Category: OUI

OUI and Personal Injury – Expert Network Interview, August 3, 2016

Teddy Panos and Leslie Bodor from Expert Network Interview speak with Attorney Mike Bowser on multiple topics, including Massachusetts and New Hampshire OUI/DWI charges and personal injury cases settling or going to trial.

Teddy Panos: Time to welcome in a member of our expert network, attorney Michael Bowser from Chelmsford. Good morning, counselor, how are you sir?

Mike Bowser: Good morning, Teddy, good morning, Leslie. Excuse me, how are you?

Teddy: We’re doing well. Long time no chat. How have you been?

Mike: Busy. Very, very busy.

Teddy: When you touch base and said, let’s come in and have a discussion, I thought, “Is it the night before Thanksgiving already? Is it New Year’s Eve?”

Mike: No, that practice continues to roll right along.

Board Certified OUI Specialist

Teddy: It certainly does. Look, you’re a very, very well-known, you’re renowned for your work as an OUI specialist. One of a handful — was it only about five certified in all of New England, correct? Board Certified?

Leslie Bodor: Which make a difference. Yes.

Personal Injury Practice

Teddy: You do all sorts of other practice, you do an awful lot of personal injury work?

Mike: I do. I’ve done that literally since law school. I ended up with a large firm when I was in law school that did a ton of personal injury work and I caught the bug then and it’s always stayed with me. It’s always been a part of my practice and ironically some people were surprised to find out that I in fact, handle those types of cases. By experience, by reputation I have always tried one or two of those a year. The nice transition is I try 40 or 50 jury trials a year on the OUI in the criminal side and it leads to an ability to walk into a courtroom on a serious personal injury matter and I’m able to stand up in front of a jury and try some cases successfully and I always have.

I’ve had some very, very big verdicts over the years and thankfully, I’ve also had some decent settlements because the courtroom process is just fraught with risk. It’s very difficult. I think one of the hardest things a lawyer can do is to walk into a courtroom and convince a jury of 12 people that his client is actually deserving of compensation or their protection. That’s how I try to phrase it. This person is worthy of the protection that a jury can provide. It is one of the hardest things I do, is try a personal injury case to verdict and I’ve had it both ways. I’ve had tremendous success and I’ve had some heartbreaking losses. Had a couple of those recently and you learn from experience.

Teddy: You were just talking off air about a case that you thought you had won. As a matter of fact, close to the verdict the other side offered you a settlement that was above what you would have accepted at one point.

Mike: It was a classic example of the risk associated with a trial. It was a slip and fall and people say slip and fall and they just think, “God, you fell on a banana peel,” but it was at a supermarket. There was a large area of water and it was marked with a single cone at the front of an aisle. My client [of] 78 years old came from the back of the store, the back of the aisle, she couldn’t determine where the wetness ended or started. She moved away from the cone and she hit some dampness about 12 feet from the cone and took a really nasty fall and broke some ribs and [experienced] a back injury. Serious injuries and at the mediation prior to going to trial, they offered like $13,000.

We probably would have settled for $40,000, and then you fast forward three months later and thousands of dollars more in expenses and hours and hours of preparation. I’m in the midst of a jury trial and literally as I walk into the courtroom to start my closing argument, the very last piece of the case before the jury gets the deliberate, the store lawyer said, “Will she take $50,000?’’ And he didn’t give it to me, but he wanted to know would she take it if I can get it.

I was kind of pissed actually, because I’m like could you wait any longer before come to your senses and putting fair money on the table and my client at that point was eighty years old, and she said to me I want you to finish because she was very proud of the work that we were doing and she wanted to finish. The jury got the case. They came back an hour and a half later with what’s called the defense verdict meaning they found no liability on the half of the store. The judge was shocked, I was shocked, the defense lawyer was shocked, my client was shocked, and we got the end result with zero.

Teddy: I’m always fascinated about how the mechanics of these types of decisions work. When you say there was a settlement offer made and you said that your client decided, “No, I don’t want to accept this.”

Mike: Ultimately it’s their decision, right?. My job again, I’m in the protection business, so my job is to protect my client. And in the injury practice, that’s to recover for them as much money as I can and what I think is fair money. And I tell people all the time, “I think that’s fair, that’s a decent offer [and] you should consider taking it.” If I don’t I’ll say “I think that’s garbage and we should keep going.”

The only pressure that I can put on the other side is trials. I put almost everything into suit and I move cases towards a trial date as quickly as I can. By way of example, I had one this year where the woman came to see me there was an $11,000 offer on the table two weeks before the statute of limitation [ran out]. She had no lawyer and I took the case. We put it into suit and you fast forward a-year-and-a-half later and we settle that for $60,000.

