skip navigationOfficial State of NH Site
space
DOS Logo DOS Banner
space
space

 
Compendium
Superior Court Cases

administrative hearings roomIssues Involving Chemical Tests Taken in ALS Cases
  1. 20-Minute Observation Period
  2. Certification/Accuracy of Intoxilyzer 5000
  3. Delay in Obtaining Breath Test Results
  4. Miscellaneous Issues Involving Breath Tests
  5. Independent Tests/Second Samples
  6. Blood Tests
I. 20-Minute Observation Period
 
Harnish v. Dept. of Safety, 213-2011-CV-00215, (Mangones, 11/15/11), AFFIRMED
ALS breath test. Challenged waiting period because machine and test subject in different parts of the room and officer prepared machine during wait by entering information, inserting the test ticket, and inserting the sample capture tubes. Court held that administrative rule governing the wait does not require operator to train eyes continuously on subject. Also, test record verified that there were no violations and officer signed the test record.
Kimball v. Beecher, 219-2010-CV-00105, (Brown, 6/10/10), REVERSED
ALS breath test. A video of the 20-minute waiting period before the test revealed that the officer moved around the room, turned his back and did not observe Petitioner uninterrupted for 20 minutes before test. This violated Saf-C 6302.02(b) governing the administration of breath tests. Court reversed holding that these were not momentary violations as defined by prior cases which upheld breaks in the 20 minute wait.
Parrington v. Director, 09-E-0220, (Groff, 12/7/09), AFFIRMED
ALS challenging jurisdiction. Officer signed ALS form before presenting it to justice of the peace. Also challenged validity of 20 minute observation period before breath test because officer talked on phone during the period. Jurisdiction proper because officer required only to appear before JP and swear to the form, not sign the form in front of JP. Although at times officer turned back to Petitioner during wait, nothing in regulation requires officer to stare at test subject the entire time.
Cronin v. Beecher, 07-E-0461, (Rockingham, McHugh (01-23-08) AFFIRMED
Petitioner appealed, alleging it was error for the Hearings Examiner to find there was a validly administered test because he burped during the twenty-minute waiting period, and it was not restarted. Hearings Examiner found the burp was a dry burp and nothing entered the mouth. Also, there was 0.02 agreement between the samples corroborating the finding. The Court accepted the hearings examiner's finding. The motion to reconsider was denied on 03-05-08.
Vasil v. Beecher, 05-E-177, (Grafton, Burling 10/04/05) AFFIRMED
Petitioner appealed, alleging it was error for the Hearings Examiner to find there was a validly administered test because he licked his lips during the twenty-minute waiting period, and it was not restarted. The Court rejected this because the rule, Saf-C 6302.02, does not prohibit licking of lips and there was no evidence of anything entering the mouth. Petitioner provided no transcript and the Court adopted the Hearings Examiner's findings.
Aiken v. Beecher, 04-E-161, (Merrimack, Fitzgerald, 11/22/04) AFFIRMED
Arrested for DWI; advised of ALS rights, Petitioner agreed to submit to a breath test, results of .16. Petitioner challenges the police officer's report that states the observation period began at "approximately 0211 hours" and began the test "at 0231 hours" Petitioner questions the actual start time because of the word "approximately". Hearings Examiner determined based on the police officer's testimony that the observation period was conducted in compliance with the rules. COURT finds that such a determination is not clearly unlawful unreasonable in the light of evidence presented.
Duggan v. Beecher, 04-E-167, (Belknap, Smukler, 10/25/04) AFFIRMED
Arrested for DWI; advised of ALS rights; Petitioner agreed to submit to breath test; results of .15; Petitioner claimed the police officer did not observe him for the mandatory 20-min. period prior to the test as the officer's documentation reflects "Officer agreed that there is an apparent discrepancy, but attributed it to his taking of the start and completion times from different sources-his watch and the intoxilyzer-the printout results state … 22 minutes … The Hearings Examiner credited the police officer's testimony. COURT held: "The court should not disturb such a finding unless the finding lacks sufficient support in the record." AFFIRMED
Barca v. Beecher, 04-E-010, (Strafford, Mohl, 04-07-04) AFFIRMED
Arrested for DWI; informed of ALS rights; test results .011; Petitioner claimed the officer failed to properly observe him during the 20 minute observation period. Court held: "There is no requirement in He-P 2207.03 that the ceritfied operator continuously observe the individual to be tested for 20 minutes, never turning away until the end of the observation period." The purpose of the observation period is "to ensure the integrity of the sample." … (NOTE: See cross-reference to Section 9, IV, miscellaneous issues involving breath test)
Kafkoulas v. Commissioner of Safety, 02-E-216, (SD Hillsborough, Galway, 1010/02) AFFIRMED
Arrested for DWI; advised petitioner of ALS rights; petitioner agreed to submit to breath test; results of .13 and .14; petitioner claimed the 20-minute observation period was not properly followed because the state failed to establish a full 20-minute observation period "prior to testing" none of the times reflect the seconds involved. The Court finds "that the conclusions reached by the Hearing Officer are supported by the evidence …"
Hall v. Beecher, 01-E-334, (SD Hillsborough, Galway, 10/15/01) AFFIRMED
Petitioner claimed the officer did not observe him for the mandatory 20-minute period prior to the test. The officer testified that by his watch there was a 20-minute observation period, petitioner argued that his watch was not synchronized with the internal clock of the Intoxilyzer.Court held: using his watch did not constitute a disqualifying act. (NOTE: cross-reference Section 10, I sworn report; Section 9, II certification/accuracy of Intoxilyzer 5000)
Hathorn v. Beecher, 01-E-184, (ND Hillsborough, Lynn, 8/17/01) AFFIRMED
Arrested for DWI, advised plaintiff of ALS rights; petitioner agreed to submit to breath test; petitioner claimed that the arresting officer signed the intoxilyzer certification form before the twenty minute observation period began; court held: … "that does not make the test results inadmissible"; "the officer testified that he was in the room with petitioner throughout the 20-minute period, … had petitioner under his observation during this time and that nothing occurred which would have compromised the test."
Dunn v. Beecher, 00-E-231, (SD Hillsborough, Hampsey, 12/4/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .17; plaintiff claimed that 20-minute period was not properly followed because she was biting her nails and because second observation period was NOT conducted after machine failed to produce a valid sample; court held that "… the petitioner claimed she was biting her nails. However, Moushegian testified that he did not recall her doing so. In any event, the examiner found that the test was properly conducted"; court further held that "The manual promulgated by the commissioner of health and human services does not require an additional waiting period after an 'invalid sample' reading. Therefore, the Court finds and rules that the examiner's decision that the test was properly conducted was not clearly unlawful or unreasonable evidence".
Dyer v. Beecher, 00-E-159, (SD Hillsborough, Hollman, 8/4/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .20; plaintiff claimed that 20-minute observation period was not properly followed because second observation period was NOT conducted after machine failed to produce a valid sample; court held that "The purpose of the observation period is to ensure the integrity of the breath sample. Moushegian testified that he did not observe petitioner do anything which might have affected the integrity of the sample … The fact that petitioner blew into the machine two to three times before the valid samples were captured is not the equivalent of vomiting or belching, acts which could reintroduce alcohol into the airway from the esophagus and thus affect the integrity of the sample". (NOTE: cross-reference to Section I of grounds for stop and Section I of probable cause)
Christman v. Beecher, 99-E-258, (SD Hillsborough, Brennan, 3/13/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .10; plaintiff claimed that 20-minute observation period was not properly followed; officer testified that waiting period started at 12:10 a.m. and ended at 12:30 a.m., using the clock on the wall; Intoxilyzer printout indicates testing was completed at 12:32 a.m., making it impossible for 20-minute observation period to be properly administered; "… despite any apparent discrepancy between the internal intoxilyzer clock and the clock on the wall, 'all that matters is that the 20-minute waiting period was in fact given' … Thus, the examiner properly gave the weight to the officer's testimony regarding the twenty-minute waiting period which she found appropriate". (NOTE: cross-reference to illegal detention section)
Diehl v. Beecher, 98-E-621, (Rockingham, Abramson, 1/29/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .15; plaintiff claimed that officer should not have started 20-minute observation period over again after plaintiff belched and then again after plaintiff put hands in mouth; court held that "Lorenz was trained to restart the observation period if the subject belches or places his hands in his mouth, and Diehl's failure to follow his instructions two times should not benefit Diehl … His decision was not arbitrary, and obtaining an accurate breath sample is in both parties' best interests. Therefore, the Court finds Lorenz appropriately restarted the observation period after Diehl disobeyed his instructions not to belch or place his hands in his mouth".
