Ready For Trial

Expert Network Interview with Attorney Michael Bowser

July 15, 2013

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Studio: Right now joining us in the studio is a member of our Expert Network, board certified DUI specialist Attorney Mike Bowser. Good morning, Counselor, how are you today?

Michael Bowser: Good morning, Ted. Excuse me. How are you?

Studio: I’m doing very well. Good to have you here today. Lots to talk about on the legal front. Do you mind if we talk a little Aaron Hernandez and you know, this quote/unquote rush to judgment or did we take too long passing judgment on this guy?

Michael Bowser: Well I think that the investigation, people were very surprised at how slowly it moved all through last week. And then I was able to listen to just a little bit of the arraignment proceedings. I was going from court to meetings to meetings. But clearly there was a ton of information available. There was a lot of evidence, there was phones, video, I think they were putting together the case as best they could and taking their time doing it.

Studio: It seemed to me with my non-sophisticated legal mind that there was an awful lot of detail given at yesterday’s arraignment, and I’m curious, is that become Hernandez is such a public figure that they wanted to let people know, you know, we didn’t rush to judgment here. We made sure we had our ducks in a row. And we have enough evidence. Or is that kind of — do you see that normally, that amount of detail given in an arraignment?

Michael: What I found interesting about what came out yesterday is the amount of information they were able to gather regarding this case, especially the surveillance. And we saw this with the marathon bombing as well. There are cameras throughout the City of Boston and they were able to pick up this vehicle as he was allegedly going towards the home of the victim, away from the home of the victim, camera after camera after camera. The technology is out there now that they can take their time and meticulously build a case given the amount of information that’s available to them. But obviously it takes some time to put all that together.

Studio: And we also saw text messages, a huge part of the evidence trail. It was kind of laughable that Hernandez reportedly turned over his cellphone smashed to his attorney, who then gave it to investigators. That doesn’t necessarily mean your messages are lost and it certainly doesn’t mean that the messages you sent to somebody else’s phone disappear. You can smash your phone all you want, it’s not necessarily going to cover your tracks if you’ve done something.

Michael: And I think nowadays we refer to it as the cloud. So that stuff is out there and it is not necessarily tied to that device that you hold in your pocket, so.

Studio: Obviously it’s changed the way law enforcement operates, how it investigates cases. How about for attorneys? You know, I would imagine that there are probably a good number of seminars or workshops now for attorneys, kind of a, you know, getting you guys up to speed and up to date on what happens with texting. You know, I know you specify—specialize in operating under the influence cases, but you know, you know, texting while driving cases, you know, the world has changed and I’m sure it’s going to change the legal system along with it.

Michael: There have been for a number of years courses in what we call continuing legal education classes directed at what they call electronic discovery, social media discovery. I can tell you in my own practice, I have gotten to the point with my client base that part of my initial consultation with people is to let them know that whatever they do post on Facebook, whatever they say on Twitter; their texts; you know, when they say what you say can and will be used against you, that holds especially true for social media. And I have literally had cases blow up and fall apart because of something that was either discovered or seen or posted in a social media site the night before a plea or the night before a trial. So people have to be cognizant of—and I just heard yesterday there was hiring managers in this country, I think the statistic was 45% of hiring managers said that they did not hire otherwise qualified applicants because of their social media research into those applicants. So you have to be cognizant and aware of what you’re putting out there and how many people can see it. Especially in the context of a criminal prosecution.

Studio: How about in your specialty, driving under the influence cases. Let’s say you, you’re out in the bar and you’re having fun, a couple of hot ladies are coming up, they’re partying with you, they’re dancing with you and you and your friends decide, hey it’s cool, let’s post some pictures. You know, you’re holding the beer, you’re holding the drink with the umbrella, and somebody snaps a photo, so you have the time stamp on that, you know when it was posted to Facebook. Can those kinds of things be used as evidence in 12 a drunk driving case?

Michael: I am certain that that type of evidence can and will eventually come in one of my cases. But, can that type of stuff be brought into a courtroom and entered as evidence? Absolutely and it will happen.

Studio: Text messages that say just leaving the bar, immediately before getting pulled over or whatever. All those things are admissible as evidence, even if they—even if they don’t specifically refer to hey, had six drinks and now I’m going home or something to that effect.

Michael: Subject to the rules of evidence, yes, they absolutely could be admissible in a criminal prosecution.

