Audio recording of the interview
Transcript of the interview
STUDIO: Joining us in studio is Attorney Michael Bowser, a member of our Expert Network. Good morning, Counselor, how are you?
MR. BOWSER: Good, Ted, how are you?
STUDIO: Great. Long time no see.
MR. BOWSER: It’s been awhile. Yeah. Been very busy. I had a — as you know I had some surgery last year and it really took my calendar to pieces and pushed me into a position where I was two or three trials a week all through the fall. September, October, November, December, so it’s been a very busy stretch for several months.
STUDIO: Yeah, definitely indeed. And I have a hunch it’s going to get even busier for you. When we were last chatting, we were talking about the revelations, that the machines that were used here in Massachusetts, the blood alcohol testing units.
MR. BOWSER: I would say breath alcohol.
STUDIO: The breath alcohol. Apologize. Were not — were not properly calibrated and the belief at the time, or at least the assertion at the time by the government, by the state officials who kind of oversee this were, well it was giving false results to the testers at the time as well. They couldn’t possibly have known that the machines weren’t working. And it was only discovered afterwards through a back computer server, if I’m kind of paraphrasing this whole thing correctly, right?
MR. BOWSER: Well there’s actually, there’s a few different issues. I mean probably last April, May, June, we spoke about the fact that the machine has attached to it, the breathalyzer machine in Massachusetts is a Drager 9510. Attached to that machine is a simulator solution. In Massachusetts we use a dry gas. It’s a known alcohol concentration. The machine during a subject test is suppose to go out to that simulator and make sure that it’s reading what it knows to be a .08, as a .08, plus or minus, you know, from an .074 to an .086, whatever it may be. It’s a splotch, I know that’s exactly what it is. It was not. It was going out and it was reading that simulator outside of the accepted range and then coming back and telling the operator, keep going, finish the test, when in fact it was designed and the software was suppose to catch that and say oh no, abort the test, get the machine back to the OAT because it needs to be re-calibrated and adjusted because it’s out of tones. That’s what was going on. Then there was a decision last spring saying that all defendants in breath test cases are entitled to an evidentiary hearing to challenge the scientific validity of the breath test device to include whether the machine is calibrated correctly, whether the software or the source code works properly, whether the machine is specific for alcohol and alcohol alone, and that’s resulted in what’s called the consolidated litigation. There were several hundred cases that were stayed across the state, joined for one hearing before one judge, and that one judge, Judge Brennan out in Concord District Court is going to make a decision that will be binding. Instead of doing hundreds and hundreds and hundreds of scientific hearings, we’re going to do one. I happen to be one of the five lawyers that are part of the defense team of that consolidated litigation. Greg. Oberhauser here in Lowell is another. Joe Bernard from Springfield. Jay Milligan down from Norwell. Steve Vaillancourt out in Fitchburg. But anyway, through that litigation, we’ve essentially gotten a hold of every single electronic version of every single breath test on this device since it’s been online, which is 20,000 plus tests. And now we’ve come to find out that when OAT annually certifies these devices, meaning they take it off the bench at the barracks, they bring it back to the laboratory and they put it through an annual calibration testing sequence, and then they certify that the device for the next year, just like they would do for a radar device on a speeding —
STUDIO: Uh-huh (yes).
MR. BOWSER: — ticket, they would do the same for any medical device. Any kind of measuring instrument has to be cal — when you pump gas, the Commonwealth comes out and the weights and measures comes out and makes sure that a gallon is a gallon.
STUDIO: Yeah. The sealer of weights of measures is called the position.
MR. BOWSER: Exactly. It has to be done. Anything that is making measurements, and we’re talking about measurements that are used in criminal prosecutions, OAT, the Office of Alcohol Testing is suppose to take these machines out once a year and then calibrate them within certain tolerances, and then certify, you know, under oath, that this machine is good. Well it turns out that when you read their protocol, it’s about 20 pages, as to how do we calibrate a device, they in many instances, and when I say many instances, in hundreds and hundreds and hundreds of cases, they have done that annual certification calibration. It’s outside of their own protocols, and they’re signing off and calibrating the device and putting it back online. So every case test that follows that annual certification is suspect and quite frankly tests that preceded it be suspect.