Ladd v. Beecher, 96-E-144, (SD Hillsborough, Hampsey, 8/13/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .24; plaintiff claimed that officer failed to continuously observe him during the 20-minute observation period; officer gave walk-and-turn test which meant face or mouth was not visible to officer when he was walking away from him; court held that "because the officer could, during that period, still see the back of the petitioner's body, it is not unreasonable to conclude that the officer was able to observe the petitioner sufficiently to notice if the petitioner placed something in his mouth or vomited, regurgitated or belched".
Monahan v. Turner, 94-E-317, (Merrimack, Smukler, 1/25/95) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .13; plaintiff claimed that officer failed to continuously observe her during the 20-minute observation period; officer filled out some basic information on the arrest sheet during that period and keyed in some information on the breath machine but testified that plaintiff was always within his line of vision; court held that "obviously, no 20-minute observation by one person can be completely continuous. Human beings must blink their eyes, if nothing else"; "while Officer Nichols' center of vision was momentarily directed at a place other than the petitioner's face, his eyes were moving continuously from the form or the keyboard back to the petitioner's face. Moreover, even when the officer's center of vision was momentarily directed at the form or the keyboard, the petitioner remained in his field of vision". (NOTE: this was very detailed, well-written opinion!)
DiPaola v. Turner, 94-E-351, (ND Hillsborough, Sullivan, 10/14/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .09; plaintiff had burped during first 20-minute observation period and was told if it happened again, would be deemed a refusal; successfully completed second 20-minute observation period; plaintiff claimed he burped during second observation period but did not tell officer because he did not want to be deemed a refusal; court did not find plaintiff's testimony credible and found that observation period was properly followed. (NOTE: cross-reference to Section I of probable cause and Section IV, below)
Kirker v. Turner, 94-E-38, (Cheshire, Mangones, 9/28/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .09; plaintiff claimed that 20-minute observation period was not complied with as it was only 19 minutes long; officer indicated that he used wrist watch to start the observation period and that the time of the first test was based upon the Intoxilyzer's internal clock, which he was not using; court determined that "the testing officer afforded plaintiff the twenty minutes called for in the regulations". (NOTE: cross-reference to Section VI of procedural issues involving ALS cases)
Burbank v. Turner, 94-E-304, (ND Hillsborough, Sullivan, 9/19/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .13; plaintiff claimed that wrong observation time was noted on the test ticket; officer noticed the clerical error and corrected it at a later time; court held that "the fact that the operator when he wrote down the time of the observation period began wrote down the wrong time does not make the test inadmissible where the court finds based on the evidence presented that the proper observation period was observed". (NOTE: very detailed analysis of facts in this written opinion and cites several cases; also cross-reference to section involving jurisdictional issues)
Collins v. Turner, 94-E-159-B, (SD Hillsborough, Dalianis, 7/20/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .10; officer observed plaintiff for approximately three minutes without telling him then explained 20-minute observation period and watched him for 20 minutes; plaintiff claimed that initial three minutes of unannounced observation so tainted the procedure as to violate RSA 265:85 IV; court held that there is no requirement that the operator inform the subject of the observation prior to its start; "even assuming, arguendo, that the defendant's interpretation is correct, however, the officer conducting the breath test observed the defendant for over twenty minutes after so informing the defendant". (NOTE: cross-reference to actual physical control section)
Woodbury v. Turner, 94-E-124, (ND Hillsborough, Conboy, 6/28/94) REVERSED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .19; observation period on test ticket indicated 2050; test taken at 3:11 AM, indicating an observation period of over six hours; officer indicated that he must have transposed the numbers but had no idea when the actual 20-minute period started; court held that test was NOT performed in accordance with the regulations and could not be considered as evidence.
Douglas v. Turner, 94-E-151-B, (SD Hillsborough, Dalianis, 6/22/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .12; plaintiff claimed that 20-minute observation period was not properly conducted as he experienced a reflux of fluid from his stomach to his throat during that period; officer had explained the observation period to plaintiff and half way through, plaintiff convinced officer that he must use bathroom; officer stood three or four feet behind plaintiff as he used urinal and observed no body movements indicative of belching; court held that "he heard no noises suggestive of belching. The petitioner did not mention the claimed rise of fluid to his throat. The Court is not persuaded that a physiological event sufficient to alter the breath test results occurred".
Stratton v. Turner, 94-E-20-B, (SD Hillsborough, Arnold, 3/29/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .16; observation period on test ticket indicated that it started at 1:38 AM; test done at 2:30 AM; officer indicated that time period of 1:38 AM was incorrect as he always commences the observation period after Miranda warnings have been read, which in this case was done at 1:58 AM; court found officer's testimony credible; "the petitioner, moreover, does not suggest that the required observation period was complied with but only that because of the noted time discrepancy that the officer's credibility is in doubt and the test results suspect". (NOTE: cross-reference to Section V, below)
Devost v. Turner, 93-E-674, (Merrimack, McGuire, 3/14/94) REVERSED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .12; plaintiff informed officer she had burped during the observation period (testimony was that she indicated this 19 minutes into the observation period); officer did not notice anything so continued with test; court held that "under the circumstances, where petitioner had been cooperative and showed no signs of attempting to delay the test, the officer's conclusion, based on his non-observance of signs of a burp, was not warranted. The officer should have at least given petitioner the benefit of the doubt and begun another 20-minute waiting period".
Makris v. Turner, 93-E-446, (Merrimack, Arnold, 9/29/93) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .13; plaintiff claimed that observation period was not properly conducted by officer; officer stated that she used wristwatch to observe plaintiff and observed him for a total of 23 minutes; since Intoxilyzer clock was not used, there would be a discrepancy in times; "the petitioner offered no evidence contradicting the trooper's testimony that the requisite 20-minute period had been observed. The only conclusion the evidence supports is that Officer McDonald's watch and the Intoxilyzer's digital clock were set at different times - not that Trooper Krieger failed to observe the petitioner for the required 20-minute period". (NOTE: cross-reference to Section IV, below)
back to top
II. Certification/Accuracy of Intoxilyzer 5000
Koch v. Beecher, 06-E-0009, (Sullivan, Houran, 05/04/06) AFFIRMED
The Petitioner asserted that the Trooper's failure to advise under RSA265:92-a was fatal to the suspension. The Court found the record supported the HE's determination that the Petitioner's decision [not to take a test] was not influenced by the Trooper's failure to advise. Petitioner also asserted the Trooper lacked reasonable grounds regarding operation and that his failure to establish the procedure for FSTs rendered the evidence of intoxication insufficient. The Court ruled that sufficient testimony and evidence was presented at hearing and the HE's determination that reasonable grounds existed to believe Petitioner was operating under the influence was neither unjust or unreasonable, nor did it constitute an error of law.
Haghighi v. Beecher, 05-E-225, (Strafford, Fauver, 11/29/05) AFFIRMED
Arrested for DWI and agreed to test. Petitioner complained that hearing was not scheduled within 20 days and the instrument certification was improper and the simulator stock solution was not traced to the certification. In a detailed opinion, the Court found no prejudice to Petitioner caused by the delay in scheduling and found that the evidence was sufficient to support HE's findings on certification and simulator solution.
Slott v. Beecher, 05-E-250, (Rockingham, Morrill, 09/28/05) AFFIRMED
Petitioner arrested for DWI in the early a.m. of 08-04-04 and appealed, alleging that the certification for the Intox 5000 expired at the beginning of 8/04/04, the date of the test. The Hearings Examiner found the certification expired at the end of the day, midnight and upheld the suspension. The Court found the Hearings Examiner's determination correct as a matter of law because there are 24 hours in a day.
