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Breath Tests and the Intoxilyzer 9000

In many DWI cases, breath test evidence can play an important or even decisive role. However, you should not be discouraged if your case has evidence of a breath test at or above the legal limit.

There are so many potential challenges to breath test evidence in DWI cases — challenges to the admissibility of the test result under the New Hampshire and Federal Constitutions, challenges to the admissibility of the test under the governing laws and regulations, and challenges to the scientific reliability of the evidence under the specific facts and circumstances of the case — that we do not see much, if any, correlation between convictions and whether the State obtained a breath test in the case.

-- The Intoxilyzer 9000

New Hampshire — Three Types of Breath Tests

In NH, there are three basic types of breath tests.

  1. int_intoxilyzerPreliminary Breath Tests. At roadside, some police officers and State Troopers ask the driver to take a PBT - a Preliminary Breath test, also known as a Portable Breath Test, using a handheld device that relies on fuel cell technology to estimate BrAC (breath alcohol concentration). These tests can help establish probable cause for the arrest, but may not be admissible to prove guilt at trial. NH citizens and visitors have the absolute right to refuse a PBT.
  2. Intoxilyzer 9000. This is a brand new machine for NH. These were installed in police departments and state police barracks throughout the State beginning in November, 2018. Unlike the machine used for the last four decades, the Intoxilyzer 5000, this new machine does not have the ability to capture a sample of driver's breath for later testing by an independent laboratory. This will lead to litigation - stay tuned!
  3. Intoxilyzer 5000EN. This is the antiquated technology used throughout the State from the late 1970s all the way until late Fall, 2018 when it was taken out of service. A large, console shaped device with a keyboard, antiquated LED display, a tube to blow into, and tubing linking it to a jar of liquid called the external reference.Unique to NH, Intoxilyzer 5000s had a mechanism to capture two samples of the subject's breath, in tubes containing a silica gel, so the defendant can get her breath samples retested by an independent laboratory. Unfortunately, this important safeguard is now gone, apparently forever.
  4. Jail Breath Tests. After a person under arrest has seen a bail commissioner, they may be taken to a local jail, either because they have been placed in "protective custody" to stay overnight until BrAC falls to an acceptably low level, or because the person has not posted bail. Most NH jails have a breath testing machine and at least two NH jails give breath tests upon admission to the jail. These breath tests, depending on the result, can provide exculpatory evidence - evidence of innocence.

Legal and Scientific Challenges to Breath Test Evidence

There are numerous legal challenges to the admissibility, or the legal relevance of, breath test results. These include, but are not limited to:

  1. Breath test operator not properly certified (see below).*
  2. 20 minute observation period not properly conducted.*
  3. Officer did not have reasonable grounds to arrest (ALS hearings).*
  4. Officer did not have probable cause to arrest (DWI case in court).*
  5. Machine not properly calibrated.
  6. Machine certification records not admitted into evidence by prosecution.*
  7. Machine maintenance records not admitted into evidence by prosecution.*
  8. Officer gave incorrect or misleading advice regarding accused's right to take, or not take, the breath test.
  9. Officer gave incorrect or misleading advice regarding the consequences of taking, or refusing to take, the breath test.*
  10. Mouth alcohol, caused by foreign object in mouth, contaminates breath sample.
  11. Gastroesophageal Reflux Disorder contaminates breath sample.*
  12. Officer did not provide captured samples to accused for re-testing.
  13. Independent testing of captured samples show that the Intoxilyzer 5000EN results were not reliable.*
  14. Specific circumstances of case support a "rising BAC" defense - that the person was not over the limit when driving, but BAC rose between time of driving and time of testing. These cases tend to involve a person that had several quick drinks, shortly before driving.*
  15. Specific circumstances of case rebut the prosecution's "retrograde extrapolation" theory - that the low BAC in the case reflects a situation where the person's BAC at the time of driving, or at the time of an accident, was much higher than the person's BAC by the time a test was administered.*
  16. Test result is close enough to the legal limit, that an argument based on the margin of error, or based on extrapolation of the likely BAC at the time of driving, provides a reasonable doubt as to guilt of the accused, leading to an acquittal or dismissal of the charge.*

* means that our lawyers have either won an ALS hearing, won a trial, or obtained a settlement that did not involve a DWI conviction, based on that defense.

DWI Breath Tests Administered by Uncertified Officers

Around 2015, a scandal came to light in which over a hundred NH police officers were conducting breath tests, for years, who should not have been certified to conduct the tests. This scandal affected cases prosecuted between January 1, 2013, and somewhere around June, 2015 - a two and one-half year period! This list of officers consists of officers where the State of NH agrees that the officer should not have been certified to conduct breath tests - but did so anyway - during at least part of that time period. This second list consists of officers where the validity of the officer's certification to conduct a breath test is currently in dispute.

Ted Lothstein Recognized as an Authority on this Issue

When this scandal broke, news reporters relied on Ted Lothstein as an authority to comment on the issue, resulting in coverage in the Concord Monitor, in the Associated Press, and on New Hampshire Public Radio.

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