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State releases list of 150 more officers who may have failed certification to conduct DWI breath test

By JAMES A. KIMBLE
Union Leader Correspondent

July 02. 2015 11:15AM


BRENTWOOD – The state has released the names of roughly 150 more police officers who may not have passed a state-mandated test required for administering breath tests during drunken driving arrests.

A Department of Safety worker discovered problems earlier this year with how an outside vendor conducted re-certification exams of police officers that use the Intoxilyzer 5000.

Police officers around the state were caught by surprise to learn they may not have passed the exam. So far, the errors have cast at least 101 cases into question.

Defense lawyer John Durkin, who has been leading an effort to make information about the discrepancies public, said that a larger number of cases may have to be either thrown out of court or bargained down to lesser offenses.

"There is a very clear evidentiary threshold which is an officer must be certified," to administer a breath test, Durkin said on Thursday.

Deputy Attorney General Ann Rice said in a memo that the Department of Safety has no way of determining who received a passing score when an officer had been given credit for a question he or she was not entitled to.

Despite the anomaly, "the Department of Safety views these officers’ passing scores, and re-certification, as valid," Rice said in the memo. The state is disclosing the names, citing their constitutional obligation to disclose evidence that could be favorable to the defense.

The state discovered two problems with the recertification process: some officers were allowed to skip a portion of the exam and receive a passing grade.

Rice said there is also a "remote possibility" that officers named in the latest list were erroneously credited for a question, which resulted in them receiving a passing grade of 12.  

The latest list released made public this week does not outline how many arrests each officer made while their certification was in question.

Joe Plaia, a former prosecutor for state police and Rochester police, said that he believes the state is doing the right thing with disclosing the names of the officers given the problems with the exam.

He noted that breath tests aren’t the only piece of evidence used in drunken driving cases.

"You don't need the breath test to win," said Plaia, who recently returned to criminal defense work. "It doesn’t hinder any other part of the DWI case."

Plaia said the second pool of officers with a questionable passing grade should fall under the same scrutiny as those who were allowed to skip a portion of the exam. He said he understands why the Department of Safety disagrees, citing the adversarial nature of litigation.

"They almost have to take that position rather than just concede," Plaia said.

Durkin said his pursuit of the information through a right-to-know lawsuit was not to embarrass the officers affected by the faulty testing. The New Hampshire Association of Criminal Defense Lawyers filed the lawsuit so that people who may have been erroneously convicted would have information to use in their cases.

Durkin said people will often represent themselves in drunken driving cases. He said defense lawyers and police prosecutors have been trying to sort out how to resolve the cases as they come to light.

"I think everyone is looking to figure out what do we do if we have an affected case," he said.

Durkin said police prosecutors have been left to decide how to resolve the cases without much direction from the state.

"When confronted most of these guys are doing the right thing by either withdrawing the administrative suspension or filing a motion to vacate the conviction," he said.

Durkin said the NHACD is seeking other information through its right-to-know lawsuit about the test and how it is scored, but that information may be gleaned from the state as the individual drunken driving cases are litigated in court.

jkimble@newstote.com





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