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

January 17, 2014

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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.

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