Interviewer: Let’s go over the use of the Breathalyzer? How do the DMV look upon that case?
The Arresting Officer Has to Supply Proof at the DMV Hearing That the Breathalyzer was Properly Functioning and Maintained
David: When the person uses the Breathalyzer, state law of New Hampshire requires that the client get a second sample of his breath that he could have tested by his own chemist. When the arresting officer attends the administrative hearing, he or she has to bring proof, such as certification documents for the machine to certify that it’s recently been tested by the Department of Safety. It has to be noted that the calibrations have all been verified and that it is in proper running order.
The police officer is required to produce or to basically produce evidence that he has been certified to administer the test on the machine. The certifications for an officer last for 12 months. Basically, he or she has to provide evidence that the machine and the person are both certified to operate these machines.
Can the Results from the Breathalyzer Be Challenged?
Regarding the machine itself, in New Hampshire, there was a superior court case where the superior court reversed an administrative decision. There’s a right to appeal the lead decision to the superior court within 30 days.
New Hampshire’s Superior Court Overturned an Administrative Suspension Based on Breath Test
In fact, there was such an appeal with respect to a breath test number of .08. The logic of the superior court’s decision was during the hearing, there was evidence that the reading of .08 might really be .078 rounded up or .082 rounded down. Therefore, a result of .08 can’t be distinguished from a result of .078 rounded up or a .082 rounded down.
It’s not necessarily over .08 or higher and in that particular decision, they basically ruled that a result of .08 is not adequate grounds for administrative suspensions based on a breath test.
Blood Test Results Are Considered Highly Accurate and Are Always Administered to Drivers Involved in Fatal Accidents
A similar appeal went up with respect to blood test and the court system basically said no. The blood test is precise enough so if you get an actual number, that’s the actual number.
In fatal accidents, the attorney general of law enforcement manual instructs the police people to draw blood from the suspect as opposed to having them blow into the machines. That’s commentary on the reliability of machines.
Can You Refuse to Undergo a Breath Test?
Interviewer: Do they still have you draw blood if you use the Breathalyzer?
David: You refuse the Breathalyzer and that is pretty much it from the government’s point of view. In theory, you could get your own blood test but you’d have to make arrangements on your own. When you’re under arrest for DWI, it’s not the best of circumstances to all of a sudden go looking for a medical provider that’s willing to draw blood to test it. In theory, you’re entitled to an independent test of your blood. Good luck trying to arrange it.