Ready For Trial

Expert Network Interview of Attorney Michael Bowser September 26, 2013

October 10, 2013

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STUDIO: It is time for us to welcome in a member of our Expert Network, Attorney Michael Bowser joining us in the

studio. Good morning, Counselor, how are you?

MR. BOWSER: Good morning, Ted, how are you doing?

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

MR. BOWSER: Nice to be here. I wanted to tell you, I’ve got a lot of positive feedback about your show and a number of people have approached me and said they’ve enjoyed my segments and I want to thank them for listening, and I tell you that they enjoy listening to you.

STUDIO: Can I get you to write that down in like a testimonial so my boss can have it and I can bring it into my next contract negotiation?

MR. BOWSER: Absolutely.

STUDIO: Sounds good. I know you want to give me a field sobriety test today and I held back, I only did my three morning shots of Tequila instead of five, so that I could have somewhat of a chance to pass it here. But before that, I’m just kind of curious, I wanted to get your thoughts on the case up in New Hampshire. The bicyclist who — I’m sorry, the 19 year old who crashed into a bicyclist, tragically killing two. And this morning we are seeing charges being filed now against the woman who supplied her allegedly with the drugs and also the woman who’s automobile the unlicensed driver was driving. The charges right now are supplying narcotics to somebody and also knowingly allowing an unlicensed person to drive your vehicle.

MR. BOWSER: Uh-huh (yes).

STUDIO: How much trouble is the 48 year old woman — and I know the 19 year old is in a world of trouble, but how about the 48 year old?

MR. BOWSER: The 19 year old is in a lot of trouble, charged with vehicular assault and that in New Hampshire can certainly carry a state prison sentence times two unfortunately, because two of those cyclists from Massachusetts were killed as a result of that collision. The 48 year old. I just learned of this this morning. I’m in the midst of a three trial week, so I have not been following the news that closely, but I did hear this morning that the second person is going to be charged with not only supplying a, I believe a prescribed drug, not prescribed to that person, as well as the vehicle, knowing that the driver did not have a license to drive. Apparently the 48 year old picked up the 19 year old from an earlier motor vehicle stop about eight hours earlier in the day.

STUDIO: Correct.

MR. BOWSER: I believe it was the Hampton Police Department, had made a motor vehicle stop for a speeding violation, held the vehicle, and apparently this person retrieved not only the vehicle, but the 19 year old, and allowed that same 19 year old to drive.

So is she in trouble? Absolutely. And I would imagine she’ll end up before the Rockingham Superior Court in New Hampshire.

STUDIO: Well what are we talking about here in terms of potential trouble? This is the part that I’m really fascinated with why it’s become so public. Obviously illegal to supply drugs to somebody but it happens every day. We probably, you know, slap on the wrist and dismiss millions of cases a day in the United States on that. Allowing somebody to drive a motor vehicle improperly. Again, I would imagine slap on the wrist is a penalty.

Where this turned into a vehicular homicide or whatever those charges ultimately turn out to be, can the 48 year old somehow be connected as an accessory to this? Is that the end game here?

MR. BOWSER: I don’t think it’s an accessory. And I don’t know specifically what charges have been brought against that 48 year old. I would imagine that they may be looking at it as a reckless conduct, where her decision to supply the vehicle with knowledge that the driver not only was possibly under the influence, but without a driver’s license, is reckless conduct. Meaning a decision or behavior or a judgment that put someone else in danger and she did that knowingly.

STUDIO: Reckless conduct. Is that normally a serious penalty?

MR. BOWSER: Can be. I just tried a reckless conduct criminal trespass two weeks ago in Rockingham County involving a motor vehicle. And it was ultimately, things were resolved favorably, but it was a felony.

STUDIO: Right.

MR. BOWSER: The reckless conduct charge, the operation of a motor vehicle where someone was allegedly almost placed in harms way, that was brought as a felony charge.

STUDIO: So it is a serious charge then. Obviously the blood work will come back. It appears that, you know, the drugs were supplied at 1:30 in the morning on a Saturday. Sounds like, you know, a Friday night of partying melts into Saturday, and then on Saturday morning at 8:00 a.m., the person gets behind the car. Does the time away from it, you know, is that going to bring in driving while impaired situation there?

