PORTABLE BREATH DEVICE RESULTS NOW ADMISSIBLE AT TRIAL
Recently, the State of New Hampshire purchased portable breath testing devices and distributed them to law enforcement agencies throughout the State to be used for pre-arrest testing. For the last several years, these devices have been being used by law enforcement, but the results could not be used for any purpose other than demonstrating probable cause to arrest for DWI. Effective January 1, 2004, the legislature declared the preliminary breath test result admissible in court �for any relevant purpose�, which will surely be construed as admissible to prove guilt. If one compares the newly amended RSA 265:92-a to the previous version of the statute which declared the result admissible only to prove probable cause to arrest, it seems clear that the legislature intended for the PBT test to be admissible at a DWI trial in order to prove guilt. It would not surprise me to see PBT results used by prosecutors to prove per se violations as well. No language in RSA 265:92-a suggests that the PBT result is not admissible for that purpose. It also seems clear that the legislature did not intend tests authorized by RSA 265:92-a to be governed by in any way by RSA 265:84; the legislative scheme seems to be that there are two separate kinds of tests, pre-arrest, governed by RSA 265:92-a and post-arrest, governed by 265:84. Unfortunately for the accused, the protections of RSA 265:87 only apply to tests under RSA 265:84.
The arrested person is not required to submit to the test, and there is no license suspension consequence to refusing or failing such a test. RSA 265-:92-a, however, does not require the officer to inform the defendant of any of the consequences of the decision to submit, other than to inform him that his decision to refuse or submit to the portable breath test will not be construed to either prevent or require a subsequent test. The officer is not even required to inform the person that taking the test is voluntary, or for what evidentiary purposes it may be used; he may simply request that the person submit. Although the statute does provide that a refusal to submit to a test may be used to prove probable cause to arrest, RSA 265:92-a creates no obligation for the State to inform the defendant of that consequence. It is my view, not yet based on experience, that many judges will not be persuaded that the failure of a defendant to submit to a portable breath testing device is probative of much of anything, since it seems intuitive that many people will decline to take such a test because of concern as to the accuracy of such a testing procedure. The officer, however, is obligated to inform the subject that �his or her failure to take the test shall not be construed to prevent or require a subsequent test pursuant to RSA 265:84.� My consistent early experiences were that most officers ignore this advisement, although as time has passed, it appears that more departments have educated their officers, and many provide them with printed advisement slips. The failure to advise may prove to be grounds for excluding the PBT result, both at an ALS hearing and at trial.
The refusal to submit to a preliminary breath test or submitting to a test at or over the legal limit does not carry administrative license suspension consequences; the amended statute does not provide for an administrative license loss for either a refusal or a test over the limit, and losses both under RSA 265:91 and 265:92 are limited to tests requested under RSA 265:84. RSA 265:92-a is silent as to whether a refusal to submit or a failed test may be admissible at an ALS hearing to establish reasonable grounds to believe the person may be under the influence of intoxicating liquor, except that the statute only specifically addresses admissibility of the result of the refusal in court, and does not make the provisions of this section in any way admissible or applicable to an ALS hearing.
RSA 265:92-A III gives to the commissioner of the department of safety the authority to adopt rules pursuant to RSA 541-A, �relative to methods and procedures for evaluation and approval of preliminary breath test devices.� Regulations were adopted by the commissioner of the department of health and human services relative to the approval of the devices, prior to the transfer of the public health laboratory to the department of safety. Those regulations became effective on 10/23/02 and appear in Part HE-P 2206, PRELIMINARY BREATH TEST DEVICES.
In keeping with the dictates of the enabling statute, the Regulations under He-P 2206 define the methods and procedures for obtaining approval of the various devices submitted for approval. The criteria include verification of both the accuracy and precision of the devices over a range of alcohol concentrations from under 0.02 to 0.10 and higher. A variety of preliminary breath testing devices have since been approved by the commissioner, a total of eleven, according to the OFFICIAL STATEMENT BY THE DIRECTOR, dated August 5, 2003. Under the authority of RSA 265:92-a I, a PBT may be administered by any police officer who has been certified by the police standards and training council. Both full and part-time certified officers are therefore eligible to administer PBT�s, even if they have not been specifically trained to administer a PBT. The statute does not authorize the commissioner to adopt rules relative to methods and procedures for the proper administration of preliminary breath test devices themselves, and no regulations have been adopted.
