Interviewer: Suppose someone is pulled over for perhaps a traffic infraction and there has to be field tests. In New Hampshire, do they use preliminary alcohol screen devices like mini Breathalyzers?
David: They do. However, many of the judges I appear in front of are not impressed by them and will not consider them as substance of evidence. The Intoxilyzer 5000 machine is certified by the state as being accurate for determining DWIs, but that type of machine requires a 20 minute wait period to make sure there is no alcohol in the person’s mouth.
The .33 I mentioned a while ago, well the judge thought she was not that high because she perhaps burped or something. The judge thought that burping would have caused a number of that magnitude.
The hand held preliminary breath test devices they have might be good enough to catch high school kids that should not be drinking anything at all. But in terms of using the preliminary breath test devices to bag people for DWI, most agencies do not do that. Manchester does not. Nashua does not. Concord does not. Those are the three largest cities.
So, again, some agencies use preliminary breath tests but the majority of agencies do not.
Interviewer: Just to be clear, there is potentially a breath test that may happen on the side of the road. But the main one everyone talks about is one that happens at the police station using the Intoxilyzer 5000 in New Hampshire.
David: That is correct. A couple of the agencies I deal with on a regular basis take people to Parkland Hospital and draw blood instead. Blood tests are substantially more accurate.
Interviewer: How often are blood tests used versus breath tests?
David: In Derry District Court, they are used more frequently than breath tests. That is a preference that law enforcement has. Curiously enough, the Attorney General’s office in negligent homicide cases has basically instructed law enforcement to use blood tests- not the Breathalyzer machines- and to draw the blood at least twice, an hour apart.
Interviewer: Is that to make sure they get valid samples?
David: The reason they draw blood twice would be to prepare for a trial where someone like me might suggest the driver just had a couple of shots for the road. Then, when he was driving, he got involved in the accident.
Furthermore, the alcohol he just consumed hadn’t actually been digested and hadn’t actually gotten into his blood stream. His blood alcohol content was rising. So unfortunately when they took the test, this number was higher than it was at the time he was driving.
Basically blood is taken with respect to individuals in motor vehicle fatalities; although they can take blood in other circumstances. The blood being drawn twice an hour apart would be a clear indication as to whether the person’s blood alcohol content is going up or whether it is going down. That assists the prosecutor in terms of establishing with more certainty what the blood alcohol content might have been at the time of the fatal accident.