Defense Attorneys and AG Dispute Breath Tests' Validity

Jul 5, 2015

Credit Joe Gratz / Flickr Creative Commons

Police and defense attorneys now have a second list of officers who – for more than two years- may not have been properly certified to give breath tests.

As defense attorneys begin efforts to overturn DWI convictions, they say the state isn’t doing enough to alert defendants.

They got the updated list in a letter from The Attorney General’s office last Tuesday. Deputy Attorney General Ann Rice says it is impossible to tell whether these officers passed their annual breathalyzer recertification exams. Still, she says, “those officers are considered validly certified.”

New Hampshire police officers can take their recertification exams either in person, or online. The online version was designed by Research Triangle Institute, or RTI International specifically for New Hampshire. The software license costs the state $10,000 a year. 

Now, the Department of Safety acknowledges that at least as far back as 2012, the online course was giving passing grades to officers who didn’t complete the whole test.

Two weeks ago, the AG’s office sent out a list of 64 officers who the state confirmed were wrongly certified. The state now considers the 100 or so breath-tests given by those officers invalid evidence.

The state is treating the new list of an additional 157 officers differently.  It still considers these officers’ test results valid, even though Rice says there’s no way to know if they really are.

Defense attorney Ted Lothstein calls that decision “cavalier.”

"If there’s no way of knowing if they passed the test, the benefit should go to the driver, the person who for court purposes is presumed innocent,” he says.

Lothstein’s office has already vacated one DWI conviction and gotten a separate license suspension overturned. “That would have been a 6 month suspension,” Lothstein says. “Now there is no suspension.” 

Since 2012, 376 DWIs have been filed in court. 128 were aggravated DWIs, and thus could have resulted in jail time. It’ll be up to defendants to request a hearing and judges to decide which of those could be overturned.

Deputy AG Ann Rice says by relying on prosecutors to contact defendants, and alerting the head of the criminal defense bar, the state is taking the most efficient route to deliver justice to DWI defendants.

But defense attorneys say this approach is not enough.

Ryan Russman defends upwards of 150 DWI cases a year. He says the state should have gone straight to the Department of Motor Vehicles, which imposes an automatic license suspension for almost every DWI.

“The DMV has these records,” he says.  “That’s where the inquiry needs to begin.”

Russman says at least half of DWI defendants don’t hire lawyers. He’s not sure all police departments have the man power to track down those who have, for instance, moved.

In Epping, Police Prosecutor Heather Newell could have as many as seven reopened DWI cases. She says, her officers can and will seek people out – they do that kind of thing all the time. “I’ve had this happen with witnesses and victims in cases before and they will do some legwork to try to track people down,” she says.

She’s comfortable with the responsibility of notifying defendants.  And, she says, don’t forget:  Most of these officers’ breath tests were probably accurate.

“At least in my officer’s case, based on his training, his years of experience, and his years of being certified,” she says, “I don’t doubt that those tests were very likely valid. However I understand that the statute requires that they have their certifications. And those things are in the rules for a reason.”