Prior to the approval of the various preliminary breath test devices under authority of RSA 2206.05, a lengthy study was authored by Rhonda Sugalski, Laboratory Scientist Three, then of the department of health and human services. Although the document is titled, �Evaluation of Preliminary Breath Testers,� and was undoubtedly prepared to facilitate and support the decision to approve or disapprove various breath testing devices under the authority of the statute, the document is a virtual manual for the various breath-testing units studied. The Sugalski publication (sometimes hereafter referred to as the PBT manual), however, does not set forth mandated operational procedures for the different PBT devices, since neither the statute of the regulations have established any criteria for the administration of such tests. Nevertheless, a thorough reading of the manual does suggest that certain procedures must be followed in order to conform to the procedures initially used by Ms. Sugalski to evaluate the various approved devices. Among these procedures are a twenty-minute period since the subject to be tested last had alcohol in his or her mouth, discarding of the mouthpiece between tests, periodic recalibration of the device, and compensation for altitude. Also, the regulations only provide that an approved unit be capable of producing accurate results over the temperature range of 4 degrees centigrade (39.2 F) to 37 degrees centigrade (body temperature). Some of the skeptics among us may have significant doubts as to the accuracy of these devices during a typical New Hampshire winter, when the likelihood of a forty-degree night is about the same as winning Megabucks.
In spite of the PBT manual�s indication that periodic recalibration is called for, no regulation or statute requires any such recalibration. Although each individual device is issued an official �PRELIMINARY BREATH TESTING DEVICE ORIGINAL CERTIFICATION,� no requirement of periodic recalibration or recertification of the device exists, and there is no �PREVENTIVE MAINTENANCE CHECK FORM,� as is the case with the intoxilyzer 5000.
Without such safeguards, such as the twenty-minute waiting period prior to the administration of a breath test, regular certification of the individual instrument for accuracy, the use of a simulator to assure accuracy, and any real-time self-testing of the device for accuracy, it is uncertain how accurate these devices actually are, and how much weight judges may choose to give to the results they produce. Hopefully, the accuracy of these devices will also be viewed with skepticism by trial judges.
Unlike a result of chemical test under 265:84 that is at or over the legal limit, a failed PBT test result is not prima facie evidence of the defendant�s being under the influence of alcohol pursuant to RSA 265:89. Not so clear, however, is whether the State may satisfy its burden of proof on a per se violation by introducing a preliminary breath test over the applicable legal limit. RSA 265:82 I (b) simply prohibits operation with �an alcohol concentration of 0.08 or more or in the case of a person under age 21, 0.02 or more.� It does not require a test done pursuant to RSA 265:84. But, since the blood alcohol concentration is clearly an element of the offense on a per se case, the State must, at the very least prove beyond a reasonable doubt that the result is at or over the legal limit.
PBT results seem ripe for attack as proof beyond a reasonable doubt for a variety of reasons. First, there is the problem of residual mouth alcohol; no twenty-minute observation period is required, although the PBT manual certainly makes it seem essential to accuracy. It may prove helpful to argue that virtually all of the safeguards that the good folks at the public health laboratory claim assure the accuracy of the Intoxilyzer 5000 do not apply to PBT�s. There is no six-month preventive maintenance check, no external reference test, no internal standards, no blanks, and no operational procedures for the operator to follow. The department of health and human services apparently deemed it necessary to insure the accuracy of the Intoxilyzer 5000 to provide for not one, but two, subject tests that must agree with each other within +/- 0.02%. Why should the court trust the accuracy of these small, relatively inexpensive units being operated with no safeguards of any kind, other than the initial certification of the department of health and human services that they are approved for use by law enforcement officers? We have no information on the accuracy of these devices in actual use after leaving the confines of the public health laboratory. Are they accurate when used on our clients out on the road, within +/- 5%, or 10% or 20%, or 50%? What is the affect of cold or heat, or other environmental factors on their operation? Does their accuracy decrease over time? Do they need, and have they gotten, calibration, repair, or replacement, and how soon? These are all questions that need to be raised and argued.
