Ready For Trial

Expert Network Interview of Attorney Michael Bowser January 30, 2014

January 30, 2014

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STUDIO: Joining us in studio right now, a member of our Expert Network, local attorney Michael Bowser. You have offices in Chelmsford, you have offices in Nashua. You just heard the Governor’s call. Could you please hire somebody?

MR. BOWSER: I did.

STUDIO: You did hire somebody?

MR. BOWSER: Yes I did.

STUDIO: See, because you have increased business.

MR. BOWSER: I do.

STUDIO: It’s from your appearances here on the radio.

MR. BOWSER: No, I just put to work a high school student who’s been very helpful. We moved offices. We relocated the Chelmsford office after about 12 years on Chelmsford Street over at the Talbot Insurance Building. We purchased a condominium at Courthouse Lane, on Parkhurst Road behind Hannaford’s and Drum Hill.

STUDIO: Oh gee, so I can walk to your offices now when I need your legal help.

MR. BOWSER: Yeah. It was nice. We built it out so it’s a brand new, clean space. We had Greg Noonan, Advanced Painter or Painting by Advance, you know Greg I’m sure.

STUDIO: Of course I know Greg.

MR. BOWSER: He did a wonderful job, it really came out beautiful. I had a guy Tim Ploof that I went to high school with that did a lot of carpet work. If you ever need tile and carpets, he did a beautiful job as well. So very busy with that move.

STUDIO: Alright. So now you’ve got luxurious new offices, ready to meet the public. That’s a good thing too ‘cause you’ve had a very busy month on the court docket. And unlike the Patriots, you’ve scored a lot of victories I understand.

MR. BOWSER: Well this month has been — in terms of the volume is you know somewhat typical. I just was doing the numbers on the way over here. I had 11 trials scheduled in the month of January. Six not-guilty or dismissals. Two trials were not reached. One was actually snowed out in Hingham with the snow storm and the state of emergency. One was a plea. One was a guilty finding. I did have one.

STUDIO: You did lose one, huh?

MR. BOWSER: I do. And I lose cases, you know, people are surprised to learn, I lose cases all the time. Because I try everything.

STUDIO: What’s a typical batting average for an attorney? What do they — they go — is 50/50 considered a success?

MR. BOWSER: 50 percent, if you’re winning 50 percent of your trials, that’s really high.

STUDIO: You’re a miracle worker, right?

MR. BOWSER: Well that’s a good — that’s a good percentage. Especially if you’re trying a lot of cases. So if you ever meet the lawyer that says I’ve never lost a case, run for the hills because that lawyer has probably never tried too many cases.

STUDIO: Well I mean first of all, you’re starting at a disadvantage. You’re starting with two strikes against you already in the at bat because most people who hire a lawyer do so because they need one. It means they’ve usually done something wrong.

MR. BOWSER: Well.

STUDIO: Usually, not always.

MR. BOWSER: There’s — the level of proof required to make an arrest, as we’ve talked about before, is probable cause. And at roadside, most police officers are going to have at hand at least probable cause to make the arrest. But there’s a much different standard when you’re asking for a guilty finding returned by a judge or a jury. I’m going to make that argument today. I have my 11th trial today. So it’s a different standard. But I think anyone who is charged with an offense as serious as operating under the influence or DWI should be represented by a lawyer.

STUDIO: Very smart advice indeed. Now last time you were here, we talked an awful lot about the operating under the influence laws and how it pertained to drug use.

MR. BOWSER: Uh-huh.

STUDIO: Prescribed medications, legally prescribed and taking medications or illegal drugs. You actually had this month an interesting case, an OUI case on marijuana.

MR. BOWSER: I did.

STUDIO: Give us a little bit of the back — whatever you can divulge legally here.

