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Expert Network Interview of Attorney Michael Bowser August 22, 2013

September 10, 2013

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STUDIO: Right now we want to bring in a member of our Expert Network. We chat with him on Thursdays about his speciality which is the law. And in particular how the law pertains to operating under the influence and other motor vehicle infractions. Attorney Michael Bowser joining us in studios. Good morning, Counselor, how are you today?

MR. BOWSER: Good morning, Teddy, nice to see you.

STUDIO: Good to see you as well. How are things? We haven’t touched base in a little while. You’re a busy man. Is that a good thing or a bad thing in your specialty?

MR. BOWSER: It’s a good thing, I’ve had a very, very busy summer. I was three days at Harvard Law School for the National DUI Defense Colleges Summer Meeting, and it’s nice because Harvard Law School allows us to use their campus. So I was down there for three days. And I just got back from Chicago where I took a gas chromatography course, and gas chromatography is the technology by which all the state laboratories test blood alcohol samples. So I was there for about ten hours a day picking apart the machine, learning how it works, learning how to better defend those that are accused with state lab results. Just go back about 3:00 in the morning on Monday, so been busy. And I missed a couple Thursdays due to some other matters, but it’s nice to be back.

STUDIO: In your field, sometimes things crop up at the last minute. Remind folks who haven’t caught you before — you are a certified DUI specialist. There aren’t many of you in the United States and there certainly aren’t — I think there is only one other in the area here, and you have offices in Chelmsford and Nashua, is that correct?

MR. BOWSER: I have offices in Nashua, one in Chelmsford. Been practicing 17 years. I’m one of — the number is now up to about 60, one of only 60 board certified DUI defense lawyers practicing in the United States. There are three of us in the Commonwealth and I’m one of only, excuse me, two practicing in the State of New Hampshire.

STUDIO: Let’s start with a couple of cases that have been in the news. First of all, you mentioned that — I’m forgetting the name of it — gas chronomina, did I remember 16 it?

MR. BOWSER: Gas chromatography.

STUDIO: Gas chromatography. You talked about the Massachusetts State Crime Lab. It’s an instrument or tool they use. Remind me, we found out yesterday that there might be 40,000 cases affected by the Annie Dookhan scandal there.

MR. BOWSER: Yes.

STUDIO: The woman who apparently tainted or forged evidence helping to convict folks. Are there some DUI cases that might be involved there?

MR. BOWSER: Out of that lab, not that I’m aware of, and as far as blood alcohol or breath alcohol testing in Massachusetts, I’m not aware of any of those issues; however, there have been problems in the State of Pennsylvania, the State of Texas where results and calibration results of breath testing devices have been falsified, or dry results where they’re writing in the results of calibrations.

STUDIO: That’s what I —

MR. BOWSER: But calibrations never took place. That has absolutely happened in other jurisdictions. I am not aware of that happening in Mass or New Hampshire.

STUDIO: That’s what I wanted to ask, I mean we all assume that everybody is being honest in our justice system. That’s why we — that’s why we put our hand on the Bible and you know, make the oath there to tell the truth, the whole truth and nothing but the truth so help us God. Annie Dookhan showed that, you know, a bad intentioned person can throw that entire system in disarray. How reliable, how much should we trust? As somebody who regularly fights, you know, these agencies and these types of law enforcements, how much faith can we put that Annie Dookhan is just a lone wolf and there might — and that there aren’t any others out there that might be doing the same thing, tainting evidence?

MR. BOWSER: Well I don’t think it’s a matter of whether there’s a bad person or a bad apple within a laboratory that may be doing something egregious or illegal as falsifying results. But you cannot ever take at face value any laboratory result. That’s what I was really enlightened by in the Chicago course that I took. It’s kind of like pulling back the curtain and seeing the little man behind the curtain. When you really know what is going on in the laboratory and how these results are created 95% of all laboratory error is a result of human error as opposed to the device itself or the technology itself. There’s a human being behind every test, and human beings as we all know are fallible. Whether intentionally so or negligently so. So you cannot take any laboratory result, whether it be a breath test, a blood test, a drug analysis at face value without looking critically at the person, the procedure, the process, the laboratory.

STUDIO: Well you said 95% is human error. That leaves 5% for scientific or machine error. How do you prove that? If you’re a defendant, you’re up against the State and generally I would assume juries, you know, we’re so use to watching CSI and we take that all of the science is exact and perfect. I would assume a jury kind of looks at it the same way. How do you fight that if you’re a defendant, and not just in a OUI case but in really in any case, where there is supposedly this rock solid scientific evidence against you.