STUDIO: So if I’m reading this clearly and to kind of try to put it into a plain English here. At the time when this, you know, error because — in the calibrating was discovered, the story line put out there was well, the machine was giving a false — it was giving a false —
MR. BOWSER: Last year — last year —
STUDIO: — like we’re okay, proceed with the testing. When it should have been giving a warning to don’t do this, it’s not in — it’s not in play.
MR. BOWSER: And last year’s response from the executive office of public safety was, when the machine was checking the simulator solution during a subject test. When you got arrested and you were submitting to a breath test at the barracks. If it was outside of tolerance against the known simulator, the executive office of public safety said that was human error, that was operator error. Nothing going on here, nothing wrong with the machine, it’s just a patch that we have to put in the software and the operator should have recognized it. And what was initially 30 cases, then 40 cases, then 60 cases. All of that came about essentially at the same time that this new decision came down saying, hey we’re entitled to challenge the scientific acceptance validity of this particular device. So all of this is kind of coming to a head. And through that litigation now, we’ve gotten a hold of every single test that they’ve ever done on this machine and we’re coming to find out that they are not following their own rules, their own protocol for certifying, calibrating devices. And they’re outside of tolerance. And what’s scary is they’re signing off and signing a certificate and an affidavit saying this machine works and we’ve tested it. Pursuant to our protocols it is calibrated, it’s not.
STUDIO: So we have now gone from human error or just an honest mistake to what appears to be intentionally putting something, a testing device out there on the streets that they know is not going to do the job it’s suppose to do by the legal standards, and by the standards of the manufacturer of the machine has put out there.
MR. BOWSER: Actually their own standards. I mean these are the people, OAT, Office of Alcohol Testing is a government agency, it’s part of the executive office of public safety under the wing of the state police. They are the state agency that is mandated to monitor, prepare, maintain, calibrate and certify breath testing devices for use in criminal prosecutions. And pursuant to their own rules, the machines are not properly calibrated, but they’re signing off on them, putting them back online, putting them back on the street to test, to prosecute, to convict people. And whether it’s malfeasance or intentional acts, but it’s wrong.
STUDIO: I can’t help but assume it’s intentional. But it’s interesting because when this first came out, there were questions about, well does this mean that they will no longer use this machine to test. And I was kind of flabbergasted that the response of law enforcement was, oh no, we’re going to keep using it, there’s nothing wrong here. Is that because they knew all along that yeah, it was — now we’ll — because we really know what the problem is?
MR. BOWSER: No, I think —
STUDIO: Or were the individual officers who were pulling you over on the street. Were they in on this?
MR. BOWSER: Absolutely not.
THE COURT: I think any front line law enforcement trooper, local cop, local prosecutor, local judge, these folks have no idea. We’re all relying upon the state agency, Office of Alcohol Testing, to do their job. And their job is to calibrate and to certify the accuracy and the reliability of these devices. And now we’ve come to find out now that we’ve looked at every single test for the last several years, and every single annual certification, there are annual certifications out there that are outside of their protocols, that don’t match their own rules, and they’ve certified them anyway. And the local prosecutor, local cop, local judge, local defense lawyer didn’t know this. Now we do.
STUDIO: You know it’s funny, people always say I’m a conspiracy theorist and I always question, I don’t trust government. You know, here’s why. And you know what’s striking is, if they’re going to intentionally put something out there that’s going to produce false evidence for a drunk driving case, what do you think they’re going to do for a murder conviction or a more serious crime. They won’t hesitate to do the same. I mean it really calls into question the validity of all state testing. We had that scandal with, you know, the crime lab, Annie Dookhan. You start to wonder, now how many people might actually be sitting in a prison that are innocent.