MR. BOWSER: Sure. No, we’ve talked it he past, we’ve discussed the difference between OUI alcohol, OUI prescribed medications, OUI illicit drugs. And I had a trial this month that was an OUI marijuana charge. And what was interesting about that is there was clearly, there was a motor vehicle stop, police received a phone call, what I refer to as a citizen cellphone, someone who called in anonymously on a cellphone and dropped the name of a plate, a description of a vehicle and said he looks like he’s having some difficulty. The police followed for a short distance. They saw some marked lanes violations, some difficulty going through an intersection. They stopped him. And the only evidence of consumption was that he had recently smoked marijuana and he in fact had on his person a small amount of marijuana, which was not a crime, it was less than the criminal threshold of one ounce. They got him out of the car, they conducted four field sobriety tests and he was arrested and charged with OUI. In this particular case, there were a couple of priors way back, way way back. So this would have been in fact his third.

STUDIO: Drug priors or alcohol priors?

MR. BOWSER: Alcohol priors.

STUDIO: Okay.

MR. BOWSER: Two priors were both involving alcohol, but the consequence of this one would have been an eight year loss of license through the Registry and potential obviously jail if convicted.

So what was interesting is the arresting officer, a regular patrolman from a local police department, conducted the field sobriety tests, formed an opinion that he was under the influence of marijuana; however, one, in Massachusetts recently under Commonwealth v. Canty, an officer cannot say that he believed a person’s ability to operate safely was impaired by alcohol. They can state that they thought that they were impaired or intoxicated, but that’s the only substance that a layperson or a police officer can testify to as an opinion of impairment. Because alcohol is so common to everybody, that a layperson can have an opinion that a person’s impaired by alcohol.

That is not the case for marijuana, opium, cocaine, PCP, whatever the other substances may be. You need to be a toxicologist or a doctor or possibly a drug recognition expert which is a certain type of police officer that’s been through very specialized training regarding drugs. And he was none of those.

So going into the trial, we had asked the judge to restrict his opinion and his ability to state an opinion that he was impaired and by what. And essentially the Commonwealth’s hands were somewhat tied with what they could present for evidence in terms of impairment. It was a not guilty verdict on those facts. Because they didn’t have the expert, they didn’t have the toxicologist, they did not have a medical doctor.

STUDIO: I think this is going to be a fascinating aspect of law in your particular field of expertise as we go forward, as we eventually open up those medicinal marijuana dispensaries. As people eventually start, you know, smoking it medicinally in their car because hey, it’s a drive somewhere and I need to take my medicine, you know. Nobody would think twice if you popped a, you know, an antibiotic while you’re driving or whatnot. But also because the laws are different state by state. While medicinal marijuana is legal in Massachusetts, you know, can you use medicinal marijuana in New Hampshire if you’re a Massachusetts resident. You know, people go shopping at Christmastime or other times to the malls. People like to go to those casinos in Connecticut because, you know, it’s going to take us another 20 years to –

MR. BOWSER: Right.

STUDIO: — to license ours here in Massachusetts. How do those law translate if you’re in another state?

MR. BOWSER: Well, I see it all the time. Unfortunately, you know, folks who believe that — well folks that have less than one ounce of marijuana on their person, it’s contraband, it’s a civil infraction, it’s not a crime. You drive up north over the border, you know, ten miles from where we’re sitting right now, it’s a crime. Possession of marijuana is still a crime in the State of New Hampshire.

STUDIO: Whether you have a legitimate medicinal license in Massachusetts? You can’t transport it across the border?

MR. BOWSER: Possession of a controlled substance including marijuana is a crime in New Hampshire.

STUDIO: No kidding.

MR. BOWSER: Yeah.

STUDIO: So if you’re — let’s say you have a lake house up at Lake Winnipesaukee and you decide to go spend a couple of weeks up there around the 4th of July. You cannot bring your medicinal marijuana with you?

MR. BOWSER: I have that case pending right now in Ossipee.

STUDIO: You’d think I almost knew what I was talking about.

MR. BOWSER: Yeah.

STUDIO: Oh really?

MR. BOWSER: Yes, I have, yeah I have —

STUDIO: What’s the penalty?