McCrea v. Beecher, 05-E-011, (Belknap, Smukler, 05/04/05) AFFIRMED
Aarrested for Boating While Intoxicated; Petitioner claimed that Respondent erred by admitting the PBT results because there was no evidence of proper PBT certification. Court held that PBT results are admissible because contrary to Petitioner's assertions the record showed the PBT had been calibrated and certified. (See also Part I, Informing of ALS Rights)
Aiken v. Beecher, 04-E-161, (Merrimack, Fitzgerald, 11/22/04) AFFIRMED
Police officer observed erratic driving; approached Petitioner and detected an odor of alcohol; red, glassy eyes & slow speech; refused PBT; failed FST's; arrested for DWI; took the breath test; tested at .16 resulting in a 2-year suspension. Appeal: Intoxilyzer machine not certified. COURT held: He-P 2207.03 (h) "… unless the machine is working properly, the tests could not have been completed.) (See cross-reference to Section 9, I, 20-minute observation period.)
O'Connell v. Beecher, 03-E-219, (ND Hillsborough, Mangones, 09/22/03) AFFIRMED
Arrested for DWI; Petitioner claimed that the detection of acetone by both the machine during the test and by the independent laboratory test made the test result unreliable; Court held: There was sufficient evidence in the record of the machine's certification and proper operation to support the Hearings Examiner's finding. (See cross-reference to Section 9, III delay in Obtaining Breath Test Results; Section 8, VI Miscellaneous)
Johnson v. Beecher, 02-E-50, (Merrimack, McGuire, 7/1/02) AFFIRMED
Arrested for DWI; informed of ALS rights; breath test results .09; petitioner argues that because of margin of error, actual results could be below .08. Held: While it is possible that the margin of error for the Intoxilyzer 5000 may have affected the results of the test so that he was under the legal limit, it is also possible that … was higher than .09. (NOTE: cross-reference Section 10, I sworn report)
Breitmaier v. Beecher, 1-E-201 (Strafford, Houran, 1/3/02) AFFIRMED
Arrested for DWI; advised of ALS rights, plaintiff agreed to submit to breath test, results of .09; plaintiff claimed that Officer Stephens' testimony to the effect that the machine had a 20% error rate built into the Intoxilyzer machine "such that the reported value could be higher or lower by a factor of 20%"; Hearings Examiner noted that "this Examiner is free to accept or reject evidence presented during the hearing" and that he had "attended training concerning the Intoxilyzer 5000 devise [sic] which has confirmed the [0.005] error rate information; citing RSA 541-A:33 VI, court finds "no error of law in the decision of the Hearings Examiner".
Hall v. Beecher, 01-E-334, (SD Hillsborough, Galway, 10/15/01) AFFIRMED
Petitioner claimed that the Intoxilyzer certification indicates a six-month certification period; it also disclosed four one-half hours of in-field service; petitioner argued that since there was no new certification following the repairs, the machine cannot meet the preventive maintenance equipment requirements of the regulation; Court finds that the Hearings Examiner's acceptance of the certified machine results is neither unlawful nor unreasonable.(NOTE: cross-reference Section 10, Sworn report; Section 9, 20-minute observation period)
Moran v. Beecher, 00-E-268, (Merrimack, McGuire, 2/20/01) AFFIRMED
Petitioner took breath test; alleged simulator not properly approved; not in proper working order pursuant to He-P 2207.02 (b); Court held: the make and model were referred to by an internal agency code and the supervisor's signature on the preventative maintenance check list certified that all prerequisites for instrument testing, including the simulator, have been complied with. Independent proof beyond that certification is not required … (NOTE: cross-reference Section 10,I Sworn report; Section 9,V Independent tests; Section 8, I Informing of ALS rights)
Frechette v. Beecher, 00-E-131, (SD Hillsborough, Hollman, 7/31/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .09; plaintiff claimed that, because the Intoxilyzer 5000 has a margin of error of plus or minus 0.015, a result of .09 indicates that his BAC was actually between .075 and 0.10; citing Hamilton v. Turner, below; court held that "… Hamilton is not conclusive of the machine's error rate because on reconsideration the Court found that any error would result in a BAC below the statutory minimum for suspension. Here, an error rate of plus or minus 0.015 could result in a BAC below the threshold, while an error rate of plus or minus 0.005 could not. Following Hamilton, the Department of Safety amended its rules to adjust for machine error".
Somero v. Beecher, 00-E-51, (SD Hillsborough, Hampsey, 6/12/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; plaintiff claimed that it was error for Hearings Examiner to allow officer to testify as an expert on the Intoxilyzer since he had not been certified as an Intoxilyzer operator for almost five hears; court held that "At no time during the hearing did the examiner indicate the officer was testifying as an expert. Rather, the officer merely testified regarding his personal knowledge of the operation of the Intoxilyzer, based upon his previous experience". (NOTE: cross-reference to Section V of refusal)
Hunt v. Beecher, 00-E-120, (Rockingham, Abramson, 5/10/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; plaintiff claimed that officer relied upon obsolete Operator's Manual when conducting the test, so the results should be inadmissible; "… it appears from a review of the 52-page transcript and the memoranda that it was the petitioner who relied upon the outdated manual and that the officer was, in fact, depending on the current manual".
Vincent v. Beecher, 99-E-506, ( SD Hillsborough, 4/12/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; an attempt to capture a breath sample failed and was reported as an invalid sample; following that attempt, the Intoxilyzer completed an external standard reference check; two valid samples subsequently captured; plaintiff claimed that the external standard reference check should have been administered between the two valid samples; "The Court agrees with the hearings examiner's opinion that the purpose of the external check is to verify the accuracy of the instrument with a known alcohol concentration … and not to make a chronological comparison among the first sample, the external check and the second sample … the administrative rules articulate no purpose requiring that the external check be performed in between the two valid samples".
Almuteb v. Beecher, 99-E-404, (Manias, 1/5/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .09; plaintiff alleged that the error factor in the Intoxilyzer 5000 could have made him lower than a .09, citing Hamilton v. Turner, below; court held that "… the petitioner maintains that the machine's error rate is plus or minus 0.015. In support of this contention, the petitioner relies only on the Hamilton case. However, Hamilton is not conclusive of the machine's error rate because on reconsideration the Court found that any error would result in a BAC below the statutory minimum … Moreover, following Hamilton, the Department of Safety amended its rules to adjust for machine error … Based on these rules which reflect some margin of error in the Intoxilyzer 5000 and the petitioner's BAC of 0.09 … The court finds no error of law in the decision of the Hearings Examiner". (NOTE: same judge who issued the Hamilton decision!
Ringer v. Beecher, 98-E-186, (Grafton, Smith, 4/15/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .23; court held that it was reasonable for Hearings Examiner "… to conclude that the blood alcohol test results accurately reflected the state of the petitioner's blood at the time the test was taken. Subsequent revelations, in a criminal DWI trial, of possible deficiencies in the chain of custody or in the testing procedure that generated the .23 blood alcohol level finding, are legally immaterial to this Court's assessment of the administrative findings presently under review".
Webb v. Beecher, 98-E-254, (Merrimack, Manias, 10/21/98) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .14; plaintiff alleged that one of the three internal standard reference check readings deviated from the assigned target value, in violation of He-P 2207.03(g), because the internal reference checks are reported to only two decimal places; court held that "… the Intoxilyzer machine is programmed so that it will not allow a subject sample to be taken if the internal reference check deviates more than 5% from the assigned value … Although the internal reference check is reported only to two decimal places, the machine is capable of calculating to the third digit, as evidenced by the December 16, 1997 Intoxilyzer 5000 Certification form. Accordingly, it was reasonable for the Hearing Examiner to conclude that the actual concentration was 0.095 or greater, even though the reported value was reported to only two decimal places pursuant to He-P 2207.04(a)"; plaintiff made same argument reference simulator solution temperature; court held that "while it is possible that Trooper Dustin rounded down from an actual temperature of 34.21C or higher, he testified that the machine would shut down automatically if the solution exceeded the standard temperature by more than 0.2C".