Studio: So one of those cases is no different than a normal criminal case?

Michael: No. The rules of evidence in a drunk driving case are the same rules of evidence that apply in a rape or a murder or a burglary or you know, any other criminal case.

Studio: While I have you here, I just wanted to kind of get your thoughts on the Trayvon Martin case which, you know, I think eventually a lot of people will start to turn their attention to. How do you defend a case like that? How would you approach that defense of George Zimmerman?

Michael: Well he like any other person, including the allegations against Hernandez, all of these folks are entitled a defense. And if you’re going to operate in that field, you need to be prepared and qualified to zealously advocate for that person. So I have not followed that case—I mean I literally go from courtroom to courtroom and meeting to meeting. I listen to a lot of things on the radio. I don’t necessarily watch a whole lot of television. I’ve seen bits and pieces of that trial. It’s a difficult case and interesting you brought up the rules of evidence. There was a ruling by the judge in that Florida courtroom that the—each side had hired a voice recognition expert to determine who was the person heard screaming on the 911 call in the background. And both the defense and the prosecution allege that it’s either Mr. Zimmerman or it’s Mr. Martin, and the judge made a finding in advance of trial that neither one of the experts could meet the threshold under the evidentiary rules, to state an opinion as to whether it was one versus the other. So that opinion evidence was excluded. The 911 tape came in, but there’s going to be no opinion from an expert stating that it’s Mr. Martin or Mr. Zimmerman that you hear on the tape. They’re going to leave it to the jury to determine based on their own ears, who was that voice screaming in the background of that 911 tape.

Studio: Which highlights one of the issues with quote/unquote expert testimony in a case. You know, we saw this with OJ. There were probably dozens of witnesses on each side. They looked at the exact same evidence, exact same photos, heard the exact same sound, yet they came to totally different conclusions. How valuable is the testimony of an expert witness in a court of law?

Michael: Well it can be—it can be very powerful. But it has to be admissible, it has to relevant and related and the quality of the witness makes a huge difference. There are some witnesses, as you said you can hire an expert, and there are a lot of folks that put themselves out there as experts in a particular field.

I think some of them spend too much time in a courtroom as opposed to a laboratory or a teaching classroom. And there are others that are just wonderful. They can be terribly expensive. They’re not available to everybody. So you have to pick and choose your experts and your use of expert witnesses in a drunk driving case as well very carefully. It’s not always appropriate to bring in an expert and I’ve seen it in my own cases, if you decide to challenge the validity of the accuracy of a breath test, quite often the State will counter with someone from the state laboratory that will come in and say the opposite. The machine is infallible, it’s perfect, it does a great job. And then you have a battle of the experts. And I don’t think a battle of the experts is necessarily the best way to approach every case.

Studio: And now you’ve brought me where I wanted to go. The experts on — what I would imagine would be the most important technical evidence in a drunk driving case, and that is the breathalyser and the validity of that test. What do we know about the validity of a breathalyser? A blood—I would assume a blood, you know, a blood test is going to be 100 percent accurate unless there was tainting or whatever. You just shook your head no, so a blood test is not 100 percent accurate?

Michael: Well any testing sequence that is done, whether it is—when you say breath testing. Breath testing runs the gambit from, you know, a hand held roadside device called the PBT, a preliminary or portable breath test. It’s about the size of your wallet. You can buy one at Sharper Image. They’re not admissible. They’re used as a screening device in Massachusetts.

They are admissible in New Hampshire, but very rarely do those devices get into evidence. And then you go from—the New Hampshire technology is the Intoxilyzer 5000 EN or 68EN. That particular machine as been online, in use in the same form using the same technology over 20 years. Now imagine your cellphone for instance, and how that device has advanced and changed in the last 20 years. The breath testing technology in New Hampshire has not changed in over 20 years. Massachusetts put on line a new breath testing device in 2004/2005, the Draeger 7110 infrared fuel cell, supposedly the latest and greatest. By 2010 they were scrapping it, at the cost of millions of dollars and then replacing it with another device.

