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 Second, the technology currently used by New Hampshire law enforcement is outdated.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 Their conversion ratio from breath to blood is unknown and outdated.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.