Leblanc v. Beecher, 98-E-55, (Strafford, Mohl, 7/8/98) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .10; plaintiff alleged that there was insufficient evidence to establish that the police officer was a certified Intoxilyzer operator on the date of the test; "Officer Archibald testified that he was a certified Intoxilyzer operator and he exhibited his recertification card dated October 17, 1997 to the hearing officer. New Hampshire Code of Administrative Rules He-P 2207.07 provides that re-certification as a breath test operator is valid for twelve (12) months. This Intoxilyzer test occurred approximately two months after Officer Archibald was recertified. Accordingly, the hearing examiner's determination that Officer Archibald administered a valid Intoxilyzer test was not unreasonable". (NOTE: cross-reference to Section II of grounds for stop)
Nash v. Beecher, 97-E-157, (Rockingham, Coffey, 7/22/97) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .09; plaintiff alleged that error factor in machine of .015 as alleged in Asmussen decision and Hamilton v. Turner, cited below, could have meant that he was under a .08; court stated that "Judge Brennan's order is supported by an order by Judge Manias where the arresting trooper testifies that the error rate for the machine is .015. The trooper does not specify whether the machine testified about is an Intoxilyzer 5000. The court cannot determine upon what basis the trooper testifies as to the error rate. In Judge Manias' order, an error rate of .015 is not necessary. An error rate of merely .002 or .001 would drop the alcohol concentration below the legal limit. Accordingly, the court finds that the specific error rate was not adequately examined to be relied upon here. The hearings examiner relied on the agency rules establishing an error rate of .01. Applying that error rate to Mr. Nash's .09 concentration, he is at the legal limit of .08". (NOTE: cross-reference to Section I of reasonable grounds for stop and illegal detention section)
Allison v. Beecher, 96-E-393, (SD Hillsborough, Hollman, 2/5/97) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; police officer testified that he had examined the certification for the machine and that it was properly certified, however, he did not have the actual document with him at the hearing; plaintiff argued that this was not sufficient to show actual certification; "in this case, Officer Lavoie testified that he personally examined the certification documents prior to administering the test and that the certification was dated shortly before the test was given and properly filled out … the hearings examiner found this testimony credible and was entitled to rely upon it in concluding that the machine was properly certified at the time of the plaintiff's test".
Gillam v. Beecher, 95-E-100, (Grafton, Smith, 1/16/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; plaintiff claimed that certification of machine expired the date of arrest; court held that certification was valid; plaintiff also claimed that State failed to show that the machine had been approved by the Director of Public Health and that the samples were in conformance with manufacturer specifications; court held that "petitioner's arguments seek to place a far greater burden upon the State then that required under either RSA 265:85 or RSA 265:90"; in addition, court stated that preventive maintenance certification form itself is evidence of approval because those checks are only required for APPROVED instruments; court also stated that samples collected were in conformance with manufacturer specifications since officer was certified "according to the methods and procedures taught when he was certified by the director of the division of public health services, the entity responsible for promulgating the procedures to be employed in accordance with manufacturer specifications".
Czernich v. Beecher, 95-E-92, (Rockingham, Brennan, 4/26/95) REVERSED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; sole issue on appeal was failure of State to produce certain documents pursuant to RSA 265:90, although testimony was accepted in lieu of documents; court determined that "testing questions were at issue and not all of the documents listed under RSA 265:90, II-IV were produced", citing Saf-C 2804.05.
Martin v. Turner, 95-E-29, (ND Hillsborough, Arnold, 3/3/95) AFFIRMED
arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .25; "while the plaintiff challenges Officer McAllister's certification as an intoxilyzer operator due to the officer's inability to provide at trial his certification card for the period in question, the officer testified that he had been a certified intoxilyzer operator since December of 1993, that his certification had continued in effect since that date and provided a copy of his recertification card dated December of 1994". (NOTE: cross-reference to Section II of grounds for stop; Section I of probable cause and Section I of refusal)
Thibeault v. Turner, 94-E- 300, (Merrimack, Manias, 2/9/95) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .15; issue as to what information needs to be provided to show that test was "properly administered"; court indicated that officer properly advised plaintiff of ALS rights, which is one requirement; operator indicated that he was certified to administer breathalyzer tests, another requirement; forensic breath test supervisor testified that the Intoxilyzer had passed a preventive maintenance check on April 1, 1994, another requirement; 20-minute observation period was followed, another requirement and the proper procedure was followed in getting a test result; sufficient information was presented.
Agrella v. Turner, 93-E-683, (Merrimack, Manias, 2/11/94) REVERSED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .14; machine due to be recertified one month after plaintiff's arrest; when it was recertified, notation on repair form indicated "captured samples analyzed too high"; court held that "the defendant offered no evidence to show that the machine was not similarly out of adjustment when plaintiff was tested, other than the test result itself. The test result incorporates certain internal self-tests, but the Court has no evidence that these internal self-checks were reliable in light of the machine's subsequently discovered problem". (NOTE: cross-reference to Section I of probable cause)
Hamilton v. Turner, 93-E-213, (Merrimack, Manias, 7/30/93) REVERSED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .10 (when the law was .10 or higher); plaintiff claimed that error factor in machine of plus/minus .005% could have meant that he was under a .10; court agreed and stated that State could not prove by preponderance of the evidence that the test "disclosed an alcohol concentration of 0.10 or more", as required by statute. (NOTE: there was lengthy Motion To Reconsider filed along with an Objection filed by plaintiff; court wrote another written opinion; Attorney General's Office declined to take an appeal; result is that all .08 breath test results are returned to police departments without action!)
back to top
III. Delay in Obtaining Breath Test Results
White v. Beecher, 05-E-067,(Grafton.,Houran,05/04/05) AFFIRMED
Petitioner claims that the blood alcohol level at the time of operation was relevant and dispositive on the issue of whether a valid test showed a result over the legal limit. The examiner ruled it was beyond the scope. COURT HELD: This issue is not properly within the scope of the review of an administrative hearing. See RSA 265:91-b. . .The Hearing Examiner's holding was not unreasonable or unlawful.
Fletcher v. Beecher, 04-E-0067(Graf,Burling,09/08/04)AFFIRMED
Arrested for DWI; failed FST's; tested above .08;bloodshot eyes, slurred speech, unsteady, odor of alcohol, admitted to drinking. Petitioner argued that the state failed to establish a time of operation, it was legally impossible for a BAC "while driving" to be determined. COURT held: RSA 265:89 "to allow a test exhibiting a BAC of [.08] or greater, taken within a reasonable time…, to be prima facie evidence… see State v. Taylor, 132 NH 314 (1989) directly on point.
O'Connell v. Beecher, 03-E-219, (ND Hillsborough, Mangones, 09/22/03) AFFIRMED
Arrested for DWI; Petitioner claimed the breath test result was unreliable because the test was done approximately 2 3/4 hours after her arrest at the hospital citing Harlan. Court held:Harlan does not apply to these facts. The state delayed the testing because it was first thought to be a felony serious injury case and assumed the risk of the delay. (See cross-reference to Section 9, II certification/accuracy of Intoxilyzer 5000; Section 8, VI Miscellaneous)
Carter v. Beecher, 01-E-449, (Merrimack, Fitzgerald, 2/28/02) AFFIRMED
Plaintiff was arrested for DWI; he had bloodshot and glassy eyes, slurred speech and signs of impairment during the field sobriety tests; plaintiff refused to take a test; later recanted but was denied by Officer Kimball because of the time that had elapsed and DEEMED a refusal; court held the Hearings Examiner's decision. (See cross-reference to Section 2 Issues regarding actual physical control of MV)
Ward v. Beecher, 00-E-361, (Merrimack, Fitzgerald, 2/13/01) AFFIRMED
Petitioner claims that the breath test result was not reasonably related to the time of operation because the test was done approximately three hours after the operation. HELD: This issue is not properly within the scope of the review of an administrative hearing. See RSA 265:91-b … While the testing was performed approximately three hours after his arrest, under the facts of this case it was not unreasonable for the Hearing Examiner to conclude that the testing was performed in a proper manner despite the delay. (Note: cross-reference to Section I, III issues involving "way"; Section 5, jurisdictional issue involving ALS cases; Section 8, I Informing of ALS rights)
Penna v. Beecher, 96-E-24, (Merrimack, Arnold, 4/29/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .09; plaintiff claimed that because of built-in error factor of Intoxilyzer coupled with absorption rate, his BAC would have been less than .08 at the time he drove 50 minutes earlier; court held that hearings examiner recognized that this was a "close case" but given the alteration of the alcohol plaintiff was alleged to have consumed, the BAC result at time he drove was speculation; court stated that BAC test result is not conclusive regarding intoxication but should be considered with other evidence, citing State v. Taylor.