MR. BOWSER: Well you’re ahead of me on the facts. That’s information that I did not know, but every substance that has the ability to impair a person’s ability to drive safely has a half life. Whether that be alcohol or any number of prescribed medications or even illicit substances. Meaning you can have a drug on board. The effects of that drug can be short lived, they can be a number of hours, and then the presence of that drug in the system or the metabolites or the cast offs of what you see after that drug has metabolized, can be present in the system for hours, days or weeks.

So yeah, the blood alcohol or — strike that — the blood toxicology, if that’s the allegation that she was impaired is going to be critically important.

STUDIO: I guess what I’m trying to dig at here is where is the responsibility of the supplier, or in the restaurant, bar, hotel business, the server. And let’s say somebody’s at an establishment. We’ll pick my establishment. They’ve had a few to drink.

MR. BOWSER: Uh-huh (yes).

STUDIO: They, they get in their car, they get home at 1:30 Saturday — early Saturday morning and fall asleep. No accidents, no nothing, nobody’s harmed. Then this person gets up at eight in the morning in the hypothetical and gets into a car accident, after sleeping for six hours. Am I as the server like this woman in New Hampshire, am I still responsible? Where does my responsibility in terms of the alcohol supplier begin and end?

MR. BOWSER: Well if you’re talking about criminal responsibility versus civil responsibility, two different things. But I’ll put it in terms of civil. Basically every person whether someone is serving alcohol or driving a motor vehicle or maintaining a property, is held to a reasonable person standard. So at your particular restaurant, was it unreasonable to serve somebody two glasses of wine with dinner and then allow them to drive home. Absolutely not.

Is it reasonable to serve a person two glasses of wine when that person walks into your establishment already and clearly impaired, yes it is. So it’s a very fact specific analysis, but generally every person that dispenses alcohol or prescriptions, drugs, whether it’s a doctor or a pharmacy or a parent, they’re going to be held to that reasonable person standard.

So again, I’m not that familiar with the New Hampshire case. If the allegation is that someone provided her with a substance several hours earlier, you know, it becomes a pretty intricate analysis whether that person —

STUDIO: Yeah, this is where it gets murky.

MR. BOWSER: I mean this person is, it’s a layperson, it’s not a doctor, it’s not a nurse. Whether it’s a parent or not, it depends.

STUDIO: 7:53 here on 980 WCAP, chatting with Attorney Mike Bowser, one of the — how many is it again? Five board certified?

MR. BOWSER: One of three board certified DUI defense specialist practicing in Massachusetts and one of only two licensed and practicing as a DUI defense specialists in New Hampshire.

STUDIO: Alright, so I’ve been joking this morning to all the listeners out there. I have not had three shots of tequila, because I knew I was going to take a field sobriety test with you. On a normal morning I would though, however. But let’s do the hypothetical. I have had a couple to drink and I have been pulled over. It’s nighttime now. I have — by the way, I have my french vanilla coffee and I’ve already chewed some gun. Does that play a factor into how I fair on either my blood test or my field sobriety test?

MR. BOWSER: The fact that you’re chewing gum does not factor into field sobriety testing, nor will it factor into breath testing or blood testing; however, I have had dozens of cases where the mere presence of gum or a cigarette will be alleged by a police officer to be an attempt to cover up the odor of an alcoholic beverage. So if you are chewing gum when you get pulled over late at night, the police will definitely take note of that.

STUDIO: Is that allowed as evidence?

MR. BOWSER: Well —

STUDIO: Because I chew gum all the time.

MR. BOWSER: They will often times take the position that if you have a cigarette or you are chewing gum, it is an attempt to cover up the odor of whatever you have consumed.

STUDIO: So what is the standard field sobriety test consist of? What are they doing nowadays? I’ve actually happened upon scenes driving home late at home all the time, and I see the folks who I instantly feel sorry for behind their car. What do they ask you to do? What are we talking about?

