DWI clients are Massachusetts residents, many of whom are dealing with at least one prior OUI offense under Melanie’s Law.

Where a plea was voluntarily negotiated and entered to a DWI offense in 33 NH cases, 12 were the result of an Aggravated DWI being reduced to DWI 1st to avoid mandatory jail and extended license loss with an ignition interlock device upon restoration. An additional 12 cases were originally charged as a subsequent offense (2nd/3rd or 4th offenses) but were reduced to a lesser DWI charge and other related motor vehicle, misdemeanor of felony charges were dismissed as part of the plea negotiations.

In Massachusetts the defense is almost entirely limited to pleading to the OUI offense as charged or proceeding to trial. In 49 MA OUI cases, a voluntary plea was entered in 22 cases. 6 of those 22 pleas resulted in a 1st offense Cahill disposition, where the complaint charged OUI 2nd. One was an OUI 4th felony complaint, resolved by plea to a misdemeanor OUI 2nd. 15 pleas resulted in a continuance without a finding (C.W.O.F.) on an OUI 1st complaint. Many of these dispositions were entered for New Hampshire residents facing the MA OUI charge, to allow them to retain their valid New Hampshire licenses. This year included a critically important appeal in NH related to the NH DMV’s treatment of a MA OUI C.W.O.F. disposition. It was a Bowser Law client.

27 of the original 49 Massachusetts OUI cases proceeded to bench or jury trial or a decision on complaint applications to the clerk/magistrate (2). 21 out of 27 cases resulted in a not guilty verdict or outright dismissal of the OUI charge. The majority of these cases involved subsequent offenses under Melanie’s Law Lifetime Lookback provisions with mandatory jail, felony conviction, and extended license loss hanging in the balance.

In Maine, 1 of the 4 OUI cases resulted in a plea to a lesser offense of Reckless Driving, which was certainly important to the Massachusetts resident. The other 3 matters were resolved by plea to an OUI 1st charge, where the complaints were amended to remove mandatory jail sentences for prior offenses, elevated breath test results >.15, or refusal of the chemical test. The Maine OUI Defense practice continues to grow, especially among residents of Massachusetts and New Hampshire struggling to understand the reciprocity issues at home.

Significantly, Attorney Bowser continues to be a leading practitioner in the area of reciprocity license/privilege suspension issues between his three (3) states of practice: Massachusetts, New Hampshire and Maine. If you are facing a drunk driving charge in any of these three (3) jurisdictions please call our office to schedule an initial free consultation. A great defense travels, and plays well anywhere.

Did the Police Lie about your OUI Case?

Many drivers who have been arrested for OUI complain that what the police officer wrote in the police report is not what actually happened. What should you do if you are in this predicament?

The Police are not your Friends
There are a lot of great police officers who work very hard to protect our communities and families. However, with all due respect, the police are not your friends when you get pulled over for an OUI. The reason you were pulled over in the first place is because the officer has suspicion that you were guilty of a crime. Or, at least, that’s the legal standard required for the police to make a legal stop of your motor vehicle. The police report will highlight the reasons why the officer believes you are guilty in the police report. It will be biased against you and in some cases may not be factually accurate.

People Believe the Police are More Honest than You
There is a reason why police officers appear in court in uniform. Judges and jurors naturally see that uniform as a symbol of authority and are more likely to believe the officer than you. Afterall, you are in that court because you (allegedly) committed a crime. It is very important to understand this psychology and understand how the deck is truly stacked against you. Even though there is a legal presumption of innocence until proven guilty, in the minds of many judges and jurors, it is the other way around.

Attorney Mike Bowser gives you the Advantage
Overcoming the testimony of the police officers can be very difficult, especially when they have a blood or breath test showing a result that is over the limit. This is why you need an experienced OUI Attorney. With over 25 years of experience, as well as strong trial skills and an understanding of the science behind the tests, Attorney Bowser puts you in a strong position to receive a positive outcome in your case.

One key to defending OUI cases is to present evidence that shows that what the police officer is saying is not the complete story. In other words, diminish the credibility of the police officer who is testifying against you during cross examination. To do this, Attorney Bowser carefully studies the evidence and meticulously prepares each case. Attorney Bowser has mastered the art of successful cross examination and takes on your case to fight and protect you.

If you have been charged with an OUI, please call 888-414-9202 today for your free case consultation. Your case deserves an aggressive defense.

Why OUI Marijuana Cases Should Go to Trial

While recreational marijuana is legal for adults over the age of 21 in Massachusetts, it is illegal to drive under the influence of it. This is why we are seeing more and more arrests for OUI marijuana, as drivers are becoming lax on its use.

However, marijuana OUI cases remain very difficult for the government to prove, if you have the right attorney. Attorney Mike Bowser has NEVER lost an OUI marijuana case. In the video below, he touches on some of the common issues in these cases.

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.

Why Experience Matters: Jury Selection

There are plenty of DUI attorneys out there. Each one has a different level of experience and a different way of handling cases. Some attorneys try to simply negotiate a plea in every case. We are not that firm.

