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OUI Roadblocks & Driver’s Rights – Expert Network Interview December 31, 2014

January 15, 2015

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Learn about OUI roadblocks and what a driver’s rights are during a traffic stop by a police officer. Board Certified DUI and OUI attorney for Massachusetts and New Hampshire offers information about how to avoid charges and what to do if you’re arrested.

Teddy: Member of our expert network whose joining us in the studio right early this morning. Attorney, local attorney, Michael Bowser. Good morning counselor. How are you, sir?

Mike: Good morning, Ted. Doing well. How are you?

Teddy: I’m doing very, very well. A belated Merry Christmas and early happy new year to you.

Mike: Same to you. Thank you.

Teddy: Busy time of year for you?

Mike: Yes. Actually, yes.

Drinking and Driving Around Holidays

Teddy: We certainly encourage people not to. I don’t want to put you out of business but I’m telling people, don’t require Attorney Bowser’s services by doing something stupid tonight. My hunch is your phone is going to ring once or twice late tonight or early tomorrow morning.

Mike: I certainly have a few calls over the weekend.

Teddy: Really?

Mike: Yes.

Teddy: The holidays are a bad time for folks not paying attention to the fact that they shouldn’t drink and drive.

Mike: They are. They had a roadblock in Lowell last weekend so I’ve picked up already few of those cases from that roadblock.

Teddy: Listen. Anybody who is driving in our city or coming to our City of Lowell. Holidays especially, there are going to be roadblocks. You have to know that by now. If you have any clue, you know that they will be going to put roadblocks out of this time of the year. Don’t you?

Mike: They do. They’ve put the roadblock up on Gorum Street by the Thorndike Factory. It is there at least three to four times a year and it’s almost always around the holidays, whether it would be Halloween, Thanksgiving, Christmas, Memorial Day, Fourth of July. It’s a fairly routine practice for them to set up at that particular location. As I said, at least three or four times a year.

Teddy: Now, the folks who do get caught on these days aside. New Year’s Eve certainly, since the attention. I remember the Mothers Against Drunk Driving and Students Against Drunk Driving and the focus beginning in the late ’70s, early ’80s. New Year’s Eve is not the crazy night on the roadways that it used to be. Is that a fair assessment?

Mike: I think people are extremely cognizant or aware of the dangers of drunk driving, so I think it has. I was just looking at statistics from a roadblock in New Hampshire where they gave the yearly statistics of arrest. Year to year in New Hampshire, they’ve dropped and they consistently dropping, and that’s the trend. I think that’s based on the education and the approach that people take now.

Teddy: That is the goal behind it. That is the end result they are hoping for. They don’t necessarily want to arrest people for drunk driving. They want you to know that they’re out there and they want to keep you from drunk driving and it appears, at least by the evidence, that it’s working.

Drunk Driving Roadblocks

Mike: One of the biggest pushes behind roadblocks is enforcement [and that] is certainly part of it, but deterrence. They absolutely want to publicize the fact that there’s going to be a roadblock. They want to have a high visibility roadblock. They want as many people as possibly aware of the fact that it’s there. Although, I don’t think they always do a great job of promoting the fact that it’s going to be there. But that is one of the factors, is the deterring effect. They want a high visibility presence enforcing drunk driving laws.

Teddy: How cut-and-dried are those cases? You’ve represented folks who had been stopped at roadblocks and then charged. Is it a cut-and-dried case?

Mike: Never. It’s like any other OUI case or DWI case. They’ve very facts specific. I had one this week up in New Hampshire. It was a roadblock case arising out of bike week. I know several people were arrested at the roadblock. My office, my firm, we were the only ones that actually challenge the validity of the roadblock as conducted and we ended up getting a very good result because of the arguments that we made regarding the roadblock.

Teddy: What are the rules? What makes a roadblock valid or potentially invalid in the eyes of the law?

Mike: Well, we were ready to challenge the statistical validity of the particular roadblock and the location that they’ve chose because they’re supposed to choose a location where there’s been high incidences of DWI arrests. In this particular location, they have not. They predetermined sites selection and you would hope that they would use a good site, because they know they are going to be stopping people at a particular spot in doing field sobriety testing and this location was quite the opposite. It was a dirt parking lot, not well lit and actually that’s one of my issues with the Thorndike Street location. The parking lot is a mess and oftentimes, that’s exactly where they have people doing field sobriety tests across the cracked and potholed lot. I don’t think it’s a great spot for field sobriety testing.

Teddy: That Thorndike Street site is generally where they do one if they going to do one in Lowell?

Mike: Always. I’ve seen them in Billerica. I’ve seen them in Tewksbury but predominantly they going to be deployed at Thorndike Street in Lowell.