MR. BOWSER: Well what I find fascinating is that these devices and these machines, by way of an example, the breath test device in Massachusetts, the Draeger 9510, they pull that out of a box from the manufacturer. And when that machine comes out of the box, it is like a newborn baby. It doesn’t know anything, and they have to calibrate it and they have to tell it what are the results that we’re looking at. And that’s a process done by human beings and they’re calibrating this device and telling this device at what level they should be looking for certain results. If that calibration is done incorrectly, that machine is deaf, dumb and blind for the rest of its time on line.

So at the very outset, beginning with the calibration of the device, whether it be a gas chromatograph or a breath testing device, you have to look at it from the very beginning and that has to be done correctly. So human error, yes. Is there machine error? Absolutely.

STUDIO: Mr. Bowser, about the results and this 95% factor, how can these things be eliminated? How can we improve the system for an accurate reading for, for prosecution, not just defense?

MR. BOWSER: Well the 95%, I’m not saying 95% of tests are wrong, I’m just saying the potential error, 95% of that potential error lies within human mistakes. You need to defend yourself. You need to look at any piece of evidence, whether it’s a drug case or a drunk driving case, critically, and not take it face value the results that are handed to you, because generally it’s a right of confrontation. Generally you’re given a piece of paper from a laboratory, and they saythe results are a point 08 breath test or a point 08 blood test, or this substance is in fact cocaine.

If you were to accept at face value that statement without confronting the witness and the technology behind it, then you’re going to get run over. So the way that you fight it and try to insure integrity and accuracy is you put them to their burden, which is proof beyond a reasonable doubt. You make them prove the accuracy of the results, because the burden is not on the defense to prove that technology correct.

STUDIO: This is correct.

MR. BOWSER: The burden is on the government to come forward with valid test results. And my job is to make sure that that validity is brought into a courtroom.

STUDIO: Shouldn’t the society’s role collectively, everybody’s entitled to a defense, but to give some equity to the public, to the people, the taxpayers, how can we improve the entire system?

MR. BOWSER: The system —

STUDIO: To eliminate these kind of problems, get rid of them?

MR. BOWSER: The system is, you know, somebody found out about Annie Dookhan. So, and I would imagine that was through the process of an adversarial criminal prosecution. And I’m not, I’m not intimately familiar with that case. Most of her cases seemed to have infected Suffolk County, Norfolk County, they’ve certainly touched upon Worcester and Middlesex, but they’re actually running special sessions of courts in those jurisdictions and those counties — they call them Dookhan sessions — where just her cases that are being brought back before the court, people that have been sentenced, people that have cases pending.

So it came out through that adversarial process. As a taxpayer, you’re paying for this laboratory, you’re paying for these results, and I think in general most of the folks working at these laboratories are doing a great job and they’re over burdened and they’re over worked and they do the best they can, and I think she’s an example of the extreme.

STUDIO: As we talk about the science behind it, to me it highlights the need, if you ever are in one of these situations, to find an attorney that specializes in this. And I don’t want to demean other attorneys because I’m sure, you know, any attorney can practice a case; however, you via your training and talking about coming out of, you know, the Harvard Law School and that special program that you participated in, being one of only a handful in the area here, one of only 60 in all of America, I would guess you really have a grasp of the science behind this because it is your specialty.

MR. BOWSER: And I want to be very clear, the program that I intended, it’s the National DUI Defense College. We are hosted, the Harvard Law School allows us to use their facility and their campus. It’s not affiliated in any way with Harvard Law School. I didn’t go to an ivy league school.

But yes, I mean I tell people all the time, you know, a lawyer can be an electrician, a plumber, a carpenter, just like a doctor can be a podiatrist, a brain surgeon, a cardiologist. You know, my specialty and where my expertise lies is DUI defense and the technology that goes behind the testing involved in those cases.

STUDIO: We’re fast approaching the eight o’clock hour here on Merrimack Valley Radio. I’m going to override the ABC news for a quick second because we’re talking to Attorney Michael Bowser, a member of our Expert Network and a certified DUI specialist here, because there was a story in the news that I just wanted to kind of get your thoughts on, and also to I think use it to highlight some of the dangers and the importance of, you know, being careful with what you’re doing when you’re out having a dinner with some wine or having a few drinks or whatever.

The recent case involved the off-duty Lowell Police Officer who was killed in an automobile accident with another gentleman who was alleged to have run a stop sign. Both were legally over the limit for being intoxicated while operating a motor vehicle.

How do you determine fault when — I guess it’s easy when somebody is sober, hasn’t had a drink, and somebody goes above the limit. I guess that’s easy for law enforcement and for the courts to determine. What about when both of them are over the limit. Is the one who is the most over the limit? How do you assign blame in a case like this?