Obviously, we were able to get her what was decent, fair money. Had she not pursued it, the statute of limitations would have run [out and] she would have accepted a very low ball offer. We had another one that was $6,000 on the table and we settled it for $35,000, and these cases are in context. You say $60,000, $35,000, but for each one of those cases, that was fair money. That’s my breakpoint if it’s fair you should consider taking it because God knows what can happen in a courtroom.

Teddy: As you’ll see, these kind of things happen all the time and if a company offers a settlement early on in any kind of thing, my advice would be, get a lawyer. Don’t ever accept the settlement. At least chat with an attorney to determine what your rights and your possibilities are, because even when a company acts like they want to do the right thing and is concerned and sometimes maybe they are being fair. They’re not going to give you what they would normally give you if you pursue the matter forward.

Mike: From the other side, almost exclusively dealing with insurance companies, some companies are self-insured, meaning it’s their money. They handle their own claims in-house with their own dollars. Almost 90% of my cases are with an insurance company. The insurance company’s goal is to get out of that case for as little as possible.

Teddy: And get to the side before it ever get to court.

Understanding Liens

Mike: My job is to get as much money out of that case before trial. Those two positions never meet. It’s difficult and one of the other things that we deal with which people don’t understand is liens. In the Commonwealth and in New Hampshire [you might] have BlueCross BlueShield or Tuffs paying your bills because you [had an accident]. We had a motorcycle case where the lien [for] the treatment that he received that was paid for by his health insurance was $99,000 and there was just not enough insurance on that particular case.

I ended up getting the $99,000 lien reduced and paid off to $12,000, so that I was able to put the difference in my client’s pocket and sometimes that’s the best work that we can do is just reducing the lien so that the net recovery for the client is higher because there was never going to be more than X amount of dollars on that case because of the lack of insurance. That’s part of it as well.

Teddy: $99,000 is not a lien that’s a complete fall over.

Mike: Given the treatment that he received and the surgeries and the injuries, I mean that was the value and the cost of his treatment. By law, you have to pay it back if you recover against a third party. They’re entitled to get it back.

Personal Injury Cases that Go to Trial

Teddy: The story you told of you being shocked at the verdict, the opposing counsel being shocked and the judge being shocked, that highlights why in most situations there’s a settlement, right? What percentages of cases actually go to a trial and especially to a jury trial?

Mike: I mean in my practice, less than 10% of these cases go to trial. I always say try one or two a year and in the one or two that you try a year, it’s because there’s an issue as to liability. They just not necessarily damages. Usually, a lot of times there’s an agreement. Yes, your guy was hurt.

Leslie: But we don’t admit.

Mike: But we don’t admit that we caused the condition that caused the [injury]. I had one in Boston years ago, [a] slip and fall on a construction site and they offered me $200,000 workers compensation [and the] lien was $300,000. I mean that’s a net zero recovery if I were to take that money. When I said I wanted $800,000, they laughed at me. Then I got a jury verdict in Suffolk County and the net recovery was $892,000. That case went to trial because it was a liability. We had three different subcontractors and a general contractor, four different defendants and it was a really complicated, really expensive case [and] they didn’t think I could prove the liability issue.

Teddy: Generally, juries are unpredictable. You never know what they’re going to do behind those closed doors.

Mike: I love the process. I’m very comfortable trying cases to juries, but when you hand it over to them, you lose control. You get your base. You’re handing it to them and they’re going to do what they may and it can be very unpredictable. I’ve had wonderful success doing it but I’ve also had heartbreaking defeats, so that’s the nature and if you’re not willing to try cases . . .. My associate, my poor associate who does wonderful work, her name is Molly Bellai. The last two that have gone to trial since she’s been with me have been defense verdicts and we’ve had all kinds of great settlements and she thinks she’s a jinx.

Teddy: I’d fire her.

Leslie: Maybe a vacation for a week.

Mike: I said if you’re not willing to try the difficult cases to verdict then you don’t deserve the decent settlements that you get. That’s the way I approach it. I mean I’ll try anything if I have to, and as a result we’re fortunate to get some decent settlements. 

When Judges Can Take Cases from Juries

Leslie: I was just curious about the judges, is it possible for a judge to step in like they do on occasion for a verdict?

Teddy: They see that on TV right?

Leslie: Well, the shake baby nanny from England.

Mike: Sometimes a judge will take a case from a jury.

Leslie: Because you said he was even shocked.