Teddy: Is it generally on a very well traveled road?

Mike: Always.

Teddy: You never see them on highways. The actual Route 3495 . . ..

Mike: No. It’s Route 114, Route 38, Thorndike Street, Route 110.

Teddy: The road’s steep off the highways.

Mike: It’s usually a main thoroughfair leading to and from either a busy downtown area towards a highway. It’s always a site where they have traffic coming in both directions that they can track to a roadblock.

Field Sobriety Testing

Teddy: I always go back. It was this year. This last year, you actually gave me the field sobriety test on the air. The last time I had a beer was like on a Saturday night. Counsel Bowser was in here on a Thursday. I took the field sobriety test with nothing but coffee in me. As I said, the last beer I had was five days before, I’ve flunked it.

Leslie: What? The walk and turn?

Teddy: Right here. I did the walk and turn. I didn’t follow the directions. I didn’t turn well either.

Mike: It’s not easy.

Leslie: You know how many of those I’ve given? Oh, my God. I worked the highways for ten years on the safe place. And there’s never a flat-level, ungraveled surface on a highway. You’ll kazam in a breakdown lane.

Mike: And that’s right, exactly the arguments some of them make. You’re going to do this field sobriety test in the breakdown lane of Route Three or 93 at one in the morning.

Leslie: That is correct. A woman with high heels on.

Mike: With tractor-trailer, with highway traffic and it’s never a perfect situation.

Teddy: Well, if a woman is wearing heels, you make them still wear them?

Mike: Two inches or more.

Leslie: Take them off.

Teddy: Do they know that they can take them off?

Leslie: I’d tell [them to] take them off.

Mike: Right. Because of the statistics and the studies and the research behind field sobriety testing will say that they are not necessarily valid for people that are 50 pounds or more overweight, people that are elderly, people wearing heels, [or] people with injuries to their legs, back.

Leslie: But this is the problem. I can allow you to continue in other foot if I suspect you for being operating under the influence. I’m only given a certain little area to perform these mandated test that I have to perform prior to coming to my conclusion whether you’re intoxicated or not. So now, I have to deal with what I am given in the parameter of the law and if that means a breakdown lane on 93. I worked out at the end-over barracks.

Mike: My favorite barracks.

Leslie: You’re wearing heels, they’re coming off. But he has an argument, “Well, I stepped on a rock and my feet hurt and there was glass.” But what’s my choice? I don’t have a choice.

BAC Testing

Teddy: Are those field sobriety tests? If the officer determines it’s a positive result for an under the influence driver. Are they then followed by a breathalyzer or a blood alcohol [test] – some kind of a blood test?

Mike: They are followed by a request for a breath or blood test.

Teddy: On site?

Mike: No. Sometimes now they use PBT — a portable preliminary breath test — which is not admissible en masse. But in Massachusetts,  where one of the very few jurisdictions in the country where if the request is made for either field test or blood or breath and there’s a refusal. The refusal is inadmissible in a courtroom so the trooper who made that request is not allowed to testify before judge or jury that “I asked Mr. Panos to take a breath test but he refused.” That doesn’t come in Massachusetts.

Teddy: But it does in New Hampshire?

Mike: It did does in almost every state in the country. We’re one of only three jurisdictions in the country that has that rule.

Driver Rights

Teddy: Now, we’ve talked enough a lot about this over the last couple of years where you’ve been on as a member of our expert network and I somewhat know the rights of the driver in these situations. But there are still some that I’m a little bit fussy and you’ve actually decided to hold a seminar coming up in the New Year, right?

:Mike: I’ll be doing the seminar on January 8th at 7:00.

Leslie: My birthday.

Mike: Happy birthday.

Teddy: He picked the date strategically.

Mike: That will be at Mount Pleasant Upstairs at the Mount Pleasant Golf Club.

Leslie: And I’m a guest speaker.

Mike: Yes, and it’s knowing the rights of the driver. I’m hoping to put in into an hour. A presentation of all the things that we have discussed. The number question I get from people is what do I do if I get pulled over. That’s an easy question for a lawyer to answer. What is not easy is to explain to people the consequences of all of those decisions that they’re going to make because it’s very easy to tell people, “Yes. Refuse the field test. Don’t take a breath or blood test.” But if you don’t know the consequences of that decision, then I’m not doing my job because there are suspensions that come into play and based on license back from lifetime suspension. A lifetime suspension.

Teddy: He got a not guilty but he’s got a license suspension?

Mike: Lifetime because he has three prior OUIs over the course of his lifetime.

Leslie: Can he get a seven of seven?

Mike: He can get anything unless the judge reinstates it.

Teddy: Was his license suspended before the fourth one?

Mike: No. He had a valid license. No. He hasn’t had a conviction in 18 years.