So the technology changes. It is not infallible, it is not perfect, it’s like any other piece of machinery. It breaks, it needs to be maintained, it needs to be calibrated, medical decisions, it’s not a forensic test meaning it’s not done to the same level of accuracy and reliability that you would see in a forensic laboratory. And then the forensic laboratory testing through a gas chromatograph is the gold standard. That is the highest standard of testing in terms of blood alcohol. And you don’t see it that often in these cases. You see all those other forms; the hospital test; the PBT; the Intoxilyzer 5000 or the Draeger. It’s in the minority of cases where you actually have forensic blood test that is drawn properly, stored properly, transferred to the lab properly, and then it comes into a courtroom.

Studio: So we’ve chatted in previous weeks about when you should submit to one of these tests, when to avoid it if at all possible. So even if you do take one of these tests and the results come back positive that you are under the influence, that’s not necessarily the case. You’re saying that there are — there are ways to show that those machines, those pieces of equipment can sometimes be wrong?

Michael: I try—I’m pretty certain that I try more breath test cases than any attorney that you’ll meet. And I certainly don’t win every test involving a breath test or a blood test. But I can tell you from years and years of experience I have. And I’ve brought into the courtroom issues regarding the reliability, the accuracy, the sequence in the administration of the tests and raised that reasonable doubt, so just the mere fact that you took a test is never a determining factor that you have to plead guilty.

Studio: Do you make the same argument in every case and some juries accept it, some don’t? Or just like the circumstances that those tests are administered, there are different factors at play?

Michael: Different factors in every single case. By way of example, that Draeger device now measures the amount of volume of breath in liters, that is submitted for each test, and it also takes the timing of the time that you blew into the machine. One of theories that I am convinced is accurate and I’ve seen scientific evidence to show that it is, the longer you blow, the higher you go. And I’ve had a breath test with a point one, I believe it was a point one nine, where the one young man blew into the device for 19 and a half seconds. Now if you pull out a stopwatch in front of a jury and you ask anyone of those jurors just to look at how long of a time 19 seconds is, I had a 72 year old man — excuse me — a 72 year old man that blew 20 seconds into a device. So the numbers sometimes will literally go off the chart and it leads to an argument that, you know, the longer you blow, the higher you go. Keep going, keep going, keep going, keep going is what the police say as you take a breath test, because they I think know that the bigger—

Studio: So that affects it.

Michael: It does.

Studio: Now see, I was under the mistaken impression that it was, you know, it’s 100% reliable, and then all of a sudden a few months ago, I was having a conversation with somebody who had been convicted of an OUI and had—one of the conditions of getting back his license was getting one of those tubes that you have to blow in or your car won’t start. And there are issues with if you don’t blow into the tube the proper way, even, you know, when he’s stone cold sober in the middle of the day and I know this, you can’t start that car if you improperly blow into the tube. All of a sudden it made me think, you know what? The testing devices are probably operating on some similar type of technology, where if you don’t do it properly or it’s not properly administered, you’re going to get a false reading.

Michael: That is called an I—well, IED is Ignition Interlock Device, the Ignition Interlock Device is put into place in Massachusetts for anyone receiving their license back after having two lifetime convictions.

In New Hampshire, it is required now for any aggravated DWI offense or any second offense, it is a fuel cell device tied directly to your ignition and they refer to it as the blow and go. You need to blow into this device to start your vehicle. There are rolling samples, so that as you drive your vehicle in traffic, you’re required to blow. And then those results are tracked in the cloud, electronically reported back to the Registry of Motor Vehicles and a violation of an interlock device is the same as operating after drunk driving. It can result in the loss of license, it can result in a new criminal charge. And I have not had a ton of experience with that particular device in my client base, but I have heard that, just like any other piece of machinery, think of anything else in your car that can break down mechanically, this interlock device is no different. There have been issues with it. People have submitted samples having had nothing to drink and tested positive, and they have to go through a hearing process at the Registry of Motor Vehicles and prove that it was the machine that was wrong, it was not me that was drinking when I started my car three weeks ago.

Studio: All the more reason to make sure if you are ever in a situation like this, and again, we hope that you never have to deal with this, but if you do, a good person to call, Attorney Mike Bowser. Counselor, folks want to find out more about your practice, if they’re ever in need of your services, how do they get in touch with you?

Michael: Best way to reach me at my office in Chelmsford and in Nashua is 978-256-2700. And the website which I think bowserlaw.com.

Studio: And you can catch Attorney Mike Bowser with us Thursday mornings, every couple of weeks here on 980 WCAP. He is a member of our Expert Network. Good to chat, Counselor, have a happy 4th.

Michael: Good morning. You too.

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