Ready For Trial

DUI Radio – Interview 5-23-13

July 11, 2013

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STUDIO: Right now we want to bring in a member of our Expert Network. Attorney Michael Bowser joining us in studios.

Good morning, Counselor. How are you?

MR. BOWSER: Good morning, Teddy. How are you?

STUDIO: I’m doing fantastic. Good to have you here.

MR. BOWSER: Thanks for having me. Sorry. Running late. We missed a bus this morning and I also had to make the turkey and cheese sandwiches. So I’m running a little bit behind today.

STUDIO: Turkey and cheese. Is that what your — is that what your office is eating or your kids?

MR. BOWSER: That’s the staple diet of my two children in school every day.

STUDIO: Every day. Hey, as long as they’re eating something somewhat healthy, that’s not too, too bad. You’ve been a busy man. We haven’t chatted with you in a few weeks and that’s because your court docket, very, very full. You have had nine trials, nine DUI trials in the last ten days.

MR. BOWSER: Well, the reason you didn’t see me for a few weeks is everything seemed to stack up earlier this month.

Last week I ended up trying — impaneling a jury and trying a personal injury case, a car collision/crash case in New Hampshire. We picked the jury on Monday. We tried the case Wednesday, Thursday, deliberations into Friday.

In the two weeks prior to that I had nine DUI defense cases scheduled in ten days. Five of those ended up actually being reached for trial. One was a bench trial; the other four were jury trials. So I was on quite a tear there for a few weeks there. I finally got a break and I think I actually have Friday off and Monday off coming up.

STUDIO: Lucky you. Now, is that unusual to have five out of nine cases go to a jury? I was under the impression — I think a lot of people in the general public are — that attorneys and prosecutors and whoever’s involved, they generally try to reach some kind of a settlement. They don’t want it to go to trial, and they — they certainly don’t want it to go to a jury. It almost seems like where your specialty is in OUI offenses, you — you want it to go to a jury, don’t you?

MR. BOWSER: Well, when I meet with potential clients, I tell them right up front, if they’re interested in resolving a case by way of a plea or an admission — most people that are charged with a drunk driving offense, it’s their first offense. And when they walk into a courtroom, they’re going to receive from the Court and the Prosecution the minimum mandatory penalties. And I tell people if that’s what you’re interested in doing, certainly you can do that with pretty much any lawyer that you chose, and you can certainly make those decisions based on price.

If you’re going to hire me, generally it is because you want to go to trial. You are interested in defending yourself to the full extent of the law, which means you’re going to have a bench trial or a jury trial and you’re looking for that verdict and hopefully the verdict is a not guilty.

STUDIO: Your other case that you were talking about was a — a battle from an accident with an insurance company of the — the — the guilty person in the — in the accident. The person who caused the accident, the insurance company was trying to shortchange your client.

This is pretty standard. And I think I speak for pretty much everybody out there listening, that insurance companies, the big insurance companies, they will try everything they can, make you jump through hoops, paperwork, deny you when you first file your claim, they will do anything they can not to pay. And then when they — even when they have to pay, they will do whatever they can to not give you what you fairly deserve. Is that an accurate assessment or am I — am I mischaracterizing, you know, the big insurance companies out there?

MR. BOWSER: No. And I can — it’s extremely accurate and I can tie it into one of your earlier callers who I was listening to as I drove in. He was mentioning the prevalence of insurance fraud as it once existed in Lowell and in Lawrence. And I don’t see that as I used to many years ago. But that permeates — that thought pattern permeates the jury pool.

So if you have a very deserving person like I did last week — I had a young lady that was rear-ended in broad daylight. There was damage to the other vehicle. There wasn’t a lot of damage to the rear end of hers. So the insurance company for the other driver, of course, ran out four days later and took pictures of her rear end of her vehicle to show how little damage there was. I had to call the body shop guy in to explain that the trunk panel underneath had actually collapsed, but you couldn’t see it in the photo. And their — their take is, listen, she doesn’t look hurt. Her car isn’t that damaged. She can’t be hurt.

And when you pick a jury, they’re not told that there’s an insurance company. That’s inadmissible. And you have to get a unanimous verdict of 12 people to agree on liability, injury, damages. And it’s very difficult, and most of the large insurance companies, if not all of them, will force you to try that case to recover.

