The breath test, for many reasons, is the most commonly used test for DWI evidence.
It is easily obtained, costs less than other measures, and results can be obtained on the spot.
The portable testing equipment that the officers carry is more often used for the preliminary breath test, and there is typically a more reliable testing system at the jail that will be used for any testing after your arrest.
The preliminary breath test is only admissible as evidence of probable cause, to establish that the officer had reason to arrest you in the first place.
New Hampshire law allows for the use of the Intoxilyzer 5000.
New Hampshire has very specific administrative rules governing exactly how the breath sample is to be taken and measured.
While these rules are intended to insure that the state has the evidence necessary to prosecute DWI cases, it can also work in your favor if you have an attorney who is well-versed in the use of breath testing equipment and can identify any errors that were made during the testing.
NH DWI Law for Breath Test Collection
Both your 20-minute observation period and your breath sample must be completed by a “certified operator.”
The operator has to follow very specific steps, including recording your name, his or her name as operator, the date and time of the collection, and the make, model, serial number and location of the Intoxilyzer 5000.
At least two breath samples need to be collected for each test, and the samples have to be within +/-0.02g/210L of each other, otherwise a third sample must be collected.
The operator must perform a check of the ambient air of the room with the instrument and also perform two internal tests (for calibration purposes) using a sample that is between 0.09 percent and 0.10 percent alcohol concentration.
The alcohol/water solution used for the calibration/external reference check has to be maintained at 34 degreesCelsius (+/- two degrees).
If any of these conditions are not met, the machine should be programmed not to complete your test.
Attorney Ryan Russman Explains Your DWI Sample Capture Bag
Drunk Driving Defense and Breath Test Evidence
There are various ways that an experienced DWI attorney can prevent breath alcohol test results from being admitted as evidence.
Obviously, if any of the protocols involved in collecting and testing the breath were not properly followed, your attorney will be able to argue for the court to disregard the evidence.
As well, the state has the burden of responsibility to introduce evidence (not just testimony) that proves that the Intoxilyzer machine has been properly maintained.
The state must actually introduce a copy of the machine certification, not just testimony from the certified operator, that the machine was certified and operating properly.