At Bowser Law, we pride ourselves on fighting for the citizens accused of a crime. We take cases to trial to fight for the best possible result for our clients. When you decide to fight, experience matters. Attorney Bowser’s results prove his success.

In this blog series, we will detail some examples of how experience makes a difference in DWI/OUI cases. Previously in this series, we have covered:

Today we will look at Jury Selection.

“A jury consists of twelve persons chosen to decide who has the better lawyer.” -Robert Frost
If your DUI cases goes to a jury trial, there are many steps a good attorney needs to take in order to put you in the best possible position. One of the most important steps is selecting the right jurors. These are the people who are going to decide between innocent and guilty and it is extremely important to have jurors who can maintain a favorable mindset.

Recently, I was having dinner with a friend who has never consumed an alcoholic beverage in his life. While he is an honest and fair man, he is not someone I would want on a jury for my clients because he has no frame of reference about what intoxication is, how many drinks it takes to impair a person and how alcohol affects people differently. He would be in over his head on a jury in a DUI case.

This is just an example of why you need an experienced attorney selecting the jury for your case. It is important to understand psychology, personal background, religious views and a host of other factors which may influence a juror or create a bias.

Attorney Mike Bowser has experience selecting hundreds of juries and questioning thousands of potential jurors. Real experience with jury selection is something that many attorneys simply do not have. Attorney Bowser’s results prove his success in selecting favorable jurors!

If you have been charged with a DWI/OUI and want to have the better lawyer, 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.

Why Experience Matters: The Art of Cross Examination

There are plenty of DUI attorneys out there. Each one has a different level of experience and a different way of handling cases. Some attorneys try to simply negotiate a plea in every case. We are not that firm.

At Bowser Law, we pride ourselves on fighting for the citizens accused of a crime. We take cases to trial to fight for the best possible result for our clients. When you decide to fight, experience matters. Attorney Bowser’s results prove his success.

In this blog series, we will detail some examples of how experience makes a difference in DWI/OUI cases. Previously in this series, we have covered:

Today we will look at The Art of Cross Examination.

Strategically pulling apart a witness’ testimony is one of the most effective ways of winning a case.
Winning DUI cases takes a lot of preparation, strategy and guts. It is not easy to stand face to face with the police and question them about the details of your case.

During cross examination, your attorney will have to do just that. A good trial lawyer will question the government’s witnesses and show why their testimony and evidence is not reliable enough to support a conviction. This is where experience counts. To cross examine a police officer, an attorney needs to know the correct procedures the police are supposed to follow. To cross examine a lab technician, an attorney needs to fully understand the scientific methods and protocols that blood tests are based on. Cross examination requires strategic planning, confidence and knowledge.

Attorney Mike Bowser is at home in the courtroom. His cross examinations are crisp, clear, and confident. Each question is meant to build a story which exposes holes in the government’s case. Attorney Bowser has been doing this over 25 years and has perfected his craft and approach. There is no substitute for that level of experience.

If you have been charged with a DWI/OUI and want to fight your case in court, 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.

Why Experience Matters: Knowing Your Options

There are plenty of DUI attorneys out there. Each one has a different level of experience and a different way of handling cases. Some attorneys try to simply negotiate a plea in every case. We are not that firm.

At Bowser Law, we pride ourselves on fighting for the citizens accused of a crime. We take cases to trial to fight for the best possible result for our clients. When you decide to fight, experience matters. Attorney Bowser’s results prove his success.

In this blog series, we will detail some examples of how experience makes a difference in DWI/OUI cases. Previously in this series, we have covered:

Today we will look at Knowing your Options.

Just because your Blood Alcohol Content test has a number above the legal limit, doesn’t mean you are doomed.
In America, a DUI charge is not an automatic conviction. Just because there is evidence against you and a breath or blood test that shows a high number, the government still has to work to prove their case. The difficulty for prosecutors becomes compounded when they are faced with a trial attorney with the caliber of Attorney Mike Bowser. He is one of the few attorneys who regularly takes DUI cases to trial. Prosecutors know and respect Attorney Bowser’s reputation and oftentimes really do not want to go to trial against him. Attorney Bowser uses this leverage to his clients’ benefit.

After careful review of all of the facts and evidence in your case, if Attorney Bowser feels that taking your case to trial is too risky, he uses his leverage with the government to negotiate the best deal for his clients. The important thing that many attorneys overlook is that what may be a good deal for one client, may not be a good deal for another. An example of this is with CDL drivers. While a reduction to a lower DUI/OUI related charge may be a great move for one client, it could trigger a career ending suspension for a CDL driver. Knowing your options and knowing what the prosecutors are willing to give, makes a big difference. This is where experience really matters.

That is why it is important to know and understand each and every client. At Bowser Law, we stand out about the rest. We approach cases with precision and care. We want to meet you in person to better understand your situation so that we can structure your case to put you in the best possible position.

Knowing your situation is the first step to securing the best outcome for your case. If you have been charged with a DWI/OUI and want to fight your case in court, 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.