In that particular case we were offered in the neighborhood of about 8 or 9 thousand dollars, which barely covered her out-of-pocket medical expenses. And after four days of trial, we got a verdict from a jury of $35,000. And I had to fight three years to get that type of recovery, and they make it very hard and very difficult.

So if you are seriously hurt and you need to make that recovery, you have to hire a lawyer that can try that case because they will force you to trial in order to recover.

STUDIO: And I think what happens sometimes is — I know because my parents have gotten into some very serious accidents where they were rear-ended. And you know, initially you’re still — you know, the adrenaline’s kind of going and you — you know, they come out and the police will show up and sometimes they’ll even bring an ambulance and — and people just kind of say, no. No. I — you know, I — well, you know, I — I feel a little something in my shoulder — in my mom’s case it was her elbow and — but I’m okay. And you know, you just kind of go home and — it doesn’t really hit you till two or — or three days later.

You really have to be careful as somebody involved in one of these accidents with what you say and what you do in the immediate aftermath of that accident in front of, you know, witnesses, officers –

MR. BOWSER: Uh-huh.

STUDIO: — and you also have to make sure that if — you know, to get the officers there to get this documented, because once it becomes your word against theirs, and if there’s no — you know, no officer there to determine or place blame, you know, that’s what the insurance companies are looking for, aren’t they?

MR. BOWSER: Well, what they — in my case they — exactly. The young lady was rear-ended. She was hurt.

Initially she felt dazed. She saw stars. She felt hot all over. She got hit right down the street from her house. Her dad came up to the scene. They don’t have insurance. And when the police responded and she wasn’t bleeding, she didn’t appear to be physically harmed, they said, do you want the ambulance? And the father said, no, we’ll — I’ll take her. Because he knows what an ambulance costs.

STUDIO: Right.

MR. BOWSER: Believe me. At trial three years later, they were harping — the insurance defense lawyer was pointing out to that jury, and he couldn’t say it enough, that the police report said number of injured, zero. Refused transport by ambulance. And they play on that.

Now, I tell people, listen, I’m not a doctor. I’m a lawyer. You go and get whatever medical treatment is necessary for you to get well, and I’ll play with, you know, the facts that are given to me. If you don’t take the ambulance, if you don’t say you’re injured, it is what it is.

But if you are hurt, you do need to follow up and make sure you get the treatment that you need because the insurance industry will look at that record and say, you did not seek medical treatment when you really needed it. Therefore, you are not injured.

STUDIO: It’s also important to make sure that you take all the information from the other driver. You know, registration, license. And especially insurance information.

I know a lot of times — I’ve actually had people tell me, you know, I got hit by so-and-so. It happened to our former news director, Kim Saltmarsh. She got rear-ended on Route 93 and the person said, you know, I’ll give you, you know, a thousand dollars cash. Don’t report this. And, you know — I mean, that again, long term, that comes back to bite you.

MR. BOWSER: You absolutely want to get correct information. ID of the driver, the vehicle registration and most importantly, who is their insurance carrier. Because even if they don’t report it to their carrier, you’re going to report it to that carrier. So — and that’s the benefit of — if the police do respond, they are going to generate a report. They are going to gather that information for you.

STUDIO: 8:23 here on 980 WCAP. We’re chatting with Attorney Mike Bowser. His specialty is OUI cases. You have offices in Chelmsford and in Nashua, correct?

MR. BOWSER: Nashua. And actually I’m off to the Seabrook District Court today on a DWI matter from New Hampshire. I’ve been practicing in both states for 17 years and I’ve maintained the office in Nashua as well for that time period.

STUDIO: And you’re certified in both states, correct?

MR. BOWSER: Licensed, yes.

STUDIO: Licensed, I’m sorry.

MR. BOWSER: Took the Bar exam way back when in New Hampshire and Massachusetts. Licensed in both states and Board Certified as a DUI Defense Specialist.

STUDIO: And as we’ve found out from some of your previous visits, that is very important. The laws in each state are different and they could affect your driving record and your insurance in your state. You know, a lot of us go back and forth between New Hampshire and Massachusetts. Very, very important to — to make sure that you are fully aware of the implications of any type of charge, arrest or whatnot in — in one state and what it could mean for you long term.