Myers v. Beecher, 95-E-366, (Merrimack, Arnold, 3/14/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to test; plaintiff claimed that test did not fairly represent his BAC at the time he was driving as test was given two hours and ten minutes later; court held that the delay was not unreasonable, citing State v. Taylor.
back to top
IV. Miscellaneous Issues Involving Breath Tests
Theodore v. Beecher, 07-E-0162, (ND Hillsborough, Abramson, 10/12/07) AFFIRMED
Petitioner claimed that the finding of validly administered test was unreasonable and unlawful because the original test record was fraudulently altered. Expert handwriting analysis was introduced into evidence in support of this. Court ruled that the evidence supported the finding because The Officer testified that there was no alteration and her testimony was credited. The Court ruled that this is the province of the hearings examiner and was neither unreasonable or unlawful. (See also Section 2, Issues Involving Actual Physical Control)
Abbott v. Beecher, 07-E-200, (Merrimack, Lynn, 08/15/05) REMANDED
Petitioner appealed alleging that it was fatal to the State's case that the hearings examiner made a finding that there had been a refusal when the case was actually a breath test. Petitionee argued that it was just a scrivener's error. Court ruled that it is reasonable to expect that a hearings examiner's report will accurately reflect the facts of a given case and provide a proper legal basis for decision. Court found that petitioner is entitled to a clarification, but did not reverse or dismiss. Court allowed Petitioner leave for a further review without filing a new appeal.
Andrewchuk v. Beecher, 03-E-453, (Merrimack, Fitzgerald, 04-12-04) AFFIRMED
Arrested for DWI; advised of ALS rights, Petitioner challenged the fact that the police officer did not have him remove his dentures prior to a breath test. He-P 2207 does not require police to have subjects remove dentures. The Court finds that it was reasonable and lawful for the Hearings Examiner to find that the breath test was properly administered. (NOTE: cross-reference Section 4, Anonymous Information.)
Barca v. Beecher, 04-E-010, (Strafford, Mohl, 04-07-04) AFFIRMED
Arrested for DWI; advised of ALS rights, Petitioner claimed the Hearings Examiner erred in finding that Petitioner did not refuse the test. Court held: … the Hearings Examiner could reasonably have found that the Petitioner previously refused testing because he did not understand the ALS form but in this case, upon understanding the form after a different officer read it to him, agreed to testing. AFFIRMED (NOTE: see cross-reference to Section 9, I, 20-minute observation)
Erickson v. Beecher, 03-E-200, (Strafford, Fauver, 03/05/04) VACATED
Arrested for DWI; advised of ALS rights; Petitioner agreed to submit to breath test; under 21 years of age Petitioner tested .03; Petitioner claimed the evidence does not support the conclusion that … above the legal limit of .02 as the officer testified to 0.15 margin of error. Court held: "The only evidence of the margin of error in the test results was testified to by the arresting officer. Considering the margin of error of .015, mathematically, there would be a result of less than .02."
Guertin v. Beecher, 03-E-77, (Belknap, Smukler, 07/10/03) AFFIRMED
Arrested for DWI; informed of ALS rights; breath test results .12;Petitioner claimed the results should be excluded because he coughed during the waiting period and that his cough could have contaminated the sample. Court held:"… coughing is not included as a prohibited activity in the rule pursuant to He-P 2207.03; rather the rule refers to belching, regurgitation and vomiting…Because coughing involves alveolar air, which is the precise medium that is tested by the Intoxilyzer machine, the examiner did not act unreasonably…" (NOTE:cross-reference to Section 8, I Informing of ALS rights.)
Moses v. Beecher, 02-E-517, (ND Hillsborough, Brennan, 04/09/03) AFFIRMED
Involved in an accident; Petitioner refused to submit to FST's; arrested for DWI and transported to Police Department; informed of implied consent rights then Petitioner agreed to take breath test; results 0.12; Petitioner alleges it was improper to do breath test after refusing to do FST's. Court held: police officer did not ask Petitioner to take a breath test until after he was arrested and informed of his ALS rights; consequently, the breath test results was properly admitted.
Gonyer v. Beecher, 02-E-504, (ND Hillsborough, Brennan, 03/07/03) AFFIRMED
Arrested for DWI; advised of ALS rights; Petitioner refused to submit to a chemical test; Petitioner argued sufficiency of the evidence to support the Hearings Examiner's findings.Court held:"There is sufficient evidence for the hearings officer to … conclude that the Petitioner refused the test;" It is not uncommon for their to be inconsistencies in recollection and testimony among witnesses … the hearings officer was in the position to evaluate the testimony and make the findings; Petitioner has not met his burden of proof.
Karagianis v. Beecher, 01-E-297, (Merrimack, Fitzgerald, 11/14/01) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; test results of .11; plaintiff claims test results should be excluded because he had oral surgery the day before and that his sutures were oozing, there was blood in his mouth at the time of test which may have affected the results of the test; Trooper did not observe any blood in spit trap; court held that … "the Hearings Examiner's conclusion that the test was properly administered is supported by record evidence …" (NOTE: cross-reference Section 1, probable cause)
Edmonds v. Beecher, 01-E-264, (SD Hillsborough, Groff, 6/01) AFFIRMED
Arrested for DWI;petitioner provided the first of two breath samples, and asked the officer to tell him the results of the first test; officer refused and told him the test was not complete until two samples were provided, at which time the intoxilyzer would print the results; petitioner refused until he was told the results of the first test; officer DEEMED him a refusal. "Neither the administrative rules nor the statute require or even suggest that the operator notify the subject of the results of the first test; Court finds: "… the examiner's finding that the petitioner refused to submit to the breath test is not erroneous as a matter of law, unlawful or unreasonable."
Drew v. Beecher, 00-E-85, (Merrimack, Fitzgerald, 3/2/01) AFFIRMED
Arrested for DWI; advised of ALS rights, plaintiff agreed to submit to breath test;petitioner claimed that the result of his BAC test should not have been admitted into evidence because the State offered no testimony that the sample capture tubes had been provided to the petitioner; COURT held: the State had no burden of proof as to the delivery of … breath sample. Thus, the State's failure to present evidence on this issue was insufficient to render … BAC test result inadmissible at this ALS hearing, and the Hearings Examiner committed no legal error by admitting the test result into evidence."
Wardell v. Beecher, 00-E-284, (Merrimack, Fitzgerald, 2/26/01) AFFIRMED
Arrested for DWI; petitioner agreed to a BAC test petitioner claimed the results should be excluded because the State offered no testimony that the breath samples were captured and provided to petitioner; he did not claim he didn't receive the sample capture tubes, only that the officer did not testify that he did; Court held: the "Trooper's failure to testify to these matters was insufficient to render the BAC test result inadmissible at his ALS hearing, and the Hearings Examiner committed no legal error by admitting the test result into evidence." (NOTE: cross-reference Section 7, II Field Sobriety Tests)
Vachon v. Beecher, 00-E-181, (Belknap, Perkins, 1/4/01) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; test results of .09; plaintiff claimed that results should be excluded because he has acid reflux syndrome, which may have affected the results of the breath test; court held that "It should be noted in passing that the physical condition GERD was never brought to the attention of Trooper Dade on the night of the arrest, thereby depriving Trooper Dade of considering an alternative test. While not specifically noted by the hearings officer, it is clear that he rejected the testimony of Dr. Sampson. The basis of Dr. Sampson's opinions were based on possibility and assumptions. It was not specific to this particular test or result. The Court clearly cannot find that the hearings officer was incorrect to reject that evidence".
