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Jun 24, 2015 5:47 PM

NH defense attorneys weigh in on breathalyzer certification, DWI cases

NH1.com

CONCORD - Criminal attorneys are speaking out about the N.H. police certification fiasco.

Specifically, the 64 officers wrongly certified to give breath tests - thanks to a computer glitch.

The main unanswered question?

Will this mistake turn out to be a get out of jail free card for people accused or convicted of drunk driving?

Right now, prosecutors, defense attorneys and police cannot tell you how many arrests and convictions will be vacated or overturned because of the certification glitch in the computer program offered by Research Triangle Institute Corporation - the third-party vendor from North Carolina.

Criminal defense attorney John Moir said all officers - including the 64 on the list - rely on more than just the results of the Intoxilyzer 5000 breath test when they make an arrest.

“The police officers are going to have to go back and rely on the basic ways they always prove DWI - since people started drinking and driving," Moir said. "And, that’s going back to saying how did the person act? How did they drive? How did they do on the physical tests that were done? What did they say? Those are the things that are the bread and butter of DWI."

Moyer said this glitch will only clear cases that rely solely on the breath test.

Right now, he’s looking at his 2013 and 2014 cases to see if any of his clients may be impacted.

Another issue John Durkin, the attorney who filed the “Right-to-Know” lawsuit - said is that the Attorney General is about to release a second list of officers who may be wrongly certified.

"The second group are the officers who they cannot tell one way or another whether they passed or not,” Durkin said. "Our position is - if the state can’t show that they passed - they should not be given the benefit of the doubt.”

Durkin also said he wants more information, including emails from RTI, police and prosecutors, so he and other criminal defense attorneys can get a clearer picture of how this all really happened.

Moving forward, the state will no longer use that computer program to certify officers.

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