NH Looks Into Updating Breath Test Laws

The New Hampshire Department of Safety recently asked the State Legislature to drop a requirement for DUI/DWI suspects. As it currently stands, New Hampshire law requires all suspects in DWI arrests the opportunity to receive an independent sample of their breath test in addition to the sample taken by law enforcement. With this individual sample, suspects can obtain their individual lab results and offer them as evidence in court.

Unfortunately, there are two major problems with this proposition. First, the law protects DUI suspects by providing them with a way to obtain independent lab results. Second, the technology currently used by New Hampshire law enforcement is outdated. Currently, New Hampshire law enforcement depends on the Intoxilyzer 5000 to preserve a breath sample – a machine whose technology is more than 20 years old.

The Intoxylizer is the only machine on the market that can preserve breath samples. Unfortunately, the quality of breath preservation has not advanced at the same rate as lab tests, meaning that samples obtained at the scene with current technology often present very different results than those obtained from the Intoxilyzer. To demonstrate the degree to which the results differ, in 2008 approximately 250 cases were thrown out due to the low correlation of the Intoxilyzer breath test with the independent lab tests.

Despite differing correlations in breath results, the manufacturer of the Intoxilyzer, CMI, Inc., will not release its source code due to its own proprietary interest. Their conversion ratio from breath to blood is unknown and outdated. Relying completely on a machine that has been shown to have a large percentage of discrepancies is extremely worrisome for individuals who are accused of drunk driving.

Although the defendant’s independent breath tests receive the same degree of consideration as those obtained by police, not all suspects use this to their advantage. Only approximately 15% of DWI defendants actually pursued independent breath tests last year.

It is in the state’s best interest to continue offering individuals the opportunity for an independent evaluation. Due to the inconsistently of state equipment, stripping individuals of this right would surely lead to the wrongful conviction of numerous individuals.

DWI Program Cuts Spell Longer Sentences for Multiple Offenders

As a result of seventeen state job cuts in Laconia, some DWI offenders will be spending more time in jail than their judge required.

New Hampshire state laws surrounding DWI offenses are very strict. Individuals convicted of multiple or aggravated DWI charges must serve their sentence within 21 days of conviction.  This type of sentence comes with a contingency that they must serve at least ten days in jail, seven of which must be spent in an intervention program for offenders.

New state budget cuts and resulting job losses, however, have closed the state-run Multiple Offender Program (MOP), based in Laconia, giving convicted individuals no choice but to serve more time in jail or find alternative options.

Privately run intervention programs are certainly available to offenders, but many of these cost more than $1,000 in up-front fees.  This means that individuals who are unable to pay these private costs may have to spend up to 30 days in jail instead.

The Laconia job losses come as a result of statewide budget cuts. Nancy Rollins, the associate commissioner of health and human service, said it was a difficult decision to cut MOP.  To assist individuals, Rollins said the state may offer to pay the up-front costs of private programs and collect the costs from the offenders after the treatment has ended.

No definite plans are in place, however, and Rollins says the state is working hard to find a good working alternative to the previously state-run program.  To assist in this transition, many courts are withholding sentencing.

In 2008 there were 2,732 DWI cases in New Hampshire that involved multiple or aggravated offenses.  Seventy five percent of those cases were handled by MOP.  Now that the program is gone, government officials will be working hard to find feasible alternatives that appease the court as well as maintain an efficient system to handle these DWI cases.

For a video on this news topic, visit http://www.wmur.com/news/21341593/detail.html

Texting While Driving – The New DWI?

Over the last year more and more studies have shown that texting while driving can be extremely dangerous.  The visual distractions of text messaging can cause reckless driving and governments are now issuing new laws to target this problem.

In fact, the dangers of texting while driving have become so prevalent, texting laws are fast becoming as strong as DWI/DUI laws.  Many law enforcement officers believe that driving while texting impairs drivers in a way similar to intoxication.

New Hampshire passed a law banning texting while driving back in early August of this year.  While this is not the same as DWIs or DUIs, it’s certainly a wake-up call for people who like to multi-task and text while they drive.  The details of these laws are also different than those for driving under the influence and it’s important to take note of the rules, regulations, and potential consequences of these activities.

According to the NH texting law, any text messaging or typing (including on handheld or computers) while driving is considered a crime.  The law does, however, allow drivers to type names and numbers into their phones to make calls.

So how do the police no the difference?  In the event of an accident or other driving infringement, the officer is allowed to check the phone log provided the driver consents to a search warrant.

The New Hampshire texting law takes effect in January, 2010.

Other states have passed similar measures banning cell phones and texting.

Maine, for example, has just passed a distracted drivers law that covers texting.  Maine’s law brings attention to the level of distraction by making it a traffic infraction and penalizes drivers who cause accidents while distracted.  Although texting has become the  heated issue, the law actually covers any distraction including talking on a cell phone, eating, or any other activity.

There’s a push in Washington to get texting banned nationwide.

Whether it’s talking on the phone, using the internet, texting, or messaging, more and more drivers are attempting to stay connected behind the wheel.  As a result of these distractions, more people are getting into accidents  and states are having to find ways to deal with this new problem.  So, as communication and technology become increasingly more accessible, it’s easy to see how laws are quickly catching up with the growing trend.

New Hampshire DWI Checkpoint Debate Continues

The Seacoast Online continues to cover the ongoing debate about the Constitutionality of DWI checkpoints. On one side is the protection of the Fourth Amendment; on the other side is the role of law enforcement to ensure the protection of its citizens.

Proponents of the checkpoints argue that the minor infringement of the Fourth Amendment is worth the greater cause of reducing drunk driving. Clearly this poses as issue when the government decides the degree of which infringements are acceptable.

In 1990, the Michigan Supreme Court ruled DWI roadblocks were in violation of the Fourth Amendment, but in a 6-3 decision, the United States Supreme Court found properly conducted checkpoints to be Constitutional.

So what is a properly conducted checkpoint mean? DWI checkpoints are supposed to be random, and the National Traffic Highway Safety Administration has issued guidelines in an effort to curb overly intrusive behavior on the part of law enforcement. These guidelines and standards from Ingersoll v. Palmer (43 Cal.3d 1321 (1987)) include:

  • Decision-making must be at a supervisory level, rather than by officers in the field.
  • A neutral formula must be used to select vehicles to be stopped, such as every vehicle or every third vehicle, rather than leaving it up the officer in the field.
  • Primary consideration must be given to public and officer safety.
  • The site should be selected by policy-making officials, based upon areas having a high incidence of drunk driving.
  • Limitations on when the checkpoint is to be conducted and for how long, bearing in mind both effectiveness and intrusiveness.
  • Warning lights and signs should be clearly visible.
  • Length of detention of motorists should be minimized.
  • Advance publicity is necessary to reduce the intrusiveness of the checkpoint and increase its deterrent effect.

The reduction of drunk driving is an admirable cause, and you’ll be hard-pressed to find someone who doesn’t support educational efforts. Law enforcement, rehabilitation programs and national education efforts are helping to educate Americans about the reality of drunk driving.

Fortunately, these drunk-driving reduction efforts have had a positive impact. The national percentage of alcohol-related motor vehicle fatalities has declined from 60 percent in 1982 to 37 percent in 2007. On a state level, New Hampshire has a slightly higher rate; 40 percent of all automobile fatalities are alcohol-related.

As the debate moves forward, I hope a proper balance remains between Constitutionality and safety. The moment an individual’s rights are taken away in an effort to “protect citizens” is the moment our government has stepped beyond its boundaries and become a police state.