Mike: No, he was but he wasn’t going to take that decision away from them. It’s a judgment notwithstanding the verdict, meaning the judge just thinks they got it dead wrong. No jury in the world should have reached that verdict and upon request, a judge can insert himself or herself into the process and say “Yes, that verdict must be set aside.” That’s extremely rare.

Leslie: Okay.

Mike: Extremely rare.

Breathalyzer Testing in OUI Cases

Teddy: It is 7:29 here on 980WCAP chatting with Attorney Mike, member of our expert network. A couple minutes remaining, I want to to get an update if we can on the breath test.

Mike: Sure.

Teddy: We saw the issue, you actually kind of broke it here on the radio, that there was an issue with those machines not giving proper readings they weren’t

Mike: Calibrated properly.

Teddy: As a result, thousands of cases were called into question. Where are we with that?

Mike: There was a calibration issue with the machines in general that was identified by the government kind of late and disclosed to the defense bar. But also, there’s a challenge to the scientific validity of the breath testing device in the software. That type of challenge has been made against DNA, fingerprint, [and] trace evidence.

Any scientific evidence that goes before a jury is subject to a judge first determining whether it is scientifically acceptable so that jury can hear it. That had never been done with the breath testing device that’s in use. So hundreds of cases were consolidated because when they said you can challenge it, the supreme court issued the Camblin decisions and you can challenge it as a defense lawyer. Then they realize, “Well, wait a minute, now we’re going to have hundreds and hundreds and hundreds of these scientific hearings before judges across the Commonwealth.”

They consolidated them all before one judge and conquered. The BMC had its own consolidation and now those two groups are put together. They’ve given us access to two machines, so the manufacturer is actually handing over to the devices so that we can do what’s called dynamic software analysis, meaning we can test the software. Whether it’s robust, whether it’s accurate, whether it’s reliable.

Teddy: No, not word robust.

Mike: On the platform of the machine as opposed to doing it. They wanted us to do it just as a white, like a black box. They’ll give us the software on a flash drive and let us play with it on the computer but not through the machine itself. Now we’re at the point where we’re getting the machines, were going to get the software. It won’t be decided until November. We probably won’t have a final decision until 2017. All of these breath test cases that are awaiting, the decisions are going to be backed up in the courts until probably 2017.

Teddy: If you guys find that there’s something awry with these machines, we’re talking about amazing implications here, massive implications right?

Mike: The first level would be whether it affects the admissibility of the test. Meaning, if there’s a decision that comes down and says, “Yes,” that it’s defective per se or unreliable per se, every breath test may be excluded. I think probably where we’re going to end up is we’re just going to learn a whole lot more about the machine and how it works so that we’re able to attack the reliability of it and it will go to the weight of the evidence versus the admissibility.

Leslie: Right. The last thing I’m asking you is the breath test. I’m doing other things. This walk and turn. There’s other test to tell me [if someone’s intoxicated]. Even if you strike out a breath test, if you’re did a good work on the side of the road and you documented your case well, you won’t necessarily need that anyway.

Teddy: Lastly, you are board-certified here in Massachusetts, but also in New Hampshire. You have an office in Nashua, correct?

Mike: Yes. I’m going there right now.

Leslie: That was the ending of case by the way.

Teddy: How many Massachusetts clients do you get in New Hampshire? Because I always used to joke, I used to date a girl from Nashua. Every single night I was under suspicion of DWM, Driving While Massachusetts.

Mike: Yes. Massachusetts plates after dark.

Teddy: Those New Hampshire cops love to see a Massachusetts license. They escort you back to the board. They are so nice.

Mike: No, they don’t escort you back.

Teddy: They followed me all the way back to Things Road, tell you that much every night.

Leslie: Well, because half of them live in Massachusetts. It’s like they’re on their way home, Ted.

Mike: My practice is probably about a 150 or so drunk driving cases a year. I’d say about 65% of those are New Hampshire and 90% of my New Hampshire cases are Mass residents.

Teddy: I’ve always wondered what is the percentage of drivers pulled over, either cited or pulled over for a DWI in New Hampshire that are Massachusetts. I am willing to bet and I don’t have any statistical evidence but you might have just offered some that they disproportionately pull over Massachusetts drivers.

Mike: I would disagree.

Teddy: You would?

Mike: But I would agree that the highest percentage of non-resident DWI arrest in New Hampshire is Massachusetts people.

Teddy: Well, that makes sense.

Mike: It [does].

Leslie: It is a good discussion topic, Ted.

Mike: My practice up there goes from Laconia, Plymouth, Lancaster, Berlin, Portsmouth . . .

Leslie: Wow.

Mike: Hampton, Seabrook. There is no border between Mass and New Hampshire. People go back and forth daily.

