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DUI Radio – Mike Bowser interview 4-22-13

June 11, 2013

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STUDIO: We want to bring in our next guest. He is a member of our Expert Network, Lowell’s Attorney, Mike Bowser.

Good morning, Counselor, how are you?

MR. BOWSER: Good Morning, Teddy, how are you doing?

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

MR. BOWSER: Good to be here.

STUDIO: Very timely visit on your part for — for a number of reasons. You wanted to talk a little bit this week about Miranda Rights and how they — how they apply in cases of DUI, driving under the influence cases. Ironically, a couple of very high profile arrests over the weekend. Al Michaels, the NBC sports announcer. Of course, he was the — the play-by-play announcer during the Olympics, he made that miracle on ice call. “Do you believe in miracles?” Yes. He was arrested for operating under the influence over the weekend.

And then Academy Award winning actress Reese Witherspoon got into a little bit of trouble as her hubby was picked up for driving under the influence and she was arrested for disorderly conduct. You know, it got me thinking that both of them made two fatal mistakes that I would guess you advise all your clients about. Number one, Al Michaels took a field sobriety test.

Number two, Reese Witherspoon got belligerent with officers who were — who were questioning her husband in an OUI case.

I would assume big, big no-nos in both cases. Correct?

MR. BOWSER: If I were to give someone advice, and it’s always — it’s always after the fact, but I always tell folks that if you’re pulled over, one, first and foremost, you have to cooperate to some extent with the police. Obviously you have to hand them over license and registration. You don’t have to answer questions but if you’re given a command, a lawful command by a police officer, you have to obey that command. Even if it’s, “step from the vehicle,” or, “get out of the car,” you have to follow those directions. If you don’t, you’ll find yourself probably under arrest not only for resisting arrest but possibly, depending on your behavior, disorderly conduct as well.

STUDIO: So if they order you to get out of the car, if they say, “get out of the car,” even if you have no intention of taking that field sobriety test, you need to step off out of the car?

MR. BOWSER: That’s a lawful order. You do have to follow those directions. Now, you don’t have to take field sobriety tests. And I would advise people to not take those tests because they are designed to fail. However, the police are not required to tell you that you have that option or that choice.

And as far as Miranda goes, Miranda are those rights that you hear — if you watch Law and Order, every single arrest on TV begins with the recitation of “You have a right to remain silent. You have a right to an attorney. Anything you say can and will be used against you in a court of law.” Those are the typical what are known as the Miranda Warnings. However, the fact that a police officer, during a DUI stop or arrest, does not give you those warnings, doesn’t render the arrest illegal.

Oftentimes people come into my office, having been arrested, and the first thing they say is, he didn’t read me my rights. That rule is essentially what they call a prophylactic rule, meaning if they don’t give you the warnings — it applies to custodial interrogation.

If they ask you any questions after you’ve been placed under arrest, they can’t use your admissions or your responses to those questions unless they’ve given you the Miranda Warnings, you’ve acknowledged them and you voluntarily waive them.

The fact that they don’t read you those warnings at the time of the arrest, again, doesn’t render the arrest illegal. It just means that if they continue to ask you questions after you’ve been placed in cuffs, they may not be able to use your admissions or your responses to those questions later because they didn’t give you those warnings.

STUDIO: What kind of questions are you asked before they give — they read you your rights? Let’s — let’s say you’re — you’re pulled over and — whether you’re in your car or whether they’ve already asked you to get out, what — what are they asking? What should you respond?

MR. BOWSER: Well, the — the first question any officer is going to ask you, he’s going to come to the window, good evening. Do you know why I’m stopping you? And then he’s going to ask you, where are you coming from? Where are you going? And then of course, have you been drinking? And beyond handing over the license and registration, you do not have to answer any of those questions.

Very few people have the wherewithal or the knowledge to do that and to say, I’m not answering any questions, but you don’t have to answer those questions. But initially it’s always going to be, where are you coming from? Where are you going? Have you been drinking? And then from there, obviously there’s an exit order. Please step out of the vehicle. I want you to perform field sobriety test. And quite often after that there’s an arrest.

Once that arrest has been made, that’s when those Miranda Rights kick in, and if they continue to question you after that, any of your responses may be excluded as evidence at trial because they failed to give you those warnings.

