Ready For Trial

Holiday Season DUI Roadblocks – Expert Network, November 27, 2013

December 11, 2013

Category:

STUDIO: We’re very excited to welcome in a member of our Expert Network, Attorney Michael Bowser joining us in studio this morning. Good morning, Counselor, how are you?

MR. BOWSER: Good morning, Ted, I’m doing very well. Nice to be back.

STUDIO: Good to have you here. You are a very, very busy man?

MR. BOWSER: I am. I wish I could be here more. I just want to let you know, I’ve gotten a tremendous amount of positive feedback. As you know, I travel all over the place. I was in Belchertown of all places yesterday, and up to Portsmouth and down towards Brockton, everywhere in between. But I’ve had people walk up to me in the Lawrence District Court from Andover and say they’ve heard the show and people from Hudson, New Hampshire commenting to me that they’ve heard the show, so I’m getting a lot of great feedback from this little spot that we’re doing.

STUDIO: Well as we like to say, everybody gets it and we also like to say, we hope that people don’t need your services necessarily. But look, it’s a reality. And this is, you know, as we talk about coming up on the Thanksgiving weekend and the holidays, you know, it’s a time where law enforcement steps up its patrols, so it’s extra important for people to be really cautious out there. And you know, if there’s any question about whether you’ve had a drink too many or don’t. If you have any question in your mind, don’t get behind the wheel of a car.

MR. BOWSER: Well as my brother Kenny says, you know, the Wednesday before Thanksgiving is amateur night, meaning everybody in the world is going to be out on the road visiting, socializing and I just remember locally in Chelmsford, it’s the night that everybody comes home from school, everybody seems to be out at the local establishments. And law enforcement is absolutely on their toes. They’re aware of the fact that there’s going to be a lot of people out drinking. And they do, they step up their patrols. Around the holidays you’ll see actually special grants that are given by the federal government and that allows local and state police to put extra patrols on the roadway. You see them at Thanksgiving. You absolutely see them around Christmas and New Year’s as well. I wouldn’t be surprised if there is a roadblock established either locally in Lowell. I’ve seen them in Tewksbury. We’ve seen them in Billerica. So just be aware. You have to be careful because there’s a lot of law enforcement on the road and there’s a lot of people on the road.

STUDIO: And all of it is — the goal is a good one. It is public safety. We don’t want to wake up on Thanksgiving morning or the Friday and read about a family that, you know, lost its life tragically. We’ve talked about this in the past, but just a maybe a good little refresher here on roadblocks because they are going to be out there this weekend. We already know that in Middlesex County, they’re going to be set up in locations. That word has come out from the state police and the local police.So what is the proper procedure you have to follow as a driver if you come upon a roadblock and you are, you know, and the officer approaches your window?

MR. BOWSER: Roadblocks are set up. They are almost always set up and maintained by the Massachusetts State Police and then there’ll be a local complement. So if they’re — I have one right now in Hingham where the state police are setting upon 3, Route 3 in Hingham. They’ve got a complement of local Hingham Police Officers complementing their deployment. And they put two what they call screeners in each row. So on Thorndike Street here in Lowell, outside of the Gallagher Terminal and the Comfort Furniture. They will put two screeners outbound, two screeners north inbound. What those screeners do is they stop, they’re suppose to stop a set pattern. Either every vehicle or every other vehicle or every third vehicle. And then if traffic backs up to a certain point where there’s a safety vehicle or there’s a 10,000 pound or more truck or a flammable liquid or an emergency vehicle, everybody gets waved through.

The way that they do it is they stop every single vehicle. And what they’re going to do is they put up their hand and you approach slowly. They ask you to roll down your window and they will say something to the effect of, good evening, this is a Massachusetts State Police sobriety checkpoint. Have a good night. And in that brief, very brief exchange, if they notice anything indicative of drinking. Whether it’s an odor of alcohol, your speech when you say hello, goodnight, good evening is a little bit off. If your eyes appear to be red or glassy. Any of those, you know, typical indicators, even one of them, even the mere odor of alcohol. They’re going to follow up with have you been drinking, where are you coming from.