MR. BOWSER: Yeah. Well as far as — I’ve always been suspect and suspicious of breath testing devices in general. And now I can only — I mean all of my breath test cases are essentially stayed pending a decision coming out of this consolidated litigation. And anyone who has a breath test should absolutely, and when representing someone with a breath test, should be demanding that that case be stayed as well until this is resolved. I mean we have a gentleman, Thomas Workman. He’s an engineer by training. A software engineer. He’s a lawyer as well. And he is the gentleman that is compiling all of the information that we’re deriving from all — it’s a massive amount of information. Thankfully he’s capable of doing it. And just in his, you know, analysis that he’s done thus far in the last few weeks, he’s found that a huge percentage of cases are affected because they were done on machines that did not pass, should not have passed the annual certification.
STUDIO: Does this have the making of a giant class action suit?
MR. BOWSER: I don’t think it’s class action in the sense that you’re going to sue anyone, but it is a class action in the sense that anyone with a breath test, that case should not go forward.
STUDIO: Will this cost the taxpayers money? Will there be a monetary settlement here if we continue down this path of finding out there was intentional misrepresentation?
MR. BOWSER: I don’t think so.
MR. BOWSER: I think it’s more, the remedy is going to be more in the form of — what I’m afraid of — not afraid of, but what I’m anxious about, is there are probably folks that went to trial and were convicted, or went to court and pled out.
STUDIO: Or pled guilty, yeah.
MR. BOWSER: Pled out because they were looking down the barrel of a .10 or a .09 —
MR. BOWSER: — or a .11 breath test, having no idea that hey, oh by the way, that machine that you blew into at the barracks or at the local P.D., that machine wasn’t really calibrated and it’s really not accurate. And that certificate that is attached to it from OAT under oath, stating that it’s calibrated and certified, it’s not true.
STUDIO: I know at the time you were trying to go back a couple of years in getting some of these results. How far back do you want to go now?
MR. BOWSER: Well now —
STUDIO: Since the inception of this machine?
MR. BOWSER: The data that we have now is, yes, since the inception of the 9510, which is I think going back to ‘09, 2010, is when it started to come online. It was certainly online statewide by 2011.
STUDIO: If I’m somebody who in the recent past has —
MR. BOWSER: Has done it. He’s asked each of the five lawyers that are representing the multiple defendants to give him a list of all of their cases in the way that he — he needs certain information to confirm whether your test was done on a machine that has an inaccurate or failed calibration certificate. So you could certainly, yeah, work backwards and find that information out. But that’s the concern, is that there are people that have gone to trial, pled out, made decisions on their cases on devices that were not necessarily calibrated.
STUDIO: How can folks get in touch with you if they want — for this specific reason.
MR. BOWSER: Oh, the website is bowserlaw.com. I’ll hopefully have this, I guess broadcast up on my website. But the consolidated litigation is ongoing, it’s going to — it will continue to go on I think for several months before we actually have a decision. And that decision will affect, you know, thousands and thousands of breath test cases across the Commonwealth.
STUDIO: You strongly recommend somebody get in touch with an attorney though, if in the recent past they have a conviction?
MR. BOWSER: Yes.
STUDIO: Or especially if they pled out.
MR. BOWSER: Every case there are facts. I mean you could have a breath test in a case where there is overwhelming evidence in addition to the breath test.
STUDIO: Yeah, if you crashed your car and you were spilling vodka out of your —
MR. BOWSER: But if there was, you know, if it’s a close case and it involved a breath test and a decision was based on that evidence, you would definitely want to go back and take a second look.
STUDIO: Alright, bowserlaw.com. It is 8:02 here on 980 WCAP, chatting with Attorney Michael Bowser, member of our Expert Network. Before I let you go, wanted to talk about first of all Super Bowl coming up. That’s a big drinking party, house parties, people are out in bars playing those —
MR. BOWSER: Yes.