MR. BOWSER: By way of example, within the last two days I’ve had conversations with a Massachusetts resident with a drunk driving matter in New York State. I’ve got cases all the time with Massachusetts people with DUI charges in New Hampshire and vice-versa, New Hampshire people with charges here in Mass. Yeah. Historically these things matter and they count and they stay on your driver’s history forever.

STUDIO: Been a lot of things in the news regarding your specialty the last few weeks. Let me start first. The one that really screamed out and grabbed headlines. The Billerica gentleman arrested for his 12th OUI. Let me ask. How do you defend a case like that, somebody who’s now been picked up for his twelfth time? Can you — can you even defend that? I know it’s –

MR. BOWSER: I have.

STUDIO: — your skill. I know it’s your expertise. You have — oh, you have had –

MR. BOWSER: I’ve had — I’ve had numerous cases where my client is charged with what may be his fifth, sixth, I’ve had — actually had an 11th lifetime.

The maximum that you can be charged with under the law in Massachusetts is five. You know, fifth or subsequent is basically as high as the law goes. So if it’s your eighth, ninth or tenth, you’re going to be charged as an OUI fifth offense. They will look back over your lifetime and they will pick up every prior DUI that you’ve had going back to the ‘70s, the ‘80s, the ‘90s.

And the case — the gentleman in Billerica, my understanding is he did not have a valid driver’s license at the time. So he’s obviously driving around without a license, having already been revoked for his lifetime. And the question becomes, well how do you stop that? Because, you know, literally who’s there to stop him from getting behind the wheel, putting the key in the ignition and going? As far as the law goes, he — he had been revoked lifetime, which he should have been.

But, you know, can you defend those cases? When those cases go to court, what’s interesting is the — in Massachusetts and in New Hampshire, if you go before a jury on an OUI subsequent offense, whether it be second, third, fourth or 11th, the jury is not told that it’s your second, third, fourth or 11th. They’re told that it’s just an OUI because that evidence of a prior record is prejudicial to the point where it’s not relevant. It’s only going to poison the jury if they heard that you had three prior convictions. You’re probably not going to get a fair shake in front of that jury on that fourth.

And then they — what they do what’s called a bifurcated trial. You try the underlying OUI offense — excuse me. You try the underlying OUI offense to the jury. If you are convicted, you then are entitled to a second trial to determine whether it is, in fact, your second, third or fourth, whatever that may be.

STUDIO: So in terms of — let’s say somebody’s convicted — and you said that there really is no difference, it’s always the first trial when you stand trial. But in the penalty phase it does matter which one it is. Can you ever get a clean record?

Let’s say you’ve been convicted of three and you’ve gone a decade and then all of a sudden you get picked up for your fourth. Is it — is it ever kind of like insurance where, you know, if you — if you’ve been a good driver for so long, you get — you get a break, or no? These OUIs are there forever and every time you get caught, if it happens, you’re going to pay the price for it.

MR. BOWSER: In New Hampshire where I practice, they do have a ten-year look-back. So after ten years, if you pick up another one, you’re going to be treated as a first offender.

However, Massachusetts has a lifetime look-back. So regardless of whether your last one was 10 or 15 years ago, if you have a couple back in the ‘70s or in the ‘80s and 30 years later you pick up another one, you’re going to be charged as a third offender. So there is no grace period, there is no waiver period in Massachusetts.

For purposes of insurance, there is. But for purposes of a criminal prosecution based on a new OUI arrest, it’s a lifetime look-back and that stuff does not go away. It is there forever for purposes of your next one if there is one.

STUDIO: As we’ve talked about this 12-time offender in Billerica, you mentioned you had somebody who had an 11th offense that you had dealt with. How do you approach that case as a — as an attorney but also as a — as a citizen, as somebody who — do you try to, you know, work with this person and help if there’s a problem or is your job simply, you know, you’re there to defend him? Everybody has a Constitutional right to a defense and an attorney and — and that is your job?

