DWI Attorney John Durkin recently filed a lawsuit under the New Hampshire Right to Know Law seeking a list of police officers who failed the Intoxilyzer Recertification exam since 2013, but who were erroneously recertified. The following is more information from attorney Durkin and news articles in which he was quoted regarding this issue. We’ll keep you up to date as this case progresses.
It has been recently discovered that as many as 108 police officers in New Hampshire failed their annual Intoxilyzer Recertification exam since 2013, but were erroneously informed that they passed and erroneously recertified to administer the Intoxilyzer breath alcohol test. Officers in New Hampshire must be certified to administer alcohol breath testing and each officer must be recertified on a yearly basis. Yearly recertification includes an examination that the officer must pass as a condition of recertification.
No result from an alcohol breath test is admissible in a criminal prosecution for DWI or an administrative license suspension action unless the officer is properly certified to operate the Intoxilyzer. Each year there are approximately 4,500 arrests for DWI in the State of New Hampshire. In cases involving a breath test over .08 for those over age 21 and over .02 for those under age 21 the driver is subject to an administrative loss of license ranging from 180 days to two years and a prosecution for a per se DWI, RSA 256-A:2, I (b).
The officer’s lack of certification is an absolute defense to these administrative license suspensions and criminal prosecutions. After repeated informal attempts to obtain the list of officers who failed the exam and the dates thereof proved unsuccessful I filed a lawsuit under the New Hampshire Right to Know Law seeking this information.