The New Hampshire Department of Safety is asking the Legislature to drop a requirement for suspects in a DWI arrest to receive an independent sample of their breath test.

Currently, a number of states have a similar requirement for blood or chemical testing. However, New Hampshire is the only state that retains this law for breath testing. The independent sample allows a defendant to receive his or her own lab results, which are on occasion different than the state's results.

The main problem with the current law is only one type of breath test machine can preserve a breath sample right now. That machine is the Intoxilyzer 5000, which is over 2o years outdated and has proven unreliable in countless court cases. The process for taking and saving the breath is in no way precise on this machine. Today's machines run at least two tests and a control. The tests are compared to determine if there was any inaccuracy or issue with the device. The Intoxilyzer does not offer this protection.

The result is New Hampshire must continue to use a technology it knows to be outdated simply to meet state law requirements - a type of Catch 22 for prosecutors. Since no other state requires breath to be preserved, there is little incentive for manufacturers to develop technology that is both advanced and can fulfill this older requirement.

According to statistics in the Concord Monitor, about 250 cases last year were thrown out because tests were not up to standard. This represents about a 5% fail rate for trying DWI cases based on breath evidence. It is important to note that only 15% of all DWI defendants even analyzed their breath tests further; the statistics could go up if more were looking into this issue.

Further, since only one company provides all of the materials necessary to fulfill the independent sample requirement, if there is an issue with that company, the state cannot proceed with testing effectively. This summer, there was a shortage on parts due to a delay with the manufacturer, and the delays were passed on to law enforcement agencies who could not effectively maintain their machines. If the company stops making the machine, the law would mean no breath tests could ever be admitted as evidence in New Hampshire.

The Legislature has considered dropping this requirement three times in the past, and in each case it has kept the requirement for an independent test in place. The House passed the measure in May, but the Senate voted to deny it in a unanimous decision. 

The main objection is the way an independent review of evidence is granted to defendants in their due process rights. By not permitting a defendant this ability, the state would be violating the ability of a person to provide for his own or her own defense. 

Another objection arises out of the fact breath tests are so inaccurate. There are a number of issues surrounding whether they are even admissible as evidence, such as partition ratios, the presence of other chemicals on the breath and user error in giving the test. Without an independent evaluation, many feel these problems will go undiscovered.

Colorado was the only remaining test to have this requirement. Colorado dropped the requirement recently so it could adopt the new technology. This is both a victory and a crushing blow for defendants. On the one hand, the Intoxilyzer 5000 is an insufficient machine according to most scientists. On the other, obtaining an independent test keeps breath testing more honest. Ultimately, the only answer will be for a company to develop new technology that provides for an independent sample. Unfortunately, it does not appear the money is there for this to occur.