O'Leary v. Beecher, 99-E-291, (Rockingham, Abramson, 8/3/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; test results of .19; plaintiff claimed that results should be excluded because he had chewing tobacco in mouth at time of stop, which may have affected the results of the breath test; "The Court notes that the arresting officer merely testified that he detected an odor on the petitioner's breath at the time of the stop which could 'possibly' be attributed to chewing tobacco. This is the only evidence that the chewing tobacco might have been in his mouth at the time the test was administered. The Court finds this insufficient to establish the test was not properly administered. There was no other evidence in the record to support the mere assertion by the petitioner that he did, in fact, have chewing tobacco in his mouth".
Howson v. Beecher, 95-E-424, (SD Hillsborough, Hollman, 1/12/96) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .11; plaintiff claimed that results should be excluded because she did not get furnished with her results immediately but instead, standard operating procedure of police department dictated that results would be given to booking officer to be forwarded to plaintiff upon her release; she never indicated that she did not receive results; court held that "the hearing officer reasonably found that a standard operating procedure was in place where the testing operator would give the test results and the sample capture tubes to the booking officer, who would then give these items to the defendant upon her release. Accordingly, the hearing officer concluded that, based upon Officer Sullivan's testimony, Ms. Howson received the required items …"; court also held that it was reasonable to require plaintiff to submit some evidence that she did not receive the results since this is a civil not a criminal matter; finally, court concluded that plaintiff's arguments were not within scope of ALS review in any event! (NOTE: cross-reference to Section IV of procedural issues involving ALS cases)
Gimbert v. Beecher, 95-E-226-B, (SD Hillsborough, Hampsey, 10/6/95) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .11; tubes containing preserved samples were not properly marked and identified as required by He-P 2207.09 (b)(1); plaintiff argued that the violation of that rule should have resulted in suppression of the breath test result; court stated the violation of the rule "… did not affect the chain of custody nor the testing procedure. The Court finds that there was substantial compliance with the requirements set forth in the statute as the violation of procedure was minor and technical … It is significant to note that the outside bag containing the tubes was appropriately sealed, marked and intact. The two tubes within the bag were surrounded by the ticket from the Intoxilyzer 5000 that contained the sample number and the petitioner's name".
DiPaola v. Turner, 94-E-351, (ND Hillsborough, Sullivan, 10/14/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .09; plaintiff claimed that ALS form indicated illegal alcohol level of .10 or more and that form was NOT changed to .08 or more until after he submitted to breath test; court held that plaintiff's testimony was not credible and that "the form was changed at the time the officer went over the form with the petitioner before he consented to take the test". (officer was still using old form) (NOTE: cross-reference to Section I of probable cause)
Campbell v. Turner, 94-E-155-B, (SD Hillsborough, Hampsey, 6/20/94) AFFIRMED
arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .16; plaintiff argued that test result should be discounted or otherwise set aside as he suffers from asthma and took some medication just prior to being stopped by officer; court held that "unfortunately, there was no medical or other expert evidence submitted by plaintiff to support this allegation".
Makris v. Turner, 93-E-446, (Merrimack, Arnold, 9/29/93) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .13; plaintiff claimed that he was not furnished with copy of Intoxilyzer test record, immediately after taking the test, in violation of RSA 265:84; court held that "to the extent that petitioner argues that receipt of the results was not timely, the Court disagrees. The petitioner was furnished with the test results by receipt of the pink copy of the ALS form shortly after his completion of the test and immediately following the officer's completion and acknowledgment of the form before a justice of the peace". (NOTE: cross-reference to Section I, above)
back to top
V. Independent Tests/Second Samples
Crepeau v. Beecher, 09-E-0201, (Nadeau, 9/10/09), AFFIRMED
ALS appeal. Petitioner unable to obtain independent test of second breath sample due to officer's labeling error. Independent lab refused to test. Petitioner's ability to obtain independent test not frustrated because no indication that he contacted the State to obtain the correct labeling information or that officer refused to provide it.
Donmoyer v. Beecher, 08-E-0462, (Hillsborough South, Barry, 03/20/09) REVERSED
ALS based on .09 Intoxilyzer test result. At hearing, Officer testified during cross that Intoxilyzer machine has a possible deviation of .015. Defense expert corroborated this error rate. Moreover, the officer erred by failing to replace the sample capture tube after the first test which resulted in an independent test of the tubes with 1 tube having a result of .00 and one a result of .18. The Court, applying the agreed upon error rate of .015, concluded that the test result could have been either a .075 or a .105, and therefore, was not .08 or more. The Court also concluded that the difference in the sample capture tubes was "…a matter of pure speculation." The Court held that the proper remedy if the case had been tried in Superior Court would have been suppression of the test result from evidence. Consequently, the applicable remedy since the case was an administrative hearing was to vacate the Hearings Examiner's decision.
Milliken v. Beecher, 07-E-0100 (Belknap, McHugh 7/19/07) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. Petitioner alleged that a duplicate sample of blood was not submitted to him on request. He was unable to obtain blood sample prior to hearing. Hearings Examiner gave him the chance to test sample after the hearing and he declined. Court ruled he had no reason to complain about second sample. See also Part 7 Section I (Probable Cause)
Normand v. Beecher, 03-E-286, (ND Hillsborough, Conboy, 09/16/03) AFFIRMED
Aarrested for DWI, advised of ALS rights, Petitioner submitted to a breath test; officer provided Petitioner with the captured samples … they were not, however, labeled as required. Petitioner claimed that the test results should be excluded and that he was denied an independent test. Court held: Test results were not excluded because the failure to label the samples tubes did not affect the performance of the breath test.and that Petitioner was not denied a second sample because there was no evidence that the identity of the tubes as his was at issue.
Tozier v. Beecher, 03-E-68, (Strafford, Lewis, 8/01/03) AFFIRMED
Arrested for DWI; adivsed of ALS rights, Petitioner submitted to a breath test resulting .22;…officer provided Petitioner with the captured samples that the State had preserved … they were not, however, labeled or numbered as required…Petitioner claimed the State violated the express regulatory requirements…of the State's breath test results. Court held: "the failure to strictly follow regulations related to the numbering or labeling of samples, not to the method of actual testing done pursuant to RSA 265:85 IV, does not require wholesale exlusion of the breath test results; … the failure that occurred here did not result in the inability of Petitioner … to present evidence to show that problems needed to be considered … the possibility of inexact or trainted readings … goes to the weight to be given to the results." … the Examiner acted with a reasonable basis in deciding as he did.
McCarron v. Beecher, 02-E-81, (Rockingham, Hollman, 6/19/02) AFFIRMED
Aarrested for DWI; informed of ALS rights;breath test results .14 and .15 reported value; independent test results .04 and .16; cooberates the second sample but not the first. Hearings Examiner credited state results; petitioner alleges Hearings Examiner did not give proper weight to independent test results. Held: "The Examiner correctly stated … that the differences in results go to the weight given to the evidence presented … the Examiner ultimately gave more weight to the State breath test results and thereby upheld the suspension."