STUDIO: — for those entertainment purposes only Super Bowl Squares. Your advice to them. As somebody who makes your, you know, makes a good living or representing folks who do stupid things after they’ve been out partying?
MR. BOWSER: It’s known, I mean it’s almost a national holiday, isn’t it?
STUDIO: Yeah. And the police know that too.
MR. BOWSER: Yes they do. And I’m sure that they will be out in force and they will be looking for those who are unsafe to drive. Take it easy, be safe, and you know, find someone that can get you home safely if you’re going to imbibe and enjoy yourself, but yeah, be aware of the fact that it’s a recognized drinking day. Like night before Thanksgiving, like New Year’s Eve, like Christmas. I mean I see a spike in the number of intakes and calls that I get around the holidays. And it’s the fact that people are out and about and celebrating and attending parties and events. But it’s also because enforcement is targeted around those certain days and they certainly, the police, the law enforcement locally take it upon themselves to ramp up their efforts around those big celebratory days.
STUDIO: Lastly, as someone who is worked in the courts around the Commonwealth, but specifically here in the City of Lowell.
MR. BOWSER: Yes.
STUDIO: I assume you’re looking forward to the spring where they promise after what seems like an interminable wait, there will be — maybe not a giant digging machine, but at least a shovel in the ground of the new courthouse in the milton Canal District. Are you — what will that mean to those of you who are in this profession?
MR. BOWSER: Well here locally in Lowell, it means everything. I actually had a conversation with Eileen Donahue and I don’t know too many politicians. I know Eileen. I had the pleasure of trying a case with her in federal court years ago, and I got to know her then. If you don’t know her, she’s a wonderful trial lawyer. But I —
STUDIO: With her or against her?
MR. BOWSER: Co-counsel.
STUDIO: Co-counsel, okay.
MR. BOWSER: She was — yeah, and Steve Rappaport, the three of us together. But anyway, I had an opportunity to speak to her about some of this breath test stuff, and we were talking about it, and she assured me that yes, ground will be broken and it’s going to be a green building and construction will start in the next fiscal year, as of July. And we need it here in Lowell desperately. More so than — I travel all over the Commonwealth and I’ve been to the new facilities in Worcester, in Plymouth, in Taunton. It seems as if everybody has a new facility except Lowell and we need it desperately.
STUDIO: Will that mean more trial work for you here in Lowell? Will cases be less likely to go out to other courts because of the condition of the court or?
MR. BOWSER: Yeah. I’m hoping that just the administration of justice in general becomes an easier task for all involved. The defense, the prosecutors, the administrators at the courthouse, the judges. Because the facilities in and of themselves in Lowell, they just don’t lend themselves to an easy day. Whether it’s getting up and down the stairs, windows open in the middle of December. Freezing cold in one room, oppressive heat in the next. Ceiling tiles falling in the hallways, on top of jurors, and leaky roofs. It’s a mess. We need a safe, clean, modern facility for everybody in Lowell that participates in the court system.
STUDIO: And the information, just for people who say, well it’s a courtroom, it’s suppose to be drab and dreary. But when that’s your work environment everyday, you know, forget the lawyers and the defendants and the — you know, think about the clerical people that have to go in there each and every day. Your work environment, the quality of that building you’re in is paramount to a productive work environment, let alone a happy one.
MR. BOWSER: They, you know, in Lowell District, Lowell Superior, the folks that work up there, they deserve it more than anybody. They really do.
STUDIO: Attorney Michael Bowser. Again, if folks want to get in touch with you, and I strongly recommend they do if they’ve had a conviction in the last couple of years for OUI.
MR. BOWSER: Oh, www.bowserlaw.com.
STUDIO: Alright, board certified, one of a handful of board certified OUI specialist in the Commonwealth and all of New England for that matter. Thank you, Counselor.
MR. BOWSER: Thank you.