New Hampshire Driving While Intoxicated - Developments In The Law

    Law enforcement in New Hampshire is increasingly relying on new technology and legal tools in order to enforce existing laws relating to the crime of driving while intoxicated.  In many instances, the laws on the books have not caught up with the technology that law enforcement is relying upon to investigate these cases.  Many of these cases involve a "he said, she said" type situation on the roadside where a single officer levels the stigmatizing accusation of impaired driving against a lone driver.  More than ever, innocent drivers are being wrongly charged with DWI.  This comment seeks to highlight some of the new technology and legal tools in the law enforcement arsenal and explains some of the defenses to prosecution efforts to rely on these methods.

    Traditionally, law enforcement in New Hampshire relied upon a breath test conducted at a police station or state police barracks in order to make its DWI case.  This test is known as the Intoxilyzer 5000.  It creates a second breath sample captured in a test tube.  The suspect may then have this test tube evaluated on his/her own or through an attorney by directing it to an independent laboratory.  More and more, however, law enforcement is employing a device, commonly referred to a Preliminary Breath Test ("PBT"), to test for alcohol impairment on the road side.  A PBT test is a hand held breath device that law enforcement is administering to a suspect as part of Field Sobriety Testing.  The laws that relate to breath testing has not caught up with the use of this device.  Unlike the Intoxilyzer 500 administered at the station, the PBT device DOES NOT create a second sample for independent testing.  This creates a defense under New Hampshire law to the admissibility of the PBT test results.  New Hampshire law requires that a person subject to a breath test be afforded the opportunity to conduct an independent test.  The PBT test does not provide this opportunity.  Thoughtful defense lawyers have seized upon this omission to advance a Constitutional Due Process argument under both State and Federal constitutional law to suppress PBT evidence.  In turn, various District Courts have suppressed such evidence, a result that can land a defeating blow to the State's prosecution of a DWI case.

    More and more, law enforcement is turning to blood testing to investigate DWI cases.  This reflects the increased use of prescription medications and other controlled drugs and law enforcement's corresponding effort to detect drivers impaired by such substances.  Blood testing for various controlled drugs requires an additional layer of sophistication in the defense of these cases.  Thoughtful defense attorneys may consult with independent experts in order to evaluate whether the presence of certain substances in a blood test result truly causes impairment, which is a required element of any DWI prosecution.  Additionally, the admission of blood testing results should require the State to call the lab technician that performed the test under recent United States Supreme Court case law.  Understanding how to put the State to its burden on this point can make the State's case difficult to prove as there are only a few lab technicians conducting such tests, but many such cases working their way through District Courts state wide.  Finally, the State's presentation of blood testing evidence requires the State to establish an appropriate chain of custody and meet a myriad of regulatory obligations imposed by the Department of Safety.  Understanding these nuances may permit a thoughtful defense attorney to call into question the reliability and admissibility of blood results in DWI cases. 

    Law enforcement are also using road blocks or field sobriety check points in order to cast a broad net for impaired drivers. To do so properly, law enforcement must first submit a request to a local court for permission to conduct a check point of this variety. The check point must be properly publicized to give drivers fair warning that a check point is soon to occur.  A plan for stopping drivers must be established ahead of time to ensure that law enforcement avoids racial profiling or targeting young drivers.  Additionally and importantly, any request submitted by law enforcement must establish that drunk driving is a particular problem in the specific location targeted for the checkpoint.  According to the Attorney General's Office memorandum on this topic, statistics ought to be used to establish the need for a check point at a particular location.  Analyzing the law enforcement request for court permission for such a check point may provide for a number of interesting defenses.  As challenges to such roadblocks are few, law enforcement often fails to particularize its request to the court with appropriate statistical information.  The absence of such information can allow a thoughtful defense attorney to call into question the propriety of the check point in the first place. 

    These are just a few of the ways in which New Hampshire law enforcement rely upon technology and legal tools to investigate and prosecute DWI cases.  Understanding the application of these tools requires an in depth knowledge of recent trends in New Hampshire DWI investigations.  It is the understanding of these trends that may provide for an effective defense to DWI charges.