Moran v. Beecher, 00-E-268, (Merrimack, McGuire, 2/20/01) AFFIRMED
State breath test results 0.12; Independent lab results 0.16; did not corroborate state's results. Hearings Examiner gave greater weight to states test and upheld suspension; petitioner alleged can not use state's results and must dismiss because test not corroborated by independent lab. Court held: petitioner has misinterpreted the agency rule; the rule provides that "[w]hen the result of the breath test is not corroborated … further evaluation is required in order to determine the weight to be given to the reported value of either the approved instrument or the independent lab." Rule He-P 2207.17 (c) … NOTE: cross-reference Section 10, I Sworn report; Section 9, II Certification;Section 8, I Informing of ALS rights)
Bourgault v. Beecher, 00-E-9, (SD Hillsborough, Hollman, 4/26/00) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .09; plaintiff claimed that results should be inadmissible because he was not properly advised of his right to have an independent test conducted; court held that "Petitioner asked for a blood test at the scene. The officer replied that he would have the opportunity to take a breath test at the police station. Petitioner consented to a breath test after the officer advised him of his ALS rights, which included a provision detailing the right to obtain independent testing. Petitioner did not at that time, nor at any time after his statement at the scene, request an independent blood test or inquire as to the procedures for obtaining one. In addition, petitioner was released less than an hour-and-a-half after his arrest, at which time he was free to obtain his own blood test", citing State v. Dunsmore.
Alward v. Beecher, 99-E-147, (Belknap, Smukler, 10/18/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .10; plaintiff had independent analysis done of samples, yielding results of .14 or .15; plaintiff alleged that breath test results should be inadmissible because deviation of between 0.04 and 0.05 falls outside range where test results are deemed corroborated, pursuant to public health rules; court held that "there was record evidence to support either test result. The hearing officer accepted the initial lower result. The record contains evidence about the procedures employed in administering the test, and more specifically, the maintenance and other records of the Intoxilyxer 5000 used to administer the initial test. That evidence was sufficient to support the hearing officer's finding", citing Appeal of Salem Regional Med. Ctr.
Foss v. Beecher, 98-E-409, (Merrimack, Manias, 3/3/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; plaintiff alleged that the breath test results should be inadmissible because police officer failed to afford him an opportunity to request an additional test before giving him the breath test; court held that "As part of the implied consent form read to appellant and acknowledged by him, the appellant was informed that he had a right to an additional test and that upon his request he would be given an opportunity for such an additional test … appellant did not request an additional test before taking the breath test; court further held that "Appellant's subsequent expression of displeasure with his breath test results after the test was done … and his statement that he would go to the Concord Hospital to take a blood test, does not change the fact that he had already been afforded and had declined an opportunity to request an additional test … Petitioner did not request any assistance from the police in obtaining an additional test …".
Cohen v. Beecher, 98-E-179, (SD Hillsborough, Dalianis, 9/30/98) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .09; plaintiff had independent analysis done of samples; plaintiff alleged that improper weight was given to independent test and an extrapolated blood alcohol concentration calculation; "The hearings examiner found a properly administered blood alcohol test showed an alcohol concentration of 0.09, and that this result was corroborated by the petitioner's analysis of a captured sample. The hearings examiner also considered the extrapolated calculation and, based on the assumptions and hypothetical evidence presented, properly gave it the weight he found appropriate". (NOTE: cross-reference to Section I of probable cause)
Arel v. Turner, 95-E-243, (ND Hillsborough, Barry, J., 9/18/95) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .11; plaintiff had independent analysis done of samples; analyst noted that officer failed to identify lot number of tubes, name of individual tested, the date of collection and the number in sequence, pursuant to regulation (He-P 2207.09); no deviation in samples; court held that "… there is no provision in the regulation for suppression of the sample; and the Court further finds that although the Administrative Rule was not complied with, it had no effect on the validity of the independent test conducted by Dr. Frederic D. Leipziger".
Warburton v. Turner, E-94-167, (Belknap, O'Neill, J., 1/27/95) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .14; plaintiff had independent analysis done of samples, rendering a deviation of 21% in one of the samples; court held that "it thus appears in reference to validity and/or reliability that the analysis performed by Eastern Analytical, Inc. on the preserved samples rendered results that are contrary to the acceptable "margin of error" established by Eastern Analytical, Inc.". (NOTE: this is a difficult opinion to comprehend although it does support theory that deviation is only of consequence when it occurs in "the reported value". (See also Jennings v. Turner, 94-E-9, (Sullivan, O'Neil, W., 4/13/94); terrible written opinion but it also upholds test case in which there is a deviation)
Stratton v. Turner, 94-E-20-B, (SD Hillsborough, Arnold, 3/29/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to breath test; results of .16; plaintiff went to hospital upon his release and had independent blood test; results of .04; court held that "while accepting the general premise that blood tests more accurately measure the level of alcohol concentration in a person's system than do breath tests, the petitioner has not proved the accuracy of the petitioner's blood test results"; court based this upon the fact that the laboratory technician who performed the independent analysis was not present, the laboratory supervisor who did testify could only testify to general procedures, and technician who drew plaintiff's blood could not identify plaintiff as the party she drew the blood from. (NOTE: cross-reference to Section I, above)
back to top
VI. Blood Tests
Letourneau v. Dept. of Safety, 219-2012-CV-00059, (Lewis, 4/16/12), AFFIRMED
Expert testimony presented by both sides concerning breath test result that were different. Not unreasonable for hearings Examiner to conclude that State's expert presented better position. Sufficient evidence in the record for such conclusion. Also, no error for Director of Motor Vehicles to deny Director's review without considering each individual point raised by Petitioner.
Karwocki v. Bailey, 217-2010-CV-00707, (Smukler, 1/11/11), AFFIRMED
ALS breath test with deviation in the independent breath sample tested. Test had a reported value of .12. Independent lab test on the sample capture tubes were .17 and .16, beyond the maximum allowable deviation under Saf-C 6305(b)(3). Petitioner argued test not properly conducted due to deviation. Court held since Petitioner did not provide hearing transcript, it would consider only evidence on record: Intoxilyzer test result; independent test result; and a copy of Saf-C 6305 in deciding if decision reasonable. Court presumed Hearings Examiner had sufficient record evidence to support how evidence was weighed and upheld suspension as lawful and reasonable.
Donovan v. Beecher, 07-E-0503 (Merrimack, Conboy 02/25/08) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. Petitioner alleged that ALS form was not timely submitted after receipt and time began when department received the blood test results. Police Department received it on 09-12-08. Officer testified he received it on 09-18-08, swore to it and hand delivered it on 09-24-08 the fifth working day after the swearing. Saf-C 2803.03 requires that ALS form be submitted within 5 working days. Court ruled that five working days began when officer was notified of results, and not when police department was.
Milliken v. Beecher, 07-E-0100 (Belknap, McHugh 7/19/07) AFFIRMED
Petitioner arrested for DWI and ALS suspension was sustained after hearing. Petitioner alleged that a duplicate sample of blood was not submitted to him on request. He was unable to obtain blood sample prior to hearing. Hearings Examiner gave him the chance to test sample after the hearing and he declined. Court ruled he had no reason to complain about second sample. See also Part 7 Section I (Probable Cause)
Marquis v. Beecher, 06-E-18, (Coos, Vaughan, 06/14/06) AFFIRMED
Arrested for DWI, agreed to blood test; DSMV 426 was completed and the officer's signature was notarized. Section V completed by officer upon receipt of results; the form was notarized as complete but officer did not sign at that time. Petitioner argues that constitutes an unsworn report; therefore the Department did not have jurisdiction. The Court agreed with the State in that paragraph V is the only portion of the form that must be sworn to, certifying the officer's request and that the respondent refused or agreed to testing. Petitioner asserts there was insufficient evidence to support H.E.'s finding of reasonable grounds; based on the officer's testimony as well as certifying scientist's testimony that he/she did not personally perform the blood testing and did not testify as to the details of the rounding procedures. The Court found that the H.E. had sufficient credible evidence before him.
Hudson v. Beecher, 06-E-67,(Rockingham, McHugh, 04/20/06) AFFIRMED
Arrested for DWI; advised of ALS rights; petitioner challenges the admissibility of blood test results because of several violations of the Saf-C Rules regarding the transmittal slip, the use of non-alcoholic cleanser, timekeeping and identification of parties who took and tested the blood. Court held: "…Any alleged violations in the taking of the blood fall into the de minimis category and do not warrant a review of the hearings examiner's findings and rulings. Affirmed by NH Supreme Court.