They’re then going to direct you into the pit. And the pit here in Lowell is set up in that parking lot of the Comfort Furniture and there you’ll meet with another officer. He’ll remove you from the vehicle and you’ll be involved in field sobriety testing.

STUDIO: Are they allowed to ask those questions beforehand? Because I’ve gone through the one on Thorndike Street and I have been asked where — you know, good evening, you know, how are you, where are you coming from. And I said, I just literally got out of work and I’m going home.

MR. BOWSER: Yeah. And I’ve litigated that with judges in various district courts across the commonwealth. They’re suppose to adhere strictly to a written operational plan. The written operational plan says that they may ask other additional questions only if they develop reasonable, articulable suspicion of impairment. And that is a legal term. It basically means they need to see the facts that lead them to believe that you’ve been drinking, and then they are allowed according to the plan to ask a couple additional questions.

But they can’t just come out of the gate firing questions at every driver, where are you coming from, have you been drinking, where are you going. They’re only suppose to slow you down, excuse me, and interrupt you with those questions if there’s a reasonable suspicion that you are in fact impaired.

STUDIO: What — what if they do have a suspicion that you’re impaired. What happens then? What are your rights there as a —?

MR. BOWSER: Well at that point, you are seized. They’re going to give you a directive to move off of the main roadway, which in this case is Thorndike Street. They’re going to move you into that parking lot where one of several other police officers or troopers will direct you to a particular spot. There they’re going to ask for license and registration. They’re going to ask you to exit, excuse me, for purposes of field sobriety testing. And as we’ve discussed before, you have every right in the world to refuse to take field sobriety testing. They don’t have to tell you that. And most people are unaware of it and most people will fall into the pattern of just getting out and taking those tests, which as you know are designed to fail. They’re not easy to pass. They’re difficult under the best of circumstances.

STUDIO: I failed one right here that you gave me on the air.

MR. BOWSER: Right.

STUDIO: Stone cold sober. I hadn’t had a drink in six days.

MR. BOWSER: So you have a right to refuse but they don’t have to tell you. They’re going to ask you to take a preliminary portable hand held breath test. You have a right to refuse that. They don’t have to tell you that. And then ultimately if they place you in custody, they’ll ask you to take a breath test right there on the scene because they have what’s called a mobile breath testing trailer, the batmobile, b-a-t, and that trailer is equipped with a couple of breath test devices. They’ll ask you to take a test there and again, you have a right to refuse. There are some serious consequences to that refusal administratively, but that’s a choice that you’re going to have to make.

STUDIO: As we say, we certainly hope nobody will need your services because everybody will obey the laws and will not jeopardize their own lives or their families or anybody else’s, but things happen. And as we know, we have to be realists. What’s the typical process. Let’s say I get in — I do something stupid this weekend and I am in need of your services. I call you, I reach out through the web, and we will give all that information. But what’s the next step?

MR. BOWSER: Usually I’m contacted by telephone. Most often I’m contacted through my website.

STUDIO: Should I call you on that night? Should I call you from the police station as I’m pulled in? Should I not even wait until the morning after?

MR. BOWSER: Well most people are calling me within 24 hours of the arrest. In Massachusetts, if you get arrested on a night preceding a weeknight, most often you’re going to be before the Court for your arraignment the very next day. And what people don’t understand is in most, you know, typical OUI circumstances, you don’t necessarily need a lawyer for your arraignment, because the only thing a judge in a district court, whether it be Judge Brennan here in the Lowell District Court or Judge Rooney in Lawrence, they’re going to call your case and they’re going to tell you, Mr. Panos, we’re entering a not guilty plea on your behalf.

STUDIO: Okay.

MR. BOWSER: If you’re going to hire a lawyer, you need to be back here on the pretrial date of such and such, or they’ll appoint you a lawyer. So for purposes of the arraignment, the next day in the court, the only thing they’re going to do in Massachusetts is enter a not guilty plea and put it over to the next event, which gives you plenty of time to meet with,retain a qualified lawyer. In New Hampshire, the arraignment date is usually two to three weeks down the road. So you have plenty of time before your next appearance in court.