RSA 265:92-a may also prove to be a two-edged sword and sometimes be beneficial to the defense. Shortly after the effective date, I had the occasion to defend an aggravated DWI with an intoxilyzer test result of 0.17. The PBT, however, shortly after the stop, was 0.144. The case was quickly reduce to a straight DWI 1st when I pointed out to the officer that he was impaled upon the horns of a dilemma, since the PBT result certainly created reasonable doubt to believe that the BAC was in fact over 0.16 unless the officer chose to impeach the reliability of the PBT, thereby creating a whole series of problems for the prosecution when it chose to introduce the results of PBT tests in the future.
We may see challenges to the constitutionality of these recent changes, since it appears that the legislature may be violating the doctrine of separation of powers by its usurping the powers of the courts to determine the admissibility of evidence. Also, in the Cornelius decision, the New Hampshire Supreme Court, albeit in an indirect manner, ruled that it would violate rights of due process and fundamental fairness to admit a test result without furnishing the defendant a preserved sample for analysis by his or her own expert. Although Cornelius partly depended upon the availability of breath testing devices capable of preserving a second sample, and I know of no preliminary device that is capable of preserving a second sample for the defendant, nevertheless, a persuasive argument can certainly be fashioned that the use of the preliminary devices has the effect of circumventing the constitutional right of the defendant to the analysis of a preserved sample. I recently had the occasion to file such a Motion in a case where my client had submitted to a PBT with a result of 0.16 and then had refused to submit to a post-arrest Intoxilyzer test at the police department. In my view, the .16 result was by far the most potentially dangerous piece of evidence in the prosecution�s arsenal. After filing an objection to the Motion, the prosecutor elected on the morning of the hearing on the Motion to agree that he would not seek to introduce the result into evidence.
Is the PBT subject to a Daubert challenge? Should one be made in light of the Supreme Court�s abrupt retreat from the precipice in its overruling of Judge Lawrence�s findings in Dahood? What happened to implied consent rights? Are they purely statutory and can the legislature abolish them?
265:92-a Preliminary Breath Test.
I. Any police officer, who has been certified by the police standards and training council according to standards for such certification contained in rules adopted by said council pursuant to RSA 541-A, having reasonable grounds to believe that a person has been driving or operating a vehicle on a way while under the influence of intoxicating liquor or controlled drug or while the person's alcohol concentration was 0.08 or more or in the case of a person under the age of 21, 0.02 or more may, without making an arrest, request that such person submit to a preliminary breath test for alcohol concentration to be administered by the officer. The results of any test administered under this section may be introduced into evidence in a court for any relevant purpose. Failure to submit to the test shall not constitute a violation of this chapter. Evidence of a failure to submit to a preliminary breath test shall not be admissible in court in any prosecution under this subdivision, except for the purpose of determining whether the officer had probable cause to arrest the person. The provisions of this section shall not limit the introduction of any other competent evidence bearing on the question of whether a person charged with violating RSA 265:82, I(a) or RSA 265:82-a, I was under the influence of intoxicating liquor or any controlled drug. Nothing contained in this section shall be construed to prevent or require a subsequent test pursuant to RSA 265:84. The police officer requesting the test shall advise orally the person to be tested that his or her failure to take the test or his or her taking of the test shall not be construed to prevent or require a subsequent test pursuant to RSA 265:84. The results of the test shall be furnished immediately to the person tested by the police officer administering the test and in writing, if requested.
II. No device may be used to give a chemical test under the provisions of this section unless it has been approved as to type and make by the department of safety.
III. The commissioner of the department of safety shall adopt rules, pursuant to RSA 541-A, relative to methods and procedures for evaluation and approval of preliminary breath test devices.
Source. 1983, 291:1, I; 373:22. 1989, 353:22. 1993, 48:14. 1995, 310:181. 1997, 158:6. 2001, 44:1. 2003, 57:2; 319:96, eff. Jan. 1, 2004.