Teddy: There isn’t between Texas and Mexico either, so don’t feel too bad.

Mike: Okay.

Teddy: Folks, as we always like to say, folks, don’t make the decision, don’t make the mistake to ever need counselor Bowser service for operating under the influence but we know that these things happen. Of course, if you’re looking for a good personal injury attorney, then please make that decision and get counselor Bowser. Either way, how do folks get in touch with you or your practices in either State?

Mike: The easiest way is the website, which is https://bowserlaw.com/ and we do have chat services, contact forms, and all the phone numbers are there for both Massachusetts and New Hampshire.

Leslie: I think it’s important to call because if you have a case, there’s a statute of limitations on some of these cases that you may not be aware of. At least make the call. Have your dates and your information handy and they’ll be able to tell you right off the bat. It’s an important call to make. Statutes of limitation are tricky.

Teddy: A lot of these instances, especially an OUI cases, come up late at night, early morning, [in the] wee hours. That way if people get to that website, they’ll be able to contact you. There’s a way to monitor 24 hours?

Mike: I get every time someone hits my website for purposes of contact, I get an email, a text, and I do, I spend a lot of time on the weekends just responding to folks and reaching out to them. Getting back in touch with them and certainly, I do my appointments on evenings and weekends for that reason because I’m usually tied up in several courtrooms every day in both states, so I do a lot of evenings and weekends as well.

You’re not going to get me [at] three o’ clock in the morning. I was in London in June and I got a phone call and I just didn’t respond to that one because it was 3:00 AM London time and didn’t get back to him until the next day.

Teddy: Hey, any idea where they’re going to set up that sobriety checkpoint now?

Mike: Is that off limits? No?

Teddy: It’s probably going to be very soon. That’s going to be used as parking for residents and commercial properties. So I’m thinking I have to set up shops somewhere else.

Leslie: It’s being reheld.

Mike: Yes, I would imagine probably further in.

Leslie: That’s got to stay there by law.

Teddy: There’s really not a good pull out area.

Mike: Right.

Teddy: That’ll be interesting.

Mike: It will be.

Leslie: They’re figure it out.

Teddy: Counselor Bowser, one more time, the web address is?

Mike: bowserlaw.com.

Teddy: Member of our expert network, attorney Mike. Always a blast to check in with you sir.

Mike: Thanks for having me.

Teddy: I should have gone to law school.

Leslie: Thank you, my friend.

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.

OUI Roadblocks & Driver’s Rights – Expert Network Interview December 31, 2014

Learn about OUI roadblocks and what a driver’s rights are during a traffic stop by a police officer. Board Certified DUI and OUI attorney for Massachusetts and New Hampshire offers information about how to avoid charges and what to do if you’re arrested.

Teddy: Member of our expert network whose joining us in the studio right early this morning. Attorney, local attorney, Michael Bowser. Good morning counselor. How are you, sir?

Mike: Good morning, Ted. Doing well. How are you?

Teddy: I’m doing very, very well. A belated Merry Christmas and early happy new year to you.

Mike: Same to you. Thank you.

Teddy: Busy time of year for you?

Mike: Yes. Actually, yes.

Drinking and Driving Around Holidays

Teddy: We certainly encourage people not to. I don’t want to put you out of business but I’m telling people, don’t require Attorney Bowser’s services by doing something stupid tonight. My hunch is your phone is going to ring once or twice late tonight or early tomorrow morning.

Mike: I certainly have a few calls over the weekend.

Teddy: Really?

Mike: Yes.

Teddy: The holidays are a bad time for folks not paying attention to the fact that they shouldn’t drink and drive.

Mike: They are. They had a roadblock in Lowell last weekend so I’ve picked up already few of those cases from that roadblock.

Teddy: Listen. Anybody who is driving in our city or coming to our City of Lowell. Holidays especially, there are going to be roadblocks. You have to know that by now. If you have any clue, you know that they will be going to put roadblocks out of this time of the year. Don’t you?

Mike: They do. They’ve put the roadblock up on Gorum Street by the Thorndike Factory. It is there at least three to four times a year and it’s almost always around the holidays, whether it would be Halloween, Thanksgiving, Christmas, Memorial Day, Fourth of July. It’s a fairly routine practice for them to set up at that particular location. As I said, at least three or four times a year.

Teddy: Now, the folks who do get caught on these days aside. New Year’s Eve certainly, since the attention. I remember the Mothers Against Drunk Driving and Students Against Drunk Driving and the focus beginning in the late ’70s, early ’80s. New Year’s Eve is not the crazy night on the roadways that it used to be. Is that a fair assessment?