MR. BOWSER: A standard package of field sobriety testing — when I say standard — field sobriety testing, they are essentially roadside balance, coordination and direction following exercises. So you take yourself out of your vehicle at midnight, placed in a breakdown lane of Route 3, and you are asked to do a series of three different exams. The first one is called a horizontal gaze nystagmus test. And that is when you see the officer holding a stimulus, whether it’s his finger or his pen, before your eyes. Very much like you see the doctor do in the eye exam room or the emergency room. And that officer will track back and forth with a finger or pen asking you to follow the pen with your eyes and your eyes only. And what he or she is looking for is the involuntary horizontal movement or jerking of the eyeball as it tracks that stimulus. Because there is science behind that test that indicates that a person who is under the influence of alcohol or some other drugs, the presence of that nystagmus will be enhanced. Meaning everybody’s going to have some movement horizontally of the eyeball, literally jiggling of the eyeball. But the presence of alcohol enhances that nystagmus. That test in Massachusetts is inadmissible because the courts here have said, listen, if you want to talk about the neurological effects of alcohol upon the eyes and the nerves and the brain, you really should be a doctor. And so therefore they can conduct that test and they can use it in the field, but they cannot testify in court.

The other two are the standard, the walk and turn. Nine steps up the line, turn, nine steps back heel to toe. And then the last one is the infamous one-leg stand test.

STUDIO: I’ve yet to see any of these tests conducted, and they’re very rarely conducted in the daytime, usually it happens at night. So it’s dark, there are lights coming at you, coming from behind you from motor vehicles, and there are those flashing blue lights. Do those — I would imagine those can affect — especially the eye test. I would imagine those have an affect on it, do they?

MR. BOWSER: I just tried a case on — well the eye exam test, again, not admissible in Massachusetts. It can come in New Hampshire where I practice, and officers are trained to make sure that people are not looking either at passing traffic, because the mere presence of those lights on a highway as they zip by is definitely going to affect your eyes tracking ability. The flashing lights of the cruiser are suppose to be turned down in the front so that they’re not facing. But even when they are, the officers will often say, well I turned off the front facing blues. If you’re in a darkened roadway and the rear facing — but you’re still getting that strobe effect —

STUDIO: You can see the blues from a mile away.

MR. BOWSER: — off of every tree. And interestingly, almost every traffic stop is two cruisers with lights activated, not just one, because standard operating procedure for most departments, for officer safety reasons, traffic safety, is to call a second officer in to act as backup while the first officer conducts those field sobriety. So not only are you under the lights and scrutiny of one police officer in a marked cruiser, but often two.

STUDIO: And there are headlights on on the cruise and your vehicle as well, because it’s dark.

MR. BOWSER: Spotlight, take down lights, flashing lights, strobe lights. And then they will deactivate many of those lights, but still it makes for a very — I had testimony in a case this Tuesday. It makes for a very chaotic scene.

STUDIO: Alright, it’s 7:58 here on 980 WCAP. Austin, I’m going to ask you to do a little bit of play by play here and we’re going to override the ABC news because I know we’re going to bleed into it here, but Attorney Bowser is about to give me — and I promise I have not had any alcoholic beverages since that beer I had Saturday night after work. So my blood alcohol level should be zero.

MR. BOWSER: So why aren’t your glasses, your cups ever clear then?

STUDIO: Here’s my hunch though. I am going to fail the walking and turning test. I have terrible balance. So I’m going to step out from behind my microphone here and give this field sobriety test a shot as Austin gives you the play by play.

AUSTIN: There you go. He’s turned off the mic.

MR. BOWSER: And Teddy, I’m actually certified — I’m going to back you up and I’m going to give you this test exactly as it would be given in the field. I want you to stand right now with your right foot in front of your left foot on the line between the tiles here, the green tile, right foot in front of left foot. I do not want you to begin until I tell you to begin. Keep your arms down at your side. When I tell you to begin, I want you to walk in the following fashion heel to toe, one, two, three. When you get to your ninth step, you’re going to leave that left foot planted and you’re going to turn using three choppy steps, and then you’re going to come back in the same fashion heel to toe counting out loud.

AUSTIN: Teddy just fell.

MR. BOWSER: Do you understand the instructions as I’ve given them to you?

STUDIO: I think I do, but I’m going to fail them.

MR. BOWSER: Okay. Begin the test.

AUSTIN: So Teddy looks nervous.

STUDIO: One —

AUSTIN: And he’s walking.

STUDIO: — two, three, four.

