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Hundreds of New Hampshire DWI cases could be affected from improper breath tests

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Hundreds of DWI Cases Called Into Question Because of Software Glitch

A software glitch, which is believed to have begun in December of 2013, could have erroneously recertified 110 police officers to administer Breathalyzer tests. This calls the validity of hundreds of New Hampshire DWI cases into question.

The state of New Hampshire discovered the glitch on May 1st, but so far, no one has been able to determine how the error happened or which police officers have been administering breath tests without the proper, state mandated credentials.

The state’s Department of Safety, which oversees the state’s forensic lab, is working closely with the vendor who administered the exam to determine if all 110 police officers failed the test. To date, 11 police officers have been identified as not passing the recertification test. According to Associate Attorney General Jane Young, the chiefs of police and county district attorneys of those officers have been notified, and all DWI cases involving these officers are now being reexamined.

A member of the New Hampshire Association of Criminal Defense Lawyers, filed a right to know request last week with the Department of Safety to have the names of these officers released, in addition to the name of the third party vendor who administered the exam. However, this information has yet to be released. As of yet, it is unknown if the vendor has administered other similar tests in neighboring states.

New Hampshire DWI Cases Already Under Dispute

In the state of New Hampshire, a police officer must maintain their licensing certification for breath tests in order for the results of these tests to be valid in a court of law. Police officers are required to take the recertification exam on a computer.

Already, in one Seabrook case, a prosecutor has requested on May 28th that a judge vacate the guilty plea struck in a driving while intoxicated case in the Seabrook division of the 10th Circuit Court. In this particular case, the arresting police officer, on May 15th, discovered that he was one of the officers who had been erroneously recertified, per the court motion.

The issue of recertification quickly became an emerging issue in the upcoming trial of Remi Gross-Santos. The Portsmouth adolescent faces multiple charges for second degree assault and aggravated drunken driving after striking two women in Hampton last year. Gross-Santos’s defense lawyer,  cited the recertification issues as a primary reason why the arrest of his client should be thrown out of court. In his filing, Cotrupi argues that the police detective who administered the breath test to Gross-Santos was not qualified to do so.

Multiple Groups Are Being Scrutinized

The confirmation process that these officers did achieve a failing grade has been complex and slow going. According to Young, it was an employee of the NH Department of Safety that initially uncovered the error. The state is now analyzing two different groups of police officers who were administered exams between 2013-2014 and 2014-2015.

In Young’s statement, she said that district court prosecutors, who handled the majority of driving while intoxicated cases, were initially alerted about the recertification issue in early May.

Richard Crate, the Enfield Chief of Police, stated that, last month, he was informed that a police detective in his seven man department was one of those officers whose certification was being called into question. In this scenario, the detective was informed that he had been mistakenly recertified mere days after being initially told he had passed the test, so no new DWI cases were affected by the mistake.

Crate, who is the currently serving president of the New Hampshire Association of Chiefs of Police, states that Breathalyzer tests are just one component of evidence in a DWI case. It is his belief that only a minor percentage of cases will be affected by the recertification error. He notes that breath tests are simple to use, and the instructions for how to use the machine are listed on its side.

“Obviously, we want to make sure our officers have the proper training and conduct the tests appropriately,” he said. “While we are trying to make use of technology, some of these things will happen, as we all know.”

Drivers’ License Suspensions To Be Affected As Well

This gross error in breath testing will have an effect on more than just criminal cases, according to multiple NH DWI attorneys. Brian Lavallee, a defense attorney from Portsmouth, states that many individuals do not understand that motorists arrested for driving while intoxicated must also attend a different proceeding, referred to as an administrative license suspension hearing, with the New Hampshire Department of Motor Vehicles.

In his released statement to the media, Lavallee stated that many NH citizens are shocked and surprised to learn that, under New Hampshire’s Implied Consent Law, a motorist who refuses to submit to a chemical test, or whose test results return a BAC level of .08% or higher, automatically lose their driver’s license for a minimum of 180 days.

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