Mike: I think people are extremely cognizant or aware of the dangers of drunk driving, so I think it has. I was just looking at statistics from a roadblock in New Hampshire where they gave the yearly statistics of arrest. Year to year in New Hampshire, they’ve dropped and they consistently dropping, and that’s the trend. I think that’s based on the education and the approach that people take now.

Teddy: That is the goal behind it. That is the end result they are hoping for. They don’t necessarily want to arrest people for drunk driving. They want you to know that they’re out there and they want to keep you from drunk driving and it appears, at least by the evidence, that it’s working.

Drunk Driving Roadblocks

Mike: One of the biggest pushes behind roadblocks is enforcement [and that] is certainly part of it, but deterrence. They absolutely want to publicize the fact that there’s going to be a roadblock. They want to have a high visibility roadblock. They want as many people as possibly aware of the fact that it’s there. Although, I don’t think they always do a great job of promoting the fact that it’s going to be there. But that is one of the factors, is the deterring effect. They want a high visibility presence enforcing drunk driving laws.

Teddy: How cut-and-dried are those cases? You’ve represented folks who had been stopped at roadblocks and then charged. Is it a cut-and-dried case?

Mike: Never. It’s like any other OUI case or DWI case. They’ve very facts specific. I had one this week up in New Hampshire. It was a roadblock case arising out of bike week. I know several people were arrested at the roadblock. My office, my firm, we were the only ones that actually challenge the validity of the roadblock as conducted and we ended up getting a very good result because of the arguments that we made regarding the roadblock.

Teddy: What are the rules? What makes a roadblock valid or potentially invalid in the eyes of the law?

Mike: Well, we were ready to challenge the statistical validity of the particular roadblock and the location that they’ve chose because they’re supposed to choose a location where there’s been high incidences of DWI arrests. In this particular location, they have not. They predetermined sites selection and you would hope that they would use a good site, because they know they are going to be stopping people at a particular spot in doing field sobriety testing and this location was quite the opposite. It was a dirt parking lot, not well lit and actually that’s one of my issues with the Thorndike Street location. The parking lot is a mess and oftentimes, that’s exactly where they have people doing field sobriety tests across the cracked and potholed lot. I don’t think it’s a great spot for field sobriety testing.

Teddy: That Thorndike Street site is generally where they do one if they going to do one in Lowell?

Mike: Always. I’ve seen them in Billerica. I’ve seen them in Tewksbury but predominantly they going to be deployed at Thorndike Street in Lowell.

Teddy: Is it generally on a very well traveled road?

Mike: Always.

Teddy: You never see them on highways. The actual Route 3495 . . ..

Mike: No. It’s Route 114, Route 38, Thorndike Street, Route 110.

Teddy: The road’s steep off the highways.

Mike: It’s usually a main thoroughfair leading to and from either a busy downtown area towards a highway. It’s always a site where they have traffic coming in both directions that they can track to a roadblock.

Field Sobriety Testing

Teddy: I always go back. It was this year. This last year, you actually gave me the field sobriety test on the air. The last time I had a beer was like on a Saturday night. Counsel Bowser was in here on a Thursday. I took the field sobriety test with nothing but coffee in me. As I said, the last beer I had was five days before, I’ve flunked it.

Leslie: What? The walk and turn?

Teddy: Right here. I did the walk and turn. I didn’t follow the directions. I didn’t turn well either.

Mike: It’s not easy.

Leslie: You know how many of those I’ve given? Oh, my God. I worked the highways for ten years on the safe place. And there’s never a flat-level, ungraveled surface on a highway. You’ll kazam in a breakdown lane.

Mike: And that’s right, exactly the arguments some of them make. You’re going to do this field sobriety test in the breakdown lane of Route Three or 93 at one in the morning.

Leslie: That is correct. A woman with high heels on.

Mike: With tractor-trailer, with highway traffic and it’s never a perfect situation.

Teddy: Well, if a woman is wearing heels, you make them still wear them?

Mike: Two inches or more.

Leslie: Take them off.

Teddy: Do they know that they can take them off?

Leslie: I’d tell [them to] take them off.

Mike: Right. Because of the statistics and the studies and the research behind field sobriety testing will say that they are not necessarily valid for people that are 50 pounds or more overweight, people that are elderly, people wearing heels, [or] people with injuries to their legs, back.

Leslie: But this is the problem. I can allow you to continue in other foot if I suspect you for being operating under the influence. I’m only given a certain little area to perform these mandated test that I have to perform prior to coming to my conclusion whether you’re intoxicated or not. So now, I have to deal with what I am given in the parameter of the law and if that means a breakdown lane on 93. I worked out at the end-over barracks.