STUDIO: If you answer one, are you obliged to answer all of them? Like, let’s say they ask you, do you know why I stopped you? And you say, No. Are you now obliged to answer everything else? Where are you coming from?

MR. BOWSER: You’re not obliged to answer anything. You don’t have to provide them anything other than your license and registration. Every citizen has the right not to respond to questions by police.

What’s interesting now is with the second Marathon bombing suspect in custody, he is literally under arrest as he sits in a hospital, and they’re talking about invoking an exception to the Miranda rules for him because of what they call the public safety exception. There is a concern that possibly he’s part of a larger group.

There might be other devices that they’re unaware of that they haven’t found. And because of those concerns, the federal government may seek to dispense with Miranda, not give him those warnings because there’s a public safety concern that they need information immediately, and that trumps his right to be given those warnings.

STUDIO: And that’s a very narrow — the public safety concern, and I’ll tell you what, watching the — watching the weekend talk shows, the talking heads really were going back and forth about it a lot after U.S. Attorney Carmen Ortiz on Friday said in the press conference, we’re not going to read him his Miranda Rights.

How much of a window — that brings up the thing. How much of a window do you have? Couple of days? You know, I mean, didn’t — didn’t the governor and everybody come out, Mayor Menino, come out on Friday night in the press conference on Saturday and say, you know, the danger is done. Go back to normal. Didn’t they, in essence, undermine the — the fed’s case here for not reading him his Miranda Rights?

MR. BOWSER: That is going to be a factual and a legal dispute, you know, down the road in a federal court somewhere. There’s going to be an attorney representing this person, making just those arguments, that the public safety risk has passed. It’s over. It’s — that — that’s a closed issue, and therefore he is entitled to his Miranda Warnings.

Obviously the federal government’s going to take a different position, and they have their reasons for doing that. So that — that will be a litigated, argued issue before a judge in a federal court several months from now.

STUDIO: I found it fascinating that the — that the, you know, law enforcement sources and the politicians would, in fact, say, you know, we believe the danger is behind us.

Probably an example there why people should talk an awful lot less during these press conferences and why the, you know, let the attorneys and the prosecutors who are familiar with the law and the courts kind of have at it. Because I — I thought the exact same thing. I thought they undermined the case, you know, that Carmen Ortiz was making for not reading him his Miranda Rights. I — you know, I thought by giving kind of the all-clear, let’s get back to normal and go out and celebrate in Boston, I thought they were kind of saying, aahh.

MR. BOWSER: Well, you know, what they say into the microphone at a press conference versus what an investigator or a police officer or a federal agent is looking to solicit from him, two different things. And from what I understand, he is already communicating with investigators. Not verbally.

But he’s communicating by way of writing, and he is answering some questions already.

STUDIO: Alright. So Miranda Rights, they are read to you if you’re arrested at the scene of a — of a DUI; but if they’re not, it doesn’t mean that the arrest is invalid. Only what you say afterwards.

MR. BOWSER: In a typical DUI arrest, the Miranda Rights are not read to you at the time of the arrest at roadside while you’re being placed into the cruiser or removed from your vehicle.

When I see the Miranda Rights given is during the booking process. So you’re already 10, 15, 20 minutes into this custody where you’re brought to the station and you’re booked.

And there I will almost always see the police departments, whether it be the state police or local police, they will read you your Miranda Rights at that time.

They may ask you at that time, will you answer some further questions about what went on this evening? And then you do have the right, obviously, to say, I don’t want to talk. I don’t want to answer questions. And quite often, they — they will always honor that request and they won’t ask you any further questions. You’ll be booked and you’ll be released.

STUDIO: So your best advice is don’t be belligerent. Be cordial, cooperate, but don’t answer any questions.

MR. BOWSER: Well, if — ideally, if you — if you’ve been pulled over and you’ve been drinking and an officer is asking for license and registration, as I said, you have to give him those documents. My response to him would then be, am I free to leave? And he’s going to look at you and say, well, you’re not free to leave. And you say to him, well, I’m not going to be answering any questions. Politely, succinctly, keep it simple. And at that point he needs to make a decision, he or she, but I would not suggest that you then answer questions, take field sobriety tests, or take a breath test.

Now, there are consequences to those decisions obviously.

