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

December 23, 2016

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

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

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

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

Leslie Bodor: Are we?

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

Leslie: We have a bit of a delay here.

Michael: I’m doing my best.

Teddy: How are you?

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

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

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

What to Expect from New Officers 

Teddy: Are they really?

Leslie: Yes, next week.

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

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

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

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

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

Leslie: I was a coach.

Michael: Right, in the FTO.

Teddy: Stay off the highway.

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

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

Leslie: We ride alone normally.

Michael: Could be trouble for you.

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

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

Leslie: Teddy, I could have been your coach.

Drinking and Driving Laws Defined

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

Michael: Allegedly.

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

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

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

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

Michael: Correct. It’s a law standard.

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

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

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

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

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

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

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

Marijuana Laws

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

Leslie: Correct.

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

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

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

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

Teddy: Okay. Interesting.

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

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

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

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

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

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

Leslie: Same thing with an alcoholic.

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

Teddy: Yes. I failed it somewhat.

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

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

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

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

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

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

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

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

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

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

What Police Officers Look for During a Stop

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

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

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

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

Leslie: A professional opinion.

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

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

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

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

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

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

Teddy: So I have to turn those over.

Michael: Absolutely.

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

Leslie: I wouldn’t recommend that.

Teddy: Tell me how to do it.

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

Michael: You’re giving them further facts.

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

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

Leslie: “What did I just do?”

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

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

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

Teddy: Isn’t that suspicious behavior?

Michael: Absolutely.

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

Michael: You shouldn’t answer questions.

Teddy: Don’t answer the questions, period.

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

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

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

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

Teddy: I always talk to the officers.

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

Leslie: I hear every word.

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

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

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

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

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

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

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

Leslie & Teddy: “They don’t have to.”

Michael: “It doesn’t matter.”

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

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

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

Teddy: The attorney is shaking his head.

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

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

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

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

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

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

Leslie: That is correct.

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

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

Teddy: No parking lots at them definitely.

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

Getting in Contact with an Attorney

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

Michael: Two in New Hampshire, three in Mass.

Teddy: You are one of them?

Michael: One of those, yes.

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

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

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

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

Leslie: You have, wonderful.

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

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

Teddy: I may hire him anyway.

Leslie: Keep him on retainer.

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

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

Leslie: It’s true and I mean that.

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

Michael: Sure.

Teddy: Happy St. Patrick’s Day.

Michael: Same to you enjoy.

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