MR. BOWSER: Well they’ll usually charge possession as a first offense. If it’s a small amount, will typically be charged as either a Class A or a Class B misdemeanor. And the A carries up to a year in jail, a B is a fine, no jail. And most people do not get sentenced or receive a jail sentence.

STUDIO: Uh-huh (yes).

MR. BOWSER: But it’s a criminal offense and it’s a criminal drug offense and the collateral consequence of a drug conviction, especially if you’re a college student, you literally jeopardize and may lose your ability to received financial aid for a drug conviction, including marijuana. So the collateral consequences of a conviction are often worse than what the judge does to you in the courtroom.

STUDIO: And if you’re thinking of becoming a police officer or a teacher, any profession where you have to undergo a CORI check, this pops up?

MR. BOWSER: It could very well, yes. CORI — a misnomer, a CORI is Criminal Offender Record Information. That is a Massachusetts database.

STUDIO: Okay.

MR. BOWSER: When people are –

STUDIO: Could it affect your ability to keep that medicinal marijuana license in Massachusetts or other states if — do they warn you when you — you know, when a doctor prescribes it and you’re told, you know, okay, you can buy it legally here in Massachusetts. Do they warn you, by the way, you better keep it in Massachusetts and you better only take this prescription in Massachusetts or you can get in trouble?

MR. BOWSER: I don’t know. Actually that’s a good question. I don’t know the answer to that. I don’t know whether a criminal conviction for possession in another jurisdiction would jeopardize your ability to possess medicinal marijuana. I don’t know the answer. I’ll find out.

STUDIO: Did your client in New Hampshire though, that you’re working on now. Did he or she know that they couldn’t take it out of Massachusetts even though they had a legal prescription?

MR. BOWSER: He didn’t have a legal prescription. He wasn’t a medicinal user.

STUDIO: Oh okay.

MR. BOWSER: He was someone that was well within the range of what is considered a civil infraction, not a criminal. Like much less than an ounce, a very small amount of marijuana, which would not have been a crime in Massachusetts. He wouldn’t have been arrested in Massachusetts. There wouldn’t have been probable cause to search his car in Massachusetts. But in New Hampshire he was in fact charged with a crime.

STUDIO: Which makes me wonder why has the federal government so far stayed out of this issue. It appears that right now the Obama Administration is okay with letting every state have its own –

MR. BOWSER: Right.

STUDIO: — laws on marijuana and whatnot. They seem to not want to allow states to have their own laws on other things, but in terms of legalized marijuana, they’re okay with that. But this has, you know, interstate complications.

MR. BOWSER: Yeah, they’re okay, but there could very well be federal implications. And something I read in the newspaper, it was either yesterday or the day before, was that many banks are absolutely shying away from funding or financing some of these medical marijuana dispensaries that are now in the pipeline in Massachusetts. They can’t get financing from banks here in Massachusetts because the banks are fearful that the feds at some time in the future could step in and say no, regardless of what you think your state’s rights are, we’re going to declare this illegal. And they’ve had those battles somewhat in California as well.

STUDIO: Plus they’re non-profit, so you know, who would want to finance a business that doesn’t make a profit, right? Sarcasm.

Attorney Mike Bowser, a member of our Expert Network. Offices in New Hampshire, Nashua, and a brand new office in Chelmsford, Mass. How do folks get in touch with you if they are ever in need of your services? And despite the fact we want you to make lots of money, we hope that people don’t need your services.

MR. BOWSER: We are at 6 Manchester Street in Nashua, New Hampshire. We’ve been up there for about 15 years. And the new office is 2 Courthouse Lane, Unit Number 4 in Chelmsford. The website is www.bowserlaw.com, and you can follow me on Twitter @BowserLaw.

STUDIO: And we always learn something new each and every week when we chat with you. Thank you so much, Counselor.

MR. BOWSER: Thanks, Ted.

STUDIO: Attorney Mike Bowser joining us this morning here on 980 WCAP.

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