But people call me and what I’ve found which is amazing is, if you don’t get back to people within hours, they’ll move right on. I mean the internet is an amazing thing. It’s not the yellow pages anymore. You can google DUI defense lawyer and you’re going to get 70 hits for various websites for various attorneys throughout Massachusetts.

STUDIO: But you’ll only get a handful of certified ones which you are in both Massachusetts and New Hampshire.

MR. BOWSER: Right.

STUDIO: And that’s — we’ve discussed that in the past. It’s very important.

MR. BOWSER: Yeah. I’m one of three board certified and I like to call them my friendly competitors. Stephen Jones of Norwell, Jay Milligan also of Norwell. Two very highly qualified lawyers. And you’ll bump into them on the web as well. And we certainly talk to the same people over and over again because of the frequency of inquiries that people make on the internet.

STUDIO: So what’s the process like? You and I hit it off, so if I ever were in need of services, I would certainly be calling you and I know we would, we would, you know, have an easy time. But some folks get afraid.

MR. BOWSER: Yeah.

STUDIO: They get intimidated by attorneys. How scary is the process? How does the process begin once they come into your office? I assume you want to do a face to face meeting to get the ball rolling, correct?

MR. BOWSER: Absolutely. And I’ve actually been told that some people — I have a lot of YouTube videos that are up on the web and people seem to — I guess I put them at ease on the videos. Maybe it’s the way I come across on the videos, but most people come in, they’re very apprehensive, they’re scared, they don’t understand what is going on. So my practice on a DUI or any other criminal defense matter is I put people on the schedule, I get them into my office, and I spend an hour. I tell people, listen, we’re going to spend an hour together. We’re going to go over everything. So that when you leave that meeting, you know exactly what your decision points are going to be and what’s going to happen potentially in this case. And it’s a free consultation. I give them a written fee agreement.

STUDIO: I was about to ask you.

MR. BOWSER: Yes.

STUDIO: Does the clock start running in that hour or no?

MR. BOWSER: And I tell people — no. Typically that appointment takes an hour, but I let people know up front, it’s a free consultation. Otherwise I think people would be even more apprehensive to come in. So I give everyone just as a general rule and a general practice, an hour of my time as a free consultation. And I don’t mind doing it. Most of the folks I meet with hire me. So it’s a very good investment of time for me and for the client.

STUDIO: Can you tell on that first hour, whether you have a good case or whether you’re going to convince your client that they’re in trouble, they need to —

MR. BOWSER: Well my job as we’ve discussed, is I’m in the protection business. And how I’m going to end up protecting that particular person’s rights changes from case to case. So I have to inform them. And based on my experience, tell them what I think is going to happen and what may occur if they go to trial versus if they resolve it by way of a plea. And I’m very clear with people. I don’t make those decisions for you. I’ll tell you what I think, and I work for you, and you tell me what you want to do based on my advise.

STUDIO: We’ve actually have a question about what happens

25 in the worst case scenario, but let me open up the phones, we have a question from one of our loyal listeners. Dean from Chelmsford. You have a question for Counselor Bowser? Good morning, Dino.

CALLER: Yes, Counselor Bowser, good morning.

MR. BOWSER: Good morning.

CALLER: I have this question. Ever since I was a young boy, they’ve always said that driving was a privilege. What Supreme Court decision made that a privilege rather than a right to drive? Or can that be overturned down the road?

MR. BOWSER: Well I can tell you that you’ll find most of what we consider our enviable rights contained in the U.S. Constitution, the Bill of Rights or even the Massachusetts Declaration of Rights. You will — you will not —

CALLER: I get that.

MR. BOWSER: You will not find in any of those documents the right to drive a motor vehicle or the right to have a driver’s license, and therefore —

CALLER: Right.

MR. BOWSER: So I can’t point to a particular decision, but there are a number of decisions that point to the fact, and always make a point of telling us that, your right to drive is in fact a privilege. So you’re entitled to some due process before the Government takes away your driver’s license.