AUSTIN: Can actually hear him in the background.

STUDIO: — five, six, seven —

AUSTIN: He’s running out of room, he’s taking big steps.

STUDIO: — eight, nine —

AUSTIN: I think he’s turning. He turned.

STUDIO: I almost just lost my balance.

AUSTIN: And he’s lumbering.

STUDIO: Two, three, four —

AUSTIN: See, watching Teddy from the other room, I would say he’s drunk.

STUDIO: — five, six, seven —

AUSTIN: He’s taking steps, he doesn’t look confident in his steps at all.

STUDIO: — eight, nine.

MR. BOWSER: Okay, now that is one of the standardized tests, and without getting into the other ones, I can tell you right now that you actually just failed —

STUDIO: I — I —

MR. BOWSER: — the standardized field sobriety test. And I’ll tell you why. That particular test has eight and only eight designated clues. An officer is trained that if you display two or more of those designated eight clues, that is indicative of impairment. The eight clues being did you maintain the instructional stance, heel to toe, which you did. Did you start too soon? You did not. Did you walk on line? You did. Did you touch heel to toe? You did. Did you stop while walking? Yes you did. That’s a failing grade. Did you raise your arms more than six inches away from your body? You did that on a number of occasions?

STUDIO: Yeah, so I wouldn’t fall over. That’s called maintaining — try telling that to the Flying Wallendas as they’re walking tightropes.

MR. BOWSER: And your turn, your turn was appropriate, and you did nine up and nine back, but you did raise your arms more than six inches away from your body, and you did stop while walking to regain your balance. Those two — so, and a police officer looking at you in the field as trained would determine that your performance of that test at 8:01 a.m. in the morning was indicative of impairment.

STUDIO: It was noticeable to me, and I said to myself, uh-oh as I did it. I took the ninth step, and then I tried to do that three jagged step turn around that you told me about, and I leaned to my right and had to raise my hands to keep my balance.

MR. BOWSER: Right.

STUDIO: Stone cold sober. I have not had a beer and that was just one beer on Saturday night. And I flunked a field sobriety test.

MR. BOWSER: Yeah, and you think of every Olympic games that you’ve ever watched with those world class have given that as an allowable maneuver. So you failed that test.

STUDIO: And I don’t want to advocate for, you know, allowing folks to drive drunk and to get away with things on quote/unquote technicalities. But I just witnessed myself stone cold sober, flunk a field sobriety test. That’s a test that I’m not sure anybody can pass on a consistent basis — maybe kids who have a better, maybe a little better sense of balance —

MR. BOWSER: That’s —

STUDIO: — can do that turn.

MR. BOWSER: And that in my opinion is the easier of the two physical tests. The other one being the one-leg stand. If you’ve got 30 seconds, we can try that.

STUDIO: I do.

MR. BOWSER: Next time. Or do you want to do it today?

STUDIO: Yeah, now what do I have to do on this one?

MR. BOWSER: I’m going to have you stand in that same position. Heel and feet — no, feet together, side by side, hands down by your side. When I ask you to begin, I want you to raise the foot of your choosing, either left or right. But I want you to raise it six inches off the ground so your heel is six inches off the ground, and I want you to point your toe forward. While looking at your toe, I want you to count in the following manner: one-one thousand; two-one thousand; three-one thousand. I want you to continue counting until I tell you to stop. If you have to put your foot down, just bring it back up again and start where you left off. Do you understand the instructions as I’ve given them —

STUDIO: Give them to me one more time. Please.

MR. BOWSER: Yes.

STUDIO: Do I have the right to ask that?

MR. BOWSER: Sure. When I ask you to begin, you’re going to keep your hands down by your side, you’re going to raise one foot off of the ground six inches, pointing the toe. You’re going to keep your foot in that position and you’re going to count in the following fashion; one-one thousand; two-one thousand, three-one thousand, until I tell you to stop. If your foot comes down, I want you to raise it back up and begin where you left off. Do you understand the instructions?

STUDIO: Now I do.

MR. BOWSER: You can begin the test.

STUDIO: One-one thousand; two-one thousand; three-one thousand; four-one thousand; five-one thousand —

AUSTIN: He’s counting.

