NH Supreme Court rules police must preserve breath samples

For now New Hampshire remains the only state that provides motorists arrested for DWI their breath samples. In a 3-2 advisory ruling, the New Hampshire Supreme Court rebuffed the legislature's attempt to change the procedure.

Law enforcement officials in the Granite State argued that the requirement of preserving breath samples means the police are forced to use an "antiquated" breath test machine -- the Intoxilyzer 5000. Timothy Pifer, the man in charge of New Hampshire's 107 breath test machines described the Intoxilyzer 5000 as a "three-legged stool."

The State also claimed the the current law prevents law enforcement "from staying current with emerging technology."

"In light of the apparent absence of realistic access to additional testing, we are reluctant to conclude that the proposed breath testing is substantially without risk of error." -- NH Supreme Court opinion authored by Chief Justice John Broderick.

The Court was concerned about violating the due process rights of citizens accused of drunk driving. Their primary concern was that even though the state allows for the accused to have an independent test, it is nearly impossible to do.

Jay Godfrey of CG Labs, who tests about 20 samples a week, said that one of samples is faulty 7% of the time and both samples are faulty about 4% of the time.

Interestingly enough, the dissenters disagreed with the legislature's contention that the Intoxilyzer 5000 is "antiquated." In fact, the dissent argued that there was no need to preserve samples because the technology behind the Intoxilzyer 5000 was accurate and reliable.