STUDIO: I was going to say, doesn’t that imply some type of guilt, that you’re — that you’re hiding something? Aren’t you — aren’t you, in essence, sending up a warning flag to the officers that I have something to hide?

MR. BOWSER: Well, in Massachusetts, if you exercise your right to refuse field sobriety tests or to refuse a breath test, that refusal — evidence of that refusal is not admissible in a courtroom. We are one of very few jurisdictions that has that rule, whereas in New Hampshire, where I also practice, your refusal of a breath test is admissible. Your refusal of field sobriety test is admissible. And there is a consequence to that. If you refuse a breath test, there’s going to be an administrative license suspension, and depending on what your prior history is, it’s going to be anywhere from 180 days up to lifetime.

STUDIO: That’s New Hampshire.

MR. BOWSER: That’s Massachusetts.

STUDIO: Massachusetts. Okay.

MR. BOWSER: Has a graduated series of what they call chem test refusal suspensions. If you have no prior, it’s 180 days — 180 days. If you’re under 21, it’s a three-year loss of license for refusing. And if you have prior offenses, it can be a three-year, five-year, or lifetime suspension, just for the refusal of the breath test. So that decision obviously comes with some very serious consequences.

STUDIO: Can I ask a question? How come it’s not — how come it’s not permissible to allow it into evidence in the trial if you refuse to take a test but it’s permissible to pull your license?

MR. BOWSER: Because your license is a privilege, not a right. So you have a right, under the state constitution and the U.S. Constitution, not to implicate yourself. So the courts in Massachusetts have said that that decision to refuse field test or breath test is reflective of your state of mind and therefore violates your right not to implicate yourself.

However, your driver’s license is a privilege, it’s not a right. And the Registry of Motor Vehicles, by law, can take your license if you refuse to take a chemical test.

STUDIO: One final question. You said that if the officer orders you out of the car, you have to get out of the vehicle.

MR. BOWSER: You do.

STUDIO: That applies for passengers as well or only the operator?

MR. BOWSER: If you’re a passenger sitting in a motor vehicle and you’ve been given a command by a police officer to exit the vehicle, I would say that you have to obey that command and get out.

STUDIO: What do you do once you’re out? What if — what if they tell you, you know, to walk on over to, you know, the — you know, let’s say they’re going to be a little sneaky and not necessarily give you the field sobriety but say, you know, walk on — you know, get 20 paces away from the car or something to that effect? Or walk around the vehicle, you know, go over, stand by my cruiser. What — what are the boundaries that they have to abide by?

MR. BOWSER: Well, I think you have to follow directions. Get out of the car. You do have to remove yourself from the vehicle. As far as walking you around and moving you to various locations, within reason you do have to follow directions. I can’t imagine they would do something like that unless they do intend to give you field sobriety tests. But if you’re given an order by a police officer to step from the vehicle, my advice is to follow that command and get out of the car and cooperate. Do not become belligerent. Don’t give them a hard time, because they’re out there trying to do a job and you have rights and they have a job to do, so.

STUDIO: You walk — you get out of the vehicle, he orders you to walk around to the back of the vehicle. You stumble as you’re doing so. You lean. You –

MR. BOWSER: All of that — If you’re the –

STUDIO: Is that admissible?

MR. BOWSER: If you’re the driver, then those observations that the officer makes are all relevant and are probably all admissible. So they certainly are watching you throughout their contact. Booking, roadside, transport, custody. They are looking for clues or indicia of impairment throughout their entire encounter with a driver.

STUDIO: Attorney Bowser, if folks want to get in touch with you or your law offices in Chelmsford and Nashua — correct?

MR. BOWSER: Yes. I have an office in Nashua, 6 Manchester Street. And I’m over on 221 Chelmsford Street in Chelmsford. 978-256-2700. And the website is bowserlaw.com. www.bowserlaw.com.

STUDIO: And as we should mention, there are not many certified OUI specialists in the country. You are one of them.

MR. BOWSER: Board Certified DUI Defense Specialist. One of three practicing in Massachusetts and one of two licensed to practice in New Hampshire.

STUDIO: And he is also a member of our Expert Network. Lowell Attorney Mike Bowser joining us this morning here on 980 WCAP. Thank you for your time.

MR. BOWSER: Thank you.

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