Teddy: So then how can they hold his license?

Mike: This is what I’m saying. The consequences of these decisions, “Don’t take a breath test.” In Massachusetts, in every state, there’s an implied consent law. At the time of your arrest, when you make that decision, “Am I going to take the test or not?” If you fail it and blow over, you’ll lose your license through the registry for 30 days in Massachusetts. But if you refuse that test depending on what your prior record is, the suspension that’s put into effect immediately is up to life depending on your prior record, so I got him a “Not guilty.” He still doesn’t have a license for his lifetime unless I get the court to give it back to him.

Teddy: And to me that sounds grossly unfair, at the risk of alienating my former state trooper friend here.

Leslie: No. I think very fairly.

Teddy: If a court finds you not guilty, to me it’s cut-and-dried. You get your license back whether you took the test or not.

Mike: It’s up to the court, you’re entitled to an immediate hearing before the judge to determine whether your license will be returned, it’s what’s called a rebuttable presumption, it’s presumed that the license shall be returned unless the government can ensure that you are a public safety risk. And I’ve certainly had not guilty verdicts on third offenses, in fourth offenses and what probably were fifth or sixth offenses in the eyes of the court.

Leslie: Shame on you.

Mike: They don’t want to give the license back if the government can give them a reason, and most often it’s the driver’s history. The person has a very long, painful driver’s history including OUIs and sometimes the government is able to rebut that presumption that public safety will be served, by giving them their license back.

Leslie: But again too, like I was telling you, it becomes a judiciary issue at this point. The police have done their job, you’ve been locked up after I’ve done whatever I’ve got to do, I have a list the things and I need to do and follow, because I kind of presume until the very end. Once I have made that determination, I give you the option to take a breathalyzer. If you’ve been involved in an accident and you are incapacitated, that now becomes a hospital issue where I will take blood from you. But there are [rules there too]. I kind of have an inter-coagulated tube [and] there has to be a nurse, not a phlebotomist.

There are a lot of rules that we have to follow to get blood from you. If you cannot consent the blood, then we subpoena the blood. So what happens is, it’s a whole litany of things that do happen, but once the license is surrendered, it’s not my obligation to tell you whether you should take it or not or what the ramifications are. I however would tell you, because if I see a baby seat in the back, you know we have an issue here. He might be the only driver, you could be the only one that of a thing. But it’s up to the court to quicken up this pace, this gentleman, like he said, he’s gotten off for the fourth, he hasn’t had one in 18 years, that’s the court — give him his license back.

Teddy: So the seminar is January 8th. Do you want people to pre-register can they just show up?

Mike: No, it’s open, and I’m actually charging a $5 cover for some appetizers and will donate that money to charity, but I’m hoping to have a full room. I hope to get a lot of young people. I’d love because it’s Christmas break still for a lot of college kids. I’d love to have some parents bring up some young kids, because the rules that apply to those under 21 are even more stringent than for an adult and so there’s a lot that kids need to know.

Leslie: They could also get kicked out of school for it too. UMass Amherst as an example, if you’re caught [on an] OUI and you are a student and you are caught around their campus, you can also be suspended or expelled, so it’s a great seminar for college kids and parents actually to go to.

Teddy: What time does it begin?

Mike: 7:00.

Teddy: 7:00, January 8th, Mount Pleasant Golf Club in Lowell.

Mike: Upstairs.

Teddy: Upstairs, and again we always tell people whenever you join us in the mornings, we don’t want you to call Attorney Bowser at night, and the best way to do that is, don’t do anything stupid. If you’ve had anything to drink, if you even question whether you should be behind the wheel of a car, you already know your answer if you have to question yourself. Don’t do anything stupid. Invariably, counselor, we know some folks are going to do something stupid, and if they need that help so that they don’t end up in a situation where they’ve lost their license and a chance to make a living for a lifetime perhaps, what is the number should we need your services.

Mike: The phone number at my office is 978- 256-2700 and the website is https://www.bowserlaw.com/

Teddy: And if you leave something on the website it automatically goes to you.

Mike: I get updates by text and email if you hit my website over the weekend or at night-

Leslie: I might be calling myself.

Mike: I get some immediate notice.

Teddy: You do work New Year’s Eve and you do work New Year’s day, you won’t ignore calls because you are watching that college football playoff system for me right?

Mike: Yes. People are looking for answers and help. I pride myself on getting back to them on nights and weekends just to put them at ease as to what’s going to happen the next day usually, which is going to be their arraignment.

Leslie: That’s important.

Teddy: Attorney Mike Bowser, joining us as a member of our expert network, counselor, Happy New Year to you I hope you have a quiet day tomorrow with the folks.

Mike: Thank you, Happy New Year to you too as well.

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