State must share breath tests

Lawmakers trying to decide whether New Hampshire should continue to provide suspected drunken drivers with samples of their breath didn't get much help yesterday from the state Supreme Court: Three justices said eliminating the requirement would be unconstitutional, and two others disagreed.

New Hampshire is the only state in which the police are required to take two samples for breath tests and give one to the driver so he or she can have it tested independently. The Department of Safety has repeatedly asked the Legislature to drop the requirement, arguing that it forces the state to continue to use outdated equipment.

The department has also cited practicality concerns. New Hampshire can use only the Intoxilyzer 5000 breath-test machine because it alone provides a second sample. Only one company still makes those machines because New Hampshire alone uses them.

Plus, only one company makes the breath tubes used with the machine.

In an interview this fall, Timothy Pifer, director of the state police lab that maintains the state's 107 breath-test machines, described the situation as a three-legged stool.

"If one (leg) goes out, it collapses," he said at the time.

Responding to a request from House lawmakers, Chief Justice John Broderick and two other justices, James Duggan and Carol Ann Conboy, said the state should continue taking and preserving a second breath sample because the technology still exists to do so at a reasonable cost. Though defendants would still have a right to have their blood or urine tested independently, the justices said that wouldn't be good enough given the difficulties suspects could face in finding technicians to perform the tests promptly.

They quoted from an earlier ruling in which the court said "the dictates of basic fairness require the employment of the technology currently in place which preserves second samples of breath, blood and urine."

Justices Linda Dalianis and Gary Hicks dissented. They sided with law enforcement officials who argued that the second breath sample requirement has prevented the state from keeping up with more accurate technology. None of the newer machines is able to save breath samples for defendants.

Pifer said yesterday if the state's existing breath-test machines become impossible to repair or replace, the police will have to test drunken-driving suspects' blood, which can be more expensive and time-consuming.

In Concord, it costs about $15 to do a breath test but $100 to call someone from Concord Hospital to do a blood draw for a test, police Chief Robert Barry has said.

Ann Rice of the attorney general's office, who with Pifer pushed for a change in the breath-test requirement, said yesterday that she was still analyzing the court's opinion to determine what, if any, options the state has.

Monitor reporter Annmarie Timmins contributed to this article.