Mike: My favorite barracks.

Leslie: You’re wearing heels, they’re coming off. But he has an argument, “Well, I stepped on a rock and my feet hurt and there was glass.” But what’s my choice? I don’t have a choice.

BAC Testing

Teddy: Are those field sobriety tests? If the officer determines it’s a positive result for an under the influence driver. Are they then followed by a breathalyzer or a blood alcohol [test] – some kind of a blood test?

Mike: They are followed by a request for a breath or blood test.

Teddy: On site?

Mike: No. Sometimes now they use PBT — a portable preliminary breath test — which is not admissible en masse. But in Massachusetts,  where one of the very few jurisdictions in the country where if the request is made for either field test or blood or breath and there’s a refusal. The refusal is inadmissible in a courtroom so the trooper who made that request is not allowed to testify before judge or jury that “I asked Mr. Panos to take a breath test but he refused.” That doesn’t come in Massachusetts.

Teddy: But it does in New Hampshire?

Mike: It did does in almost every state in the country. We’re one of only three jurisdictions in the country that has that rule.

Driver Rights

Teddy: Now, we’ve talked enough a lot about this over the last couple of years where you’ve been on as a member of our expert network and I somewhat know the rights of the driver in these situations. But there are still some that I’m a little bit fussy and you’ve actually decided to hold a seminar coming up in the New Year, right?

:Mike: I’ll be doing the seminar on January 8th at 7:00.

Leslie: My birthday.

Mike: Happy birthday.

Teddy: He picked the date strategically.

Mike: That will be at Mount Pleasant Upstairs at the Mount Pleasant Golf Club.

Leslie: And I’m a guest speaker.

Mike: Yes, and it’s knowing the rights of the driver. I’m hoping to put in into an hour. A presentation of all the things that we have discussed. The number question I get from people is what do I do if I get pulled over. That’s an easy question for a lawyer to answer. What is not easy is to explain to people the consequences of all of those decisions that they’re going to make because it’s very easy to tell people, “Yes. Refuse the field test. Don’t take a breath or blood test.” But if you don’t know the consequences of that decision, then I’m not doing my job because there are suspensions that come into play and based on license back from lifetime suspension. A lifetime suspension.

Teddy: He got a not guilty but he’s got a license suspension?

Mike: Lifetime because he has three prior OUIs over the course of his lifetime.

Leslie: Can he get a seven of seven?

Mike: He can get anything unless the judge reinstates it.

Teddy: Was his license suspended before the fourth one?

Mike: No. He had a valid license. No. He hasn’t had a conviction in 18 years.

Teddy: So then how can they hold his license?

Mike: This is what I’m saying. The consequences of these decisions, “Don’t take a breath test.” In Massachusetts, in every state, there’s an implied consent law. At the time of your arrest, when you make that decision, “Am I going to take the test or not?” If you fail it and blow over, you’ll lose your license through the registry for 30 days in Massachusetts. But if you refuse that test depending on what your prior record is, the suspension that’s put into effect immediately is up to life depending on your prior record, so I got him a “Not guilty.” He still doesn’t have a license for his lifetime unless I get the court to give it back to him.

Teddy: And to me that sounds grossly unfair, at the risk of alienating my former state trooper friend here.

Leslie: No. I think very fairly.

Teddy: If a court finds you not guilty, to me it’s cut-and-dried. You get your license back whether you took the test or not.

Mike: It’s up to the court, you’re entitled to an immediate hearing before the judge to determine whether your license will be returned, it’s what’s called a rebuttable presumption, it’s presumed that the license shall be returned unless the government can ensure that you are a public safety risk. And I’ve certainly had not guilty verdicts on third offenses, in fourth offenses and what probably were fifth or sixth offenses in the eyes of the court.

Leslie: Shame on you.

Mike: They don’t want to give the license back if the government can give them a reason, and most often it’s the driver’s history. The person has a very long, painful driver’s history including OUIs and sometimes the government is able to rebut that presumption that public safety will be served, by giving them their license back.

Leslie: But again too, like I was telling you, it becomes a judiciary issue at this point. The police have done their job, you’ve been locked up after I’ve done whatever I’ve got to do, I have a list the things and I need to do and follow, because I kind of presume until the very end. Once I have made that determination, I give you the option to take a breathalyzer. If you’ve been involved in an accident and you are incapacitated, that now becomes a hospital issue where I will take blood from you. But there are [rules there too]. I kind of have an inter-coagulated tube [and] there has to be a nurse, not a phlebotomist.