CALLER: Right.

MR. BOWSER: But not the same level of due process you would as it applies to your right to remain silent or your right to privacy, your right to elect your government. It is a privilege, it’s not set forth in any of the documents that we would typically think of when we think of our rights. It’s not in the Declaration of —

CALLER: So.

MR. BOWSER: It’s not in the U.S. Constitution —

CALLER: Right.

MR. BOWSER: — Bill of Rights or the Massachusetts Declaration of Rights.

CALLER: So in other words, we could put an amendment to the Massachusetts Constitution saying it’s a right until proven otherwise?

MR. BOWSER: You would have to have an amendment such as that.

CALLER: Exactly. Okay.

MR. BOWSER: Yeah.

STUDIO: Thanks for the question, Dean.

CALLER: Alright, thank you very much.

STUDIO: Here’s a question I have for you, and I didn’t realize this until you came in this morning, but. Again, assuming I do something stupid this weekend and despite your best efforts and all your skills and expertise, I lose because I, I did something stupid. I lose my license automatically. What happens if that’s going to cost me my job, my mortgage and whatnot. Am I done?

MR. BOWSER: Well this is, again, and you bring up two points. One, if you ever meet a lawyer who says he’s never lost a case, turn around and run. And I tell people during that initial consultation, they always ask me, what is your success rate and how do you do. I say I do very well, but I am the last person, I would never tell anyone I win every case. If you meet a lawyer that says they’ve never lost, then they’re really not trying cases. I try a lot of very difficult cases, I don’t always win. If there’s a finding or if you enter a plea in Massachusetts, you’re going to lose your license. On a typical first offense, Mass resident in a Massachusetts courtroom, if you take a guilty finding or a continuance without a finding, you’ll lose our license and you probably have already lost it because of a test over or a refusal, but you are then qualified, if you are on probation and enrolled in the alcohol education program, to apply for a hardship license. Massachusetts has some pretty decent liberal rules for a hardship license which is the 12 hour Cinderella work license on a first offense. What people don’t understand though, is you can’t get a Cinderella license or a hardship license unless you’ve been sentenced on the OUI.

STUDIO: That’s what I was curious about, because the license is automatically pulled. So you’re in tough shape until you actually get that court case, correct?

MR. BOWSER: Right. So you’re either — if you’ve hired me or someone like me, you’re either going to resolve it by way of a plea or you’re going to fight it all the way to a verdict. If you’re fighting it all the way to a verdict, that process in most district courts takes several months to over a year. And if you’ve lost your license at the time of arrest because you refused a breath test, you lost it for 180 days, you’re not driving for that 180 days because you’re not in the program, you haven’t been sentenced by the court and you’re not on probation, so you can’t get a hardship. So that confuses a lot of people. They think that when they get arrested, they’re suspended but they can get a hardship. You can’t get a hardship unless you’ve been sentenced on the OUI offense.

STUDIO: What if I take the breath test and the field sobriety test and then flunk it. Can I then get that appeals license?

MR. BOWSER: Well then your license loss is 30 days, because you took the test. So most people can get through the 30 days, get reinstated and then they’re driving from the 31st day until whenever we get to trial sometimes several months to 25 a year later.

STUDIO: How has that passed constitutional muster that, again, we live in a country where we are innocent until proven guilty. So by failing to take a test, you lose a privilege for six months. If you take the test and fail it, you only lose it for 30 days?

MR. BOWSER: Because as Dean from Chelmsford pointed out, your driver’s license is a privilege. It’s not a right. So they can take away that privilege without the due process of a trial. There is no presumption of innocence administratively with the registry of motor vehicles.

STUDIO: Crazy. Crazy. Now lest people think that the only cases you handle are driving under the influence cases. You do handle a variety of other cases. I’ve seen your name banded about in the newspaper on a very public case as a matter of fact.

