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Software Hiccup Could Reopen Hundreds Of DWI Cases

Deborah Brown

Every year, police officers who operate breathalyzer equipment have to get re-certified through an online course. 

Over the last year and a half, a software error re-certified about 110 officers who may not have been given the entire test.

  Because a breathalyzer test is only admissible evidence in court if it is used by a certified operator, these botched “Intoxalyzer 5000” certifications could throw the outcomes of hundreds of DWI cases into question.

The error doesn’t necessarily mean that every DWI case involving those officers will now be overturned. But it does mean that those cases are likely to be brought under scrutiny.

In a pleading on Friday at Strafford County Superior Court, Defense Attorney John Durkin asked the state to expedite release of all 110 officers’ names. “These suspensions can be 90 days, 180 days, 2 years or longer in some circumstances,” he says, “so there are any number of people suffering the consequences of these erroneous suspensions that need relief.”

Instead, on May 15, the Attorney General’s office sent letters to County Attorneys and police departments whose officers were affected. Assistant Attorney Jane Young says the letters suggested prosecutors delay trials involving breathalyzer tests by those officers.

So far, only 11 certification errors have been confirmed. In those cases, police chiefs and their prosecutors have been asked to alert defendants. Young says as other errors are confirmed, the process will continue.

But defense attorneys say the information should be made public. Exeter attorney Ryan Russman’s firm defends upwards of 200 DUI and DWI cases each year. “The state,” he says, “are the ones who should be responsible for identifying those cases and making sure they do justice.” Not police chiefs and their prosecutors.

It’s unclear how much litigation this software hiccup will ultimately bring about. Many individuals convicted with these officers’ breathalyzer tests may seek to have the offense removed from their criminal records. Alan Cronheim is. At the very least, president of the NH Association of Criminal Defense Lawyers, Alan Cronheim says, he says -- he’ll be calling his clients.

They could be suffering a suspension right now,” he says. “They could have pled to a charge based on information they believed to be reliable which it turns out is not reliable.”

Other questions are yet to be answered, too. Like what caused the testing anomaly, and whether more incomplete tests in this state, or in other states -- have gone unnoticed.

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