There are a lot of rules that we have to follow to get blood from you. If you cannot consent the blood, then we subpoena the blood. So what happens is, it’s a whole litany of things that do happen, but once the license is surrendered, it’s not my obligation to tell you whether you should take it or not or what the ramifications are. I however would tell you, because if I see a baby seat in the back, you know we have an issue here. He might be the only driver, you could be the only one that of a thing. But it’s up to the court to quicken up this pace, this gentleman, like he said, he’s gotten off for the fourth, he hasn’t had one in 18 years, that’s the court — give him his license back.

Teddy: So the seminar is January 8th. Do you want people to pre-register can they just show up?

Mike: No, it’s open, and I’m actually charging a $5 cover for some appetizers and will donate that money to charity, but I’m hoping to have a full room. I hope to get a lot of young people. I’d love because it’s Christmas break still for a lot of college kids. I’d love to have some parents bring up some young kids, because the rules that apply to those under 21 are even more stringent than for an adult and so there’s a lot that kids need to know.

Leslie: They could also get kicked out of school for it too. UMass Amherst as an example, if you’re caught [on an] OUI and you are a student and you are caught around their campus, you can also be suspended or expelled, so it’s a great seminar for college kids and parents actually to go to.

Teddy: What time does it begin?

Mike: 7:00.

Teddy: 7:00, January 8th, Mount Pleasant Golf Club in Lowell.

Mike: Upstairs.

Teddy: Upstairs, and again we always tell people whenever you join us in the mornings, we don’t want you to call Attorney Bowser at night, and the best way to do that is, don’t do anything stupid. If you’ve had anything to drink, if you even question whether you should be behind the wheel of a car, you already know your answer if you have to question yourself. Don’t do anything stupid. Invariably, counselor, we know some folks are going to do something stupid, and if they need that help so that they don’t end up in a situation where they’ve lost their license and a chance to make a living for a lifetime perhaps, what is the number should we need your services.

Mike: The phone number at my office is 978- 256-2700 and the website is https://bowserlaw.com/

Teddy: And if you leave something on the website it automatically goes to you.

Mike: I get updates by text and email if you hit my website over the weekend or at night-

Leslie: I might be calling myself.

Mike: I get some immediate notice.

Teddy: You do work New Year’s Eve and you do work New Year’s day, you won’t ignore calls because you are watching that college football playoff system for me right?

Mike: Yes. People are looking for answers and help. I pride myself on getting back to them on nights and weekends just to put them at ease as to what’s going to happen the next day usually, which is going to be their arraignment.

Leslie: That’s important.

Teddy: Attorney Mike Bowser, joining us as a member of our expert network, counselor, Happy New Year to you I hope you have a quiet day tomorrow with the folks.

Mike: Thank you, Happy New Year to you too as well.

DWI/OUI Law & Impacts on License – Expert Network Interview December 31, 2013

Attorney Michael Bowser discusses DWI/OUI law in Massachusetts and New Hampshire, how these laws can impact your driver’s license, recidivism rates, and more.

Teddy: 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 studio. Good morning, Sir, how are you?

Mike: Good morning Ted, how are you doing?

Teddy: 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.

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

Teddy: There certainly are. How’s your holiday season going so far?

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

Teddy: They’ll have to go back Thursday?

Mike: They’re scheduled in Chelmsford to go back to school Thursday. Apparently, we’re going to have a very big snow event. They’re hoping for a snow day on top of their vacation week.

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

Mike: Yes. 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.

Teddy: 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.

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

Changes to DWI Laws

Teddy: Let’s talk about a couple of things. First of all, the new year is bringing a lot of changes in laws. We’re hearing on the news, 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. 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?

 Mike: There was one major change in the New Hampshire DWI law last January. 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. 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. Then they would put in place an aftercare plan if necessary.

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. An 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 program.

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 country.

If you suffer a first offense in New Hampshire, you’re going to lose your license anywhere from 90 days to nine months. They have very, very long suspension periods with no hardships. I think the senate, 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, [and] there’s very little public transportation. You can lose your livelihood if you lose your license.

License Suspensions in NH & MA

Teddy: 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?

Mike: The states, depending on whether they’re members of a contract, will or will not honor the notice of a suspension from another state. 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. 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 database by which all of the states share information about drivers from other states. Mass cross references that database periodically.

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.” 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 anywhere.

Teddy: In any state?

Mike: 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. 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 advice is, the only entity that can take a Massachusetts driver’s license is a Massachusetts court or the Massachusetts Registry of Motor Vehicles.