STUDIO: — six-one thousand; seven-one thousand; eight one thousand, nine-one thousand; ten-one thousand —

AUSTIN: He’s actually doing pretty well. I’m not really seeing much stumbling going on. He’s laughing though. Counting up to 16. Oh, starting to see a little, little worry — stumbling a little bit, but he’s still straight. Teddy, you’re looking good. Don’t fall. That’s the breeze. Blow into the over — don’t laugh. You’re almost there.

MR. BOWSER: I’m going to stop you there because you’ve actually gone 30 seconds and it took you a little bit longer to count. So you’ve passed one.

STUDIO: Woo.

MR. BOWSER: Congratulations — and you —

STUDIO: But I did —

MR. BOWSER: — failed the other one.

STUDIO: — I feel my — I lifted my right foot so I could feel — but my left foot, after about five-one thousand, started doing a little wobbling.

MR. BOWSER: Right.

STUDIO: Again, you get me outdoors at night, lights flashing around me, maybe a breeze going. I might lose my balance, I assume that means I failed the test.

MR. BOWSER: Well the four, and the only four designated clues for that test are do you raise your arms away from your body; do you sway; do you hop on the planted foot; and then do you put your foot down. If you put your foot down more than three times, it’s considered a failure. If you display two or more of those clues; you raise your arms once, you put your

5 foot down once, you fail.

STUDIO: Okay. So I’ve had two beers after work. I get pulled over because I sneezed and swerved, whatever the case may be. And I know that I fail this test stone cold sober, the second one. I know that — I just failed it now, stone cold sober. So I know I’m not going to do well when the officer administers it at 1:30 in the morning. Do I have the legal right to refuse to take those field sobriety tests and the blood test?

MR. BOWSER: In both Massachusetts and New Hampshire, you absolutely have the right to refuse field sobriety tests and blood alcohol breath testing.

STUDIO: But automatically that means suspension of my license.

MR. BOWSER: There is a huge consequence. Now if you refuse field sobriety testing, there’s no legal administrative consequence against your driver’s license. You can tell an officer I would rather not participate in field sobriety testing.

STUDIO: Just like that, use those exact words?

MR. BOWSER: No thank you. And he’s going to say what? And you’re going to say, well my lawyer never to take field sobriety tests. And then that officer is going to have to make a decision. Does he have enough then and there to put you in custody or not. Because you cannot be forced to take those tests and you don’t have to. There’s no consequence to that decision necessarily. But if you’re asked to take a breath or a blood test after your arrest, there is a consequence of a loss of license. And depending on what your prior record is if any, it can be anywhere from 180 day loss of license first time around to a three year loss, a five year loss or even a lifetime loss under Melanie’s law if you have prior offenses. New Hampshire it’s 180 days for a refusal first time around. Two years for a refusal of breath or blood testing if you have a prior within the last ten.

STUDIO: How — so I refuse to take it. I show up in court with you by my side. Do I lose my license until I can prove myself guilty in the trial? Or do I get what every other person gets, innocent until proven guilty?

MR. BOWSER: You — that’s called a chem test refusal suspension. It’s administrative because it comes at you through the Registry. And the only way to eliminate a chem test refusal suspension in Massachusetts or to get through it is either to plead out on a first offense so that you can obtain a hardship license; or go to trial and be ultimately acquitted. If you’re found not guilty, then you’re entitled to ask the judge for an immediate hearing to determine whether your license can be reinstated and, you know, that’s what I do on every case where there’s a chem test refusal still in effect. Upon the not guilty finding, I ask for that hearing and the burden shifts to the Government, the Commonwealth, they must prove that you are a public safety risk.

And I’ve certainly had cases where it’s third, fourth, fifth offenses with a refusal where I’ve gotten the acquittal, and the judge sitting in the particular court has said no, I’m not giving him his license back. So I’ve had that as well.

STUDIO: How much time from the moment I’m pulled over and I refuse to take that field sobriety and blood test. I assume the next morning in court is when your license gets pulled?

MR. BOWSER: Your license, if you refuse a breath test or if you take a breath test with a result over, in Massachusetts you’re revoked immediately.

STUDIO: Immediately.

MR. BOWSER: They notify the Registry by way of that breath test machine, it’s hard wired to the Registry. They take your license, they give you notice of suspension. In New Hampshire, your privilege or your license is revoked effective 30 days after your arrest.

