State Seeks to Cover Up Flaws in Breath Testing Program

New Hampshire statutes, regulations and caselaw require that breath testing machines capture and preserve a second sample of the accused's breath. The accused is given the captured sample and has the right, at her own expense, to have the sample tested by an independent laboratory. The independent laboratory, CG Labs, uses a gas chromatograph - a far more reliable instrument - to determine the alcohol concentration in the breath - and the presence or absence of any interferents that may have tainted the reliability of the Intoxilyzer's reported result. The Department of Safety, and prosecutors, want to do away with this important safeguard that tends to prevent the conviction of the innocent. Why?

According to a front page article in the Concord Monitor, entitled, ironically, "State Aims to Upgrade Breath Test," government bureaucrats at the Department of Safety are lobbying the legislature hard to eliminate the captured sample requirement. They say their motive is "good science" - the Intoxilyzer 5000 is an old machine, new machines made by other manufacturers cannot be configured to capture a breath sample for the accused, so legislators should repeal the laws mandating captured samples. State Forensic Laboratory Director Tim Pifer contends that the Intoxilyzer 5000 is not only old, but fundamentally unreliable, so upgrading is in everyone's interest, including the accused. What's wrong with that argument?

First, Pifer's only evidence that the Intoxilyzer 5000 is "unreliable," is that the captured samples show the machines to be wrong 5% of the time. As an aside, this will come as a rude surprise to the hundreds of defendants over the last two decades who have been convicted by judges and juries based on sworn testimony from other bureaucrats at the Department of Safety that the Intoxilyzer 5000 is highly reliable! More to the point, however, is the sheer chutzpah of this argument which basically goes as follows: 1) Captured samples show that the breath testing is prone to error, 2) How do we solve that embarrasing problem? 3) Eliminate the captured samples! Then, the error rate will magically fall to zero.

Second, the State does not actually propose to buy all new machines, because that would cost a fortune to the taxpayers. New machines from manufacturers like Germany's Draeger can cost upwards of $12,000 per machine, plus expensive training of maintenance personnel, etc. So, Pifer suggests in the Monitor article that we upgrade the machines one by one. Of course, that makes no financial sense whatsoever. The cost of the machines will be far less to the State if purchased in bulk. So, do the bureaucrats really want to promote reliable science... or do they simply want to eliminate the embarrassment that occurs when captured sample analysis demonstrates the problems with breath testing.

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