Carignan v. Beecher, 02-E-229, (Strafford, Mohl, 4/22/03) AFFIRMED
Reported value of .08 achieved by rounding up actual test result of .078 in accordance with He-P 2202.13. Petitioner challenged validity of the rule which provided that a test result of .078 (which is below the ALS minimum) be reported as a .08, the legal minimum, resulting in an ALS suspension. HELD: DHHS had clear statutory authority RSA 265:85 to adopt rule. "The rounding up process in He-P 2202.13 (a) (1) is a method used … and is binding upon the Hearings Examiner RSA 541-A:22 II and is both reasonable and lawful. The Court distinguished the application of the rule in a civil ALS proceeding from a criminal case; also, distinguished Hamilton decision relating to blood tests. NOTE: This Court Order contains a well-reasoned in depth analysis and discussion of the issue; it must be reviewed in toto to be fully appreciated.
Nagle v. Beecher, 02-E-165, (Belknap, Smukler, 1/8/03) AFFIRMED
Trooper … received a copy of the blood test results and immediately telephoned Petitioner's attorney; orally informing him of the results …; some time later, the trooper again advised petitioner's attorney of the results and also informed him that the blood sample was still available because he had ordered further testing …, the trooper personally served a copy of the results of the test to the attorney at his office. At the hearing, Petitioner moved to dismiss because he had not been notified in writing within 48 hours by certified mail as per RSA 265:84; finding no material prejudice, the hearing examiner admitted the blood test results. Court held: … "the court will not set aside the respondent's decision for a procedural error unless the complaining party shows material prejudice … failure to allege prejudice is fatal to the petitioner's claim."
Nagle v. Beecher, 02-E-165, (Belknap, Smukler, 1/8/03) AFFIRMED
Trooper … received a copy of the blood test results and immediately telephoned Petitioner's attorney; orally informing him of the results …; some time later, the trooper again advised petitioner's attorney of the results and also informed him that the blood sample was still available because he had ordered further testing …, the trooper personally served a copy of the results of the test to the attorney at his office. At the hearing, Petitioner moved to dismiss because he had not been notified in writing within 48 hours by certified mail as per RSA 265:84; finding no material prejudice, the hearing examiner admitted the blood test results. Court held: … "the court will not set aside the respondent's decision for a procedural error unless the complaining party shows material prejudice … failure to allege prejudice is fatal to the petitioner's claim."
Zimmerman v. Beecher, 01-E-82, (Rockingham, McHugh, 4/18/01) AFFIRMED
Arrested for DWI,petitioner submitted to a breath test; results of .11;petitioner claims that he requested a blood test and the police officer did not afford him the opportunity; "afford him an opportunity" means … that the police may not unreasonably detain an arrested person so that no such test could be conducted; petitioner "was expeditiously booked … the breath test was reasonably conducted and he was released … and could have gone to a local hospital, … to have a blood test taken. Court finds: that the hearings examiners decision to find that there was no violation of the ALS requirements concerning chemical tests was both just and reasonable.
Seluk v. Beecher, 00-E-641, (Rockingham, Abramson, 3/19/01) AFFIRMED
Arrested for DWI; advised of ALS rights; petitioner challenges the propriety of the methods used to seal the blood specimens for testing; argued that without proper sealing and labeling of a blood specimen, there is no clear chain of custody of the sample and no clear proof that the sample actually came from the accused; Court held: "it is well-settled that when the rule violation is minor and not necessary to the procedural administration of the chemical test, the rule violation will only affect the weight accorded to the test results, not their admissibility."
Carbone v. Beecher, 00-E-273, (Rockingham, Galway, 9/15/00) AFFIRMED
Plaintiff involved in accident with serious bodily injury; arrested for DWI; blood sample taken pursuant to RSA 265:93; results of .19; plaintiff argued that only blood samples taken pursuant to RSA 265:84 can form the basis for an administrative license suspension; court held that "The express language of RSA 265:84 includes blood tests taken pursuant to RSA 265:93 … The essential difference between RSA 265:84 and RSA 265:93 is that the latter provides independent authorization methods to withdraw blood in certain cases when a license suspension is not at issue"; plaintiff also argued that he did not sustain serious bodily injury; court held that "… when Officer Hollins arrived at the scene of the accident, the petitioner was bleeding and being treated by emergency personnel. The testimony further showed that the petitioner was in the hospital for several hours, in and out of consciousness, and required eleven stitches for facial injuries", sufficient showing of serious bodily injury.
Dauphin v. Beecher, 99-E-190, (Belknap, Smukler, 11/15/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to blood test; results of .08; plaintiff alleged that results should not be admissible because certifying scientist testified in lieu of persons who conducted tests; court held that "The DMV rules clearly allow the testimony of the certifying scientist when there is an issue regarding the administration of the testing. The evidence here indicates that only one of the three tests was actually completed and this test was checked 'okay' for quality control three times. Even if the previous two test attempts were problematic, the State did not rely on them as they did not yield any results"; plaintiff further alleged that 45 minutes elapsed between the time he was arrested and the time blood was drawn, and that his BAC may have been higher, as a result; court held that "… the State is not required to prove the defendant's BAC at the precise time he was actually operating the vehicle. Here, there is nothing unreasonable about the 45-minute delay between the petitioner's operation of his car and the blood test. That delay occurred because the breath test machine at the Laconia Police Department was not operable". (NOTE: cross-reference to Section I of procedural issues involving ALS cases)
Gerbino v. Beecher, 99-E-82, (Strafford, Nadeau, 7/28/99) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to blood test; test results indicated that container was sealed improperly, in violation of public health rules; plaintiff alleged that blood test should be inadmissible since not performed in accordance with "methods prescribed by the commissioner of the department of health and human services", pursuant to RSA 265:85, IV; court stated that, under prior law, the exclusion in Paragraph IV did not require compliance with the regulations that govern test tube sealing methods, only to standards for testing the blood, citing State v. Paul; "… the court finds that because the current Paragraph IV is substantively identical to its predecessor statute, case law decided under the predecessor statute is binding in this action. As such, the method of sealing the test tube containing the petitioner's blood is not governed by the exclusionary provisions of RSA 265:85, IV".
Daly v. Beecher, 98-E-290, (Rockingham, Brennan, 8/27/98) REVERSED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to blood test; results of .18; technician who drew blood used distilled water to cleanse the skin; plaintiff alleged that distilled water was not sufficient to clean skin for the purpose of drawing blood; court stated that "… Dr. Novak's testimony is insufficient to even arguably demonstrate that distilled water effectively cleans skin for purposes of drawing blood to determine alcohol concentration … the only evidence before the hearings officer regarding whether distilled water is a safe and effective cleanser for cleaning skin for the purpose of drawing blood specimens is Dr. Howard's statement that it is not effective"; court concluded "it is important to note that the Court is not finding that distilled water is insufficient as a matter of law". (NOTE: this case does NOT appear to rule out distilled water as an effective cleanser and may be distinguishable on its facts)
Bushinger v. Turner, 94-E-110, (Carroll, Fauver, 3/20/95) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to blood test; results of .13; plaintiff did not request analyst to be present at the de novo hearing; "the Court finds that as the requests were specifically made as to both prior hearings, there exists an affirmative duty to request the chemist's appearance at the Superior Court de novo proceeding. Failure to make the request in the context of this case is deemed a waiver and the results of the blood alcohol test are admissible as conclusive".
Powers v. Turner, 94-E-102, (ND Hillsborough, Lynn, 5/12/94) AFFIRMED
Arrested for DWI; advised plaintiff of ALS rights; plaintiff agreed to submit to blood test; results of .23; plaintiff did not request analyst to be present at the de novo appeal and defendant alleged that, pursuant to RSA 265:90, he was entitled to conclusive presumption, as in the criminal case; Court agreed and relied upon the test.
back to top
   
  New Hampshire Department of Safety | 33 Hazen Drive | Concord, NH 03305
TDD Access: Relay NH 1-800-735-2964
space
nh NH.gov | Privacy Policy | Accessibility Policy