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 breath sample.
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.