MR. BOWSER: My role as I see it, and I will explain this to clients, potential clients, when I meet them, is I’m in the protection business. So my job is to protect my client and his or her rights and their interests. It’s somebody else’s job to prosecute them. It’s certainly someone else’s job to sentence them if they are convicted. That would be the judge and the prosecutor.

So the way that I do my job and the way that I kind of wrap my head and my heart around what I do is I look at that person, I say, my job is to protect you. And then whatever that may entail, referring them for help if they need it, helping them find other professionals that could help them in their lives outside of the courtroom, I will certainly do that. But I view my role, quite simply, straightforward, my job is to protect you, and that’s how I do it.

STUDIO: And I think it’s important to note, because a lot of folks will say, how can you do that? And ’ve had that discussion with defense attorneys who are defending child molesters, with, you know, sometimes murderers, and I — and I say, how can you do it?

And they say, look, the system was intentionally set up — and it’s the best system in the world — it was set up for that. It’s supposed to you know, you’re supposed to have a fair shake, a fair fight. And they — they always say to me,don’t feel sorry for the — for the prosecuting side, ever.

They have all the resources they need.

Usually it’s the defendant in — no matter what type of case it is, whether it’s an OUI, a murder case or whatever, it’s usually the defendant that has a hard time getting the resources to match an equal defense. They’re not all O.J. Simpsons. All your clients don’t have O.J.’s money, right?

MR. BOWSER: No. And, you know, to those that have no money, certainly they’re going to receive a court-appointed lawyer or the Public Defender’s Office, the Committee for Public Counsel Services, and there are some wonderful, great lawyers doing that type of work, and thankfully they’re there to do it. Because everybody is entitled to a defense regardless of their resources, their background, their prior history.

I heard — I actually said to a group last weekend, you know, a jury is the most powerful group a person can belong to, and that’s why most countries don’t have them. And we’re — we’re very lucky and we’re very fortunate in this country to have that jury trial system.

STUDIO: Lastly, there’s been some talk nationally of reducing the legal limit from a .08 percent — now, I remember when they took it down from a .10 to a .08, and that was very contentious. They’re talking about now taking it down to a .05.

In some cases, for some lighter people, that’s as simple as two glasses of wine or two beers. I find it fascinating that even Mothers Against Drunk Driving, which really kind of got the ball rolling in the ‘70s and ‘80s on calling attention to these operating under the influence cases and really starting to crack down, I found it very telling that even they were against this proposal.

MR. BOWSER: They did not come out in support of it. I believe it was a recommendation from National Highway Traffic Safety Administration that at a .05 there is evidence and there is some research and studies that show that people can be impaired at that level.

It creates such a low threshold for so many people, and to enforce it, I think you would literally shut down the hospitality industry. The tavern, the bar on the corner, the restaurant, the 99, you know, the hotel. It would be — it would create such a low threshold in the enforcement, it would be outrageous if you would be pulling over people, arresting them and charging them at a .05.

You can just think of the ripple effect of that. Then what happens to the legal liability? Because now when you were concerned about over-serving someone to a .08 or greater, now you’re concerned about over-serving someone to a .05. It creates a real problem. It goes across the industry into the restaurants, into the bars, into the hotels.

STUDIO: It’s 8:32 here on 980 WCAP, chatting with Attorney Mike Bowser, a member of our Expert Network. We’ve run out of time. And one of these weeks we’re going to get to the breathalyzer test itself because there’s so much legal wrangling back and forth about how accurate it is, how fair it is, when and how it should be administered and when and how you should take it. We promise, we’ll get to that one of these weeks.

But before we let you go, please give everybody the contact information. If folks are ever in need of your services — and we like to say that we — we pray that people don’t have to — to come to you. I know I don’t want to take money out of your — you know, your kids — they’re already relegated to turkey and cheese sandwiches, but if they ever do need your services, what’s the best way to get in touch with you?

MR. BOWSER: The phone number in Chelmsford is 978-256-2700. And the best way to learn about myself, my practice, my firm is the website, which is www.bowserlaw.com.

STUDIO: Attorney Mike Bowser, member of our Expert Network, joining us this morning on 980 WCAP.

23 years of Proven Personal Injury Results. www.bowserlaw.com

(888) 526-9737