It looks like the New Hampshire Department of Safety is once again going to try to prevent DWI suspects from double-checking its work. This morning the Concord Monitor reported that the Department will, once again, try to convince legislators to remove one more protection against false evidence. If they succeed, people charged with DWI will lose an opportunity not only to cast doubt on the evidence against them, but also to establish their innocence.
New Hampshire uses a machine called the Intoxilyzer 5000 to test breath samples of people arrested for DWI. The machine is far from perfect, but one of its better features is that it provides a suspect with a tube containing a sample of his or her breath. This sample can then be taken to an independent laboratory for testing by an independent device, one not controlled and operated by the same government that will be responsible for any criminal prosecution that follows. In other words, the Intoxilyzer 5000 permits a DWI suspect to double-check the state’s work. Unfortunately, the Intoxilyzer 5000 is the only breath testing machine on the market that provides a suspect with a sample.
In what I consider to be a jaw-dropping statement, the director of the State Police lab that maintains all of the Intoxilyzer 5000 machines in New Hampshire, is reported to have said that the motive for changing the law is “bad science.” Bad science? Bad science! For twenty years the State Police have been telling suspects, lawyers, judges and the public that the Intoxilyzer 5000 was accurate and that its results were practically beyond reproach. I have long argued that this was not the case. Now the government agrees. We have long known that approximately 15% of people have their breath tested independently, and approximately 5% show an inconsistency that casts doubt on the government’s result. A 5% error rate is simply too high. If Tiger Woods missed 5% of his shots, he would be picking up stray golf balls at some driving range in Omaha.
The government’s position seems to be this: Trust us, and this time we will try really, really hard to get it right. Sorry, but no thank you. The government has been telling us for years that it is already getting it right. Now they tell us that the old way is no longer good enough. Which is it? And what about all those cases in which you testified that the Intoxilyzer 5000 results were beyond reproach?
Drunk driving is a serious problem and a very real danger. But so is the risk of wrongful prosecution and conviction. Our streets will not be made the slightest bit safer by removing one of the few opportunities a DWI suspect has to challenge the questionable science behind breath testing. The New Hampshire legislature should not short-change its citizens by removing this protection against wrongful DWI prosecution.