In drunk driving and impaired driving cases, police in New Hampshire are
authorized to request that a suspect submit to breath, blood or urine
test following an arrest. The suspect may submit to the test or refuse
to do so, suffering potential administrative consequences either way.
In cases where a suspect submits to the requested test, s/he does not
have the choice regarding which of these tests to take. Rather, New Hampshire
law gives the officer the choice of administering a breath, blood or urine test.
For years, the New Hampshire State Police and local police departments
often opted for breath testing, relying on a device known as an Intoxilyzer
5000. New Hampshire made a large scale purchase of Intoxilyzer 5000 machines
in the early 1980’s, leading to generations of cases anchored by
traditional breath testing which targeted alcohol impairment. Of late,
however, there is a significant trend in New Hampshire DWI / DUI / OUI
cases away from traditional breath testing using the Intoxilyzer 5000
machine and toward blood testing.
In our experience, there are two reasons that explain this trend:
- Concerns for impairment caused by controlled drugs; and
- A defective and new law which changed the process of collecting breath
samples following an impaired driving arrest.
The drug concern is easy to understand. Today, impairment from a range
of serious drugs is as frequent, if not more frequent, than alcohol impairment
once was. Traditional breath testing using the Intoxilyzer 5000 machine
does not detect drug impairment, but blood testing does. Accordingly,
a recent law enforcement preference to administer blood testing reflects
a growing concern for impairment caused by controlled drugs in New Hampshire.
Separately, there was a recent change in NH law regarding the way in which
law enforcement administers the breath test, which has resulted in a serious
problem for the state.
Historically, New Hampshire law required law enforcement to collect a second
sample of the suspect’s breath any time they relied on the Intoxilyzer
5000 machine conduct a breath test. This second breath sample allowed
a person arrested for DWI / DUI / OUI in New Hampshire to literally send
a sample of their own breath to an independent lab for additional testing
in order to confirm or dispel the result initially secured by law enforcement.
This process helped to address concerns both for the accuracy of the Intoxilyzer
5000 machine and for operator manipulation of tests conducted with that
machine while addressing constitutional confrontation and due process concerns.
In November of 2016, however, the New Hampshire Department of Safety informed
the New Hampshire legislature that it was going to purchase a new generation
of breath testing machines, claiming that they will be more accurate and
eliminate the concern for operator manipulation. Relying on this information
supplied by the NH Department of Safety, the New Hampshire Legislature
then passed a new law doing away with the requirement to collect a second
While the new law eliminated the obligation for law enforcement to collect
a second breath sample, the new machines were NEVER PURCHASED. Accordingly,
the new law allows law enforcement to conduct a breath test without collecting
a second sample, but the State never purchased the new machines which
are said to address concerns for accuracy and operator manipulation. Those
asked to submit to breath testing do so using the old machine, but without
the ability to secure an independent lab analysis in order to confirm
the accuracy of the result or address concerns for operator manipulation.
Recognizing this concern and likely fearful of litigation on this topic,
it appears that law enforcement is currently trending away from using
the breath machines at all and, instead, is administering blood tests
at higher rates in drug and alcohol impairment cases.
If you have been charged with
drunk driving, the DWI / DUI / OUI defense lawyers at Shaheen & Gordon stand ready
to help! Call or
contact us online to speak with a member of our team.