04/27/2009.  NH Supreme Court upholds Due Process right in DWI investigations.

Today the Court held that police must capture and preserve additional breath samples when administering breath tests at the police station, for later analysis by an independent laboratory at the accused's own expense.

Without captured breath samples, the Intoxilyzer 5000 is nothing but a "black box" - we don't know how it's software works, we don't know the extent to which it can be trusted to screen out "interferent" compounds that are misidentified as alcohol on the breath, and we don't know when it has malfunctioned and produced a misleading and erroneous result.

For decades, the legislature and courts have required that police preserve a captured breath sample for analysis by a much more sophisticated gas chromatograph instrument, but in 2010, the legislature sought to eliminate that fundamental safeguard for the falsely accused.

That's why Ted Lothstein, and friends and fellow DWI lawyers John Durkin and Mark Stevens agreed to co-author an Amicus ("friend of the court") brief on behalf of the New Hampshire Association of Criminal Defense Lawyers (NHACDL).  The brief opposed a pending Bill that would eliminate the requirement of captured breath samples in DWI investigations.  David Rothstein, on behalf of the Appellate Defender Program, also submitted a brief in opposition to the proposed law.

On April 27, the NH Supreme Court rejected the position of the Department of Safety, House Criminal Justice Committee and Attorney General's Office — instead ruling that eliminating the captured sample requirement would be fundamentally unfair.  A big victory for the NHACDL, for DWI lawyers and their clients, and for the cause of justice.  Read NHACDL's Amicus Brief here.