STUDIO: And how long is the process for me to get my fair trial like everybody else. And if I’m acquitted and luckily, I can, the judge — it’s my first offense and the judge says, okay you’ve got your license back. What are we talking? Six weeks? Six months?

MR. BOWSER: Well that depends really on the form and venue. By way of example, I had a trial in Ayer on Tuesday and we were almost 12 months removed from the date of arrest. I’ve had trials in that court that have been close to two years. It really depends on the resources of the particular court. Some courts have one judge. Concord for instance has one judge, and they only run a trial session on two days a week. Ayer is the same thing. Woburn tends to be 12 months or more. Lowell and Lawrence, some of these busier courts, it can be well over a year. And then there are other courts, you know, if you really move it, you can get a trial date within usually four to six months is the earliest. So it’s a long process.

STUDIO: And lastly, because I don’t want to paint or give the perception, and I don’t want anyone to think I have the perception that police officers are just looking for innocent sober people to pull over and get —. The officer pulls me over, like I said, I sneeze or I make the mistake of looking down at my phone which I’m not going to admit to him. But I swerve, so he pulls me over. If I reason with the person. Unless I’m absolutely — Officer, I have not had a drink, I just got out of work and I’m just going home. I swear to you, I haven’t had a drink in five days. If the officers — do the officers kind of, do they see that I’m talking normally, I’m acting normally.

MR. BOWSER: They do.

STUDIO: They’re going to let me go, right?

MR. BOWSER: Yeah.

STUDIO: They’re not looking to pull over —

MR. BOWSER: They’re — no. No. Their job — I mean police officers — people look at me all the time and say, gee you must hate cops. I’m like no, quite the opposite, I have a lot of respect for them and what they do. Their job is to take anybody off the street who they believe is unsafe. And they’re operating on a probable cause standard. And the difference between probable cause to arrest and proof beyond a reasonable doubt is enormous. And I bring that to the attention of juries all the time. Their job is to take you off the street. If they feel that you’re unsafe, they should be making an arrest, taking you off the street. And then in court later, if it doesn’t amount to proof beyond a reasonable doubt, so be it, there’s an acquittal, there’s a not-guilty, the system has worked the way it’s designed to work.

And many officers, like you said, if you’re engaging them in a conversation and they don’t think that you’re impaired, there’s plenty of police officers out there that do that each and every day. They make tons of motor vehicle stops, they interact with lots of people that have had something to drink, and they make a determination that they’re okay and they’re safe to drive and they let them go. Happens every day.

STUDIO: I haven’t paid the retainer yet, but as my attorney seeing what you’ve seen this morning, if I were to ever get pulled over, would you advise me to take a field sobriety test?

MR. BOWSER: My advice to anybody —

STUDIO: Even if I’m stone cold sober.

MR. BOWSER: My advice to anybody is because they are so subjective and they are so difficult to do perfectly, police, the only — field sobriety testing — field sobriety tests in general are routine rote familiar activities for one group of people and one group of people only. Police officers. Because they see them and they use them and they demonstrate them day in and day out.

To Joe public who’s never seen them, never been through it and you put him in that circumstance of side of the road, two in the morning, under the lights with the traffic in the background and the wife in the passenger seat, I would advise people don’t take them. They’re very difficult to pass, they’re very subjective, and I don’t truly believe that they relate to your ability to operate a motor vehicle safely. I can drive safely, I can’t do a one-legged stand myself. Period. I can’t do it.

STUDIO: And I know my mother and father would not be able to do that test.

MR. BOWSER: Exactly.

STUDIO: And — Attorney Bowser — folks, as we like to say, we pray that folks don’t need your services, but if they ever do need them, you have officers in Chelmsford and in New Hampshire. How can people get a hold of you?

MR. BOWSER: Office in Nashua, office in Chelmsford. Best way to get a hold of me is probably through the website which is www.bowserlaw.com.

STUDIO: And you can always hear Attorney Mike Bowser Thursday mornings with us as a member of our Expert Network, here on 980, WCAP. Thanks so much for the eye opening experience.

MR. BOWSER: Great day, Teddy, thank you.

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