MR. BOWSER: Well the law is blind as far as impairment goes in the sense I’ve had several cases where my client was rear ended or my client was hit by someone at a stop sign or my client was involved in an accident where they’re clearly, legally they’re not at fault for the accident, but they themselves have been alleged to have been impaired and the other driver as well sometimes. So that happens. That case, the issue in that case was whether the Defendant represented by Attorney Oberhauser, by way of example Gregory Oberhauser is the only other lawyer in the Commonwealth that has taken that gas chromatography course that I just completed. So he’s well versed with the blood test that was involved in that case. He was convicted of the misdemeanor version of that offense, which means he was under the influence and he caused the death. Whereas the felony version which he was not convicted of, requires proof that he was under influence and reckless or negligent and caused the death.

So I believe the finding from that jury was he was under the influence, he did cause the death, but he was not negligent or reckless.

STUDIO: That’s the part of the verdict I didn’t understand. How are you — how are you guilty but you’re not reckless or negligent. I mean if he’s guilty, he’s running the stop sign and drinking, oh he’s over the limit.

MR. BOWSER: Right.

STUDIO: Which apparently the jury bought but — so how do they find him not guilty of the recklessness.

MR. BOWSER: Well I just had — I had a verdict this week and the issue was an OUI charge and a negligent operation charge. The allegation was my client was driving the wrong way on a highway towards a cruiser, so obviously there’s some evidence of negligence. And you would think being OUI, being under the influence in and of itself is negligence. So in my mind those two charges should be merged or combined and you shouldn’t have both, because if you’re convicted of being OUI, I think that in and of itself is evidence of negligence. But he misdemeanor version of that charge requires proof of one or the other, whereas the felony version of that charge requires proof of both the OUI and the reckless or negligent conduct, so.

STUDIO: Does it make a difference what that number comes in? For instance, the gentleman that was convicted in this case was a point 09. The legal limit is point 08. But he was right on that border. Does that make a difference in terms of how the law is applied? If he was a point 19, would he have been more severely charged and perhaps more severely convicted?

MR. BOWSER: Massachusetts does not have an aggravated DUI or DWI charge where the State of New Hampshire where I practice does. In New Hampshire, if you are a point 16 or higher, which is twice the legal limit, that’s an aggravating factor, that’s an automatic jail sentence, that’s up to an 18 month loss of license with an automatic interlock device. Massachusetts doesn’t have an aggravated DUI based on the number itself. So you could be a point 21, a point 24, a point 18 as a first offense, that’s still just a first offense. So the evidence in that case I believe was a point 09 and I’m sure that was — I know for a fact that that number was hotly contested, especially given it’s proximity to a point 08 and it’s proximity to the time of driving. Because blood alcohol content is a moving target. It goes up, it peaks, it goes down and it’s bell, what they call a Gaussian curve or a bell curve, and where you fall on that bell curve peak on the, you know, elimination absorption, those are the issues that have to be brought to the attention of the jury. Because I could be a point 08 or a point 09 right now and in an hour and a half from now I might be a point 06 or vice versa so.

STUDIO: I’ve been told a point 09 for somebody small, and it appears from physical, looking at photos and video of this person, he was a very small person in stature, point 09 could be something as simple as a two beers in a half hour. Is that accurate?

MR. BOWSER: Given your weight and there’s a difference in a fluctuation between male and female due to the water content of their bodies and the muscle mass. So weight, sex, consumption over what period of time and food, all of those things factor in as to whether or not — and the other thing that people don’t realize is you, you could be impaired, a person can be impaired at a point 05 or a point 06. You know, the point 08 is a number that we’ve established as a legal limit of impairment. There are folks that are probably impaired at a point 05 and quite frankly there are people walking around at a point 15 that you wouldn’t know they’ve had anything to drink, so it goes both ways.

STUDIO: And that highlights the importance of if you ever are in one of these situations as we always say, hopefully you never end up in one of these situations. If you are, it is important to get expert help, expert advice and that’s where you come in, Attorney Michael Bowser, a member of our Expert Network. How can folks get in touch with you if they ever are in need of your services, Sir?

MR. BOWSER: Offices in Nashua and in Chelmsford. It’s 256-2700 in Chelmsford and the website is quite frankly the, probably the best source of information regarding my practice. It’s www.bowserlaw.com.

STUDIO: Attorney Michael Bowser. Thank you so much for joining us this morning. We’ll chat again in a few weeks.

MR. BOWSER: Thank you.

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