Legislature Eliminates Captured Sample Requirement

The Governor has signed Senate Bill 379, which eliminates the long-standing requirement that Intoxilyzer breath testing machines in police departments capture a preserved sample of the subject's breath. For decades, our clients have sent these captured samples to an independent laboratory, CG Labs, for analysis of alcohol concentration by a far more sophisticated and reliable machine, the gas chromatograph.

Gas Chromatograph Testing versus Infrared Absorption Technology

A gas chromatograph is able to pinpoint the specific ethanol (alcohol) molecule and precisely measure its concentration in a sample, whether it be a sample of blood or a person's breath, captured in a silica gel-filled tube. Because gas chromatographs are used for basic scientific research throughout the globe, their testing methodologies are open to peer review and universally accepted in the scientific community.

The intoxilyzer machines at police departments, by contrast, use either infrared or fuel cell technologies that are primitive by comparison. They rely on proprietary and secret software programs - the "source code" - that are closely guarded by the device manufacturers. They are not used in other fields of scientific research because they are not capable of isolating a specific molecule, and make only a rough measurement of alcohol concentration by means that are known only to the manufacturers.

However, these limitations have less potential to cause injustice in NH than in other States, because of our captured sample requirement.

NH Courts Require Captured Samples

In a series of court decisions, including as recent as 2010, Opinion on the Justices (Eliminating Requirement for Additional Breath
Test Samples), 160 N.H. 180, the New Hampshire Supreme Court has held that the due process clause of the State Constitution requires that police departments use a breath-testing machine capable of capturing and preserving a second breath sample that can be given to the defendant for later analysis by an independent laboratory. Now, in spite of these court decisions, the legislature has attempted to do away with the captured sample requirement.

More to Come

The new law is effective January 1, 2017. Litigation over its constitutionality is all but guaranteed. And other questions remain. Will police departments really, as the legislature has seemed to promise in the bill text, buy new, more sophisticated and more reliable breath testing machines? Or will they just use the junk technologies of the past, while jettisoning the one safeguard that could exonerate the falsely accused driver?

Stay tuned.

-- Ted Lothstein

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