Ready For Trial

DUI/DWI Trial vs Plea in MA and NH

July 29, 2016

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

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

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

Mike: I can tell you.

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

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

Dean: That’s true.

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

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

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

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

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

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

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

Dean: I see.

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

Dean: Okay, got it.

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

Dean: I see.

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

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

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

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