Teddy: How long does it take for that notice to come out from our friends in New Hampshire or another state for that matter?

Mike: 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. 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.

Teddy: Are there any states that are not part of that registry? Let’s say, I’m going to 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 it a possibility I can get away with it?

Mike: 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 database, and they look to see if you’ve had any outstanding matters in other states. Florida, Montana, Wyoming, whatever it may be. 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. The back and forth between the two states is drastically different.

Teddy: Can you continue to drive in Massachusetts however?

Mike: No. Then the reverse is true. Your privilege to drive in the Commonwealth is revoked but there will not be a reciprocal suspension from the State of New Hampshire based on a CWOF because that’s not a “conviction.”

Teddy: Okay, but you have a valid driver’s license?

Mike: You have a valid New Hampshire license.

Teddy: All right. Let’s say this has happened and you know, New Hampshire didn’t revoke your license because you got pulled in Massachusetts. Let’s say a police officer pulls you over in Massachusetts for speeding or for running a red light. You’re not under the influence. Is there any way for that officer to know that you’re driving with a suspended license?

Mike: That person is going to go to jail for 60 days.

Teddy:  They are able to track it, okay.

Mike: Yes, absolutely. You’re going to be listed in the registry database 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.

Multiple Offenses & Recidivism Rates

Teddy: My last question about this. You talked about some of the first time offender programs. How well do those work generally? We hear the horror stories. The person who’s been pulled over multiple times, 10 times, in some cases, there was a case in California, an 18-time offender. But these are the extremes obviously, and some people never 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?

Mike: I think the recidivism rate is pretty low. Now, there certainly is recidivism, but the vast majority — probably north of 80% 90% — of first offenders don’t become second offenders. The program as constituted works.

Teddy: 90%.

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

Teddy: When we hear these horror stories of the multi-time offender, it’s really the legal system that has dropped the ball there?

Mike: 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, a girl actually, that was killed by a repeat offender. A guy that had multiple, multiple offenses, over a couple of decades. That law was designed to address just that situation.

Other states like New Hampshire for instance, we’re always talking about New Hampshire, has a 10 year look back. If you have an offense more than ten years ago, and you repeat-offend, you are going to be a first offender. If you repeat offend in Massachusetts they are going to go back for your entire lifetime, and pick up each and every prior OUI, including continuances without a finding, and count those. I for instance had one in Lawrence just recently. [He was a] second offender and his first one was in 1981. His second offense that ultimately we won, but it came at Christmas time of 2012. They went back to 1981.

Teddy: 31 years later.

Mike: Encountered a continuance without a finding, out of the district court when he was a very young man, and he became a second offender. The implication he was looking at, if convicted of a second offense, was mandatory jail, an interlock ignition device for two years, a three year loss of license on a breath test refusal, which we were able to vacate that cam test refusal suspension ‘cause we won the OUI charge, but that’s the effect. That law was designed to address just that situation. The repeat offender even from way, way back.

Teddy: Is there a point under the drunk driving laws where there is a three strikes and you’re out for good point or the NCAA death penalty in college football? Is it all case by case subjective?

Mike: Well, here in the Commonwealth, and in New Hampshire, we don’t have a three strikes, you’re out. I know that the penalties for some repeat offenders and 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.

Life Changes After a DWI/OUI Conviction

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

Mike: I tell people all the time, first offenses [are] 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 are 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.

Teddy: Especially tonight and tomorrow. Look they’ve publicized it. There is no excuse. Drive sober or get pulled over. The police are out there. 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.

Mike: 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 Tee tonight in Boston for first night, and then evidently they emphasize the use of public transportation, and they will be out there enforce, pursuing to Grants, possibly running road blocks. You will see an enhanced presence tonight.

Teddy: 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 available tomorrow morning if somebody needs to call you in case of an emergency? How can they get a hold of you?

Mike: Yes. 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. It’s bowserlaw.com. You can follow me on Twitter @bowserlaw, and please have a safe, and happy new year.

Teddy: Don’t take this personally, I hope your phone doesn’t ring tomorrow. I hope you get to relax. What is the busiest time of the year by the way? Is it this time Christmas, New Years, is it Saint Patrick’s day?

Mike: 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. It seems to get slow in those two months, and then it picks up dramatically afterwards. Maybe it’s the summer, its post-holiday, I have no idea but those for whatever reason, [those] tend to be the slowest months. I have certainly been busy, I haven’t seen a slowdown of late. Things are going well.

Teddy: Counselor Bowser, Thank you for your time.

Mike: Thank you.

Teddy: Tony Mike Bowser member of our Expert Network joining us this morning here on 980 WCAP.