MR. BOWSER: We’ve done, I’ve done, over the years I’ve always done all types of criminal defense. My practice has essentially grown into a DUI defense practice, that’s about 90 percent of my criminal work. But I’m still involved day to day in all kinds of drug defense, domestic violence, larceny, theft, all of the things that you would think of typically you could get arrested for you might be reading about in the newspaper. And those things, the rules that apply to drunk driving defense are the same rules that apply to all of those other types of criminal cases.

1 In the drug defense world, it’s, you know, how did you, the police and the contraband come to be in the same place at the same time. And it usually boils down to an issue of search and seizure. And those same rules of search and seizure and your right to privacy, they apply in drug defense cases. They also apply in roadblocks and drunk driving cases.

STUDIO: So whether it’s drugs or alcohol, it doesn’t matter legally in terms of the impairment?

MR. BOWSER: No. Well there’s different standards, but —

STUDIO: For instance can a breath — let’s say I have snorted cocaine or smoked enough marijuana to impair myself. Will that show up in a breathalyzer?

MR. BOWSER: You’ll be charged with DUI or driving under the influence, OUI drugs in Massachusetts, but there is no per se amount. So there’s not a — a .08 blood alcohol is the legal limit for purposes of alcohol. There is no per se for heroin, cocaine, THC —

STUDIO: But can they prove that use through a breathalyzer?

MR. BOWSER: If it is — no, they can’t. They can prove it through — they can prove the presence of the drug, the metabolites from those drugs. They can have a toxicologist come in and testify as to what particular levels of a drug may be impairing.

The interesting thing today is you see so many people driving that are prescribed all kinds of medications, and those prescribed medications taken as directed by their doctor can impair. And I’ve had, I just recently had a — for the, you know, I’ve had several OUI drugs. And the drugs were prescribed. That’s a difficult case for the government to prove because they have to prove that you knew of the impairing effects of those prescribed drugs, took them anyway with full knowledge of the effects, and then became impaired and drove. That’s a very difficult case for the government to prove, as opposed to you’re on PCP or heroin or cocaine.

STUDIO: Well there are certain drugs where the prescription, they’ll tell you do not operate a motor vehicle or machinery, correct? Like if you’re, if you’re, let’s say if you’ve had surgery and they’ve given you the Oxy or whatever pain killers. But there are certain over the counter things that can impair. Listen, I’ve battled allergies my whole life and there are certain allergy medications over the counters, actually maybe they’re not over the counter anymore, you have to show a license. But they’ll make you drowsy? You know, Sudafed use to make me drowsy when I was taking it for my allergies. How does the law treat those?

MR. BOWSER: If that Sudafed is taken to the point where it renders you or reduces, diminishes your ability to drive safely, then under the law, you’re impaired or intoxicated as we say in Massachusetts; however, under the influence of that particular Sudafed, they would need to prove that you knew about the effects of that drug before you took it. And that’s where the difficulty is for the government in proving the OUI prescribed drug cases versus the elicit drug cases.

STUDIO: He is Attorney Michael Bowser. Offices in Chelmsford and in Nashua. He is a member of our expert network and he joins us periodically on Merrimack Valley Radio in the Morning. If folks need your services, again let’s hope you don’t get any new clients this weekend. I don’t want to do you financial harm, but I’m certainly hoping that we have a safe weekend and nobody is in need of your services.

MR. BOWSER: No, I as well. I hope everyone, you know, does take it easy and pick a designated driver, drive safely. There’s going to be a lot of people out on the roadway this weekend. If anyone does need my services, they can certainly contact my office in Chelmsford or Nashua. Through the website www.bowserlaw.com.

STUDIO: And you do do an awful lot of other services besides motor vehicle and operating —

MR. BOWSER: Personal injury practice as well as other drug defense and other criminal defense work.

STUDIO: And you’ll be honest enough to admit you don’t win every case as well.

MR. BOWSER: No. No. I’ve tried hundreds.

STUDIO: An honest attorney. Who’d have thought they exist.

MR. BOWSER: Yeah, I’ve tried hundreds and I have not won them all. No.

STUDIO: Counselor, happy Thanksgiving to you and your family.

MR. BOWSER: Thank you, Teddy.

25 years of Proven Personal Injury Results.

(888) 526-9737