Revision: May 20, 2016, midnight
\t \t\tSB 379 - VERSION ADOPTED BY BOTH BODIES
03/24/2016 1036s
11May2016... 1774h
2016 SESSION
\t16-2754
\t03/09
SENATE BILL\t379
AN ACT\trelative to additional tests to determine alcohol concentration.
SPONSORS:\tSen. Stiles, Dist 24; Sen. Bradley, Dist 3; Sen. Carson, Dist 14; Sen. Boutin, Dist 16; Rep. Fields, Belk. 4; Rep. Eaton, Ches. 3; Rep. Welch, Rock. 13; Rep. Cushing, Rock. 21; Rep. Parker, Carr. 6
COMMITTEE:\tJudiciary
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ANALYSIS
\tThis modifies provisions allowing a driver who permits a test to determine his or her blood alcohol concentration to obtain an additional test or tests.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
03/24/2016 1036s
11May2016... 1774h\t16-2754
\t03/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to additional tests to determine alcohol concentration.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 Statement of Findings. The general court finds that:
\t\tI. The state of New Hampshire currently uses Intoxilyzer 5000 EN instruments for the purpose of testing the breath alcohol content of individuals who are suspected of driving while impaired.
\t\tII. The Intoxilyzer 5000 EN allows the test administrator to obtain 2 breath samples, which are analyzed by the instrument. After each sample is analyzed, it is then captured (preserved an additional sample). This additional sample is then provided to the person being tested, for independent analysis if the person so choses.
\t\tIII. The New Hampshire supreme court held, in State v. Cornelius, 122 N.H. 925 (1982), that due process required the state to take and preserve an additional breath sample for independent testing.
\t\tIV. In 2010, the legislature sought an opinion from the New Hampshire supreme court as to whether then-pending legislation to eliminate the requirement that an additional breath sample be preserved for independent testing tests would violate due process. In a divided opinion, the majority of the court, in Opinion on the Justices (Eliminating Requirement for Additional Breath Test Samples), 160 N.H. 180 (2010) held that it would. The court noted that while it "recognize[d] that technological advances may well obviate the need to capture and preserve a second breath sample,... no legislative findings have been rendered in that regard." It also observed that "in light of the apparent absence of realistic access to additional testing, we are reluctant to conclude that the proposed breath testing is substantially without risk of error."
\t\tV. The Intoxilyzer 5000 EN has not been manufactured since 2013. Replacement parts are no longer available, including RAM time keeper chips, photo interrupters, IR filters from the same manufacturer, vacuum fluorescent displays, and EPROMs, all of which are critical to the accurate functioning of the testing instrument.
\t\tVI. New Hampshire is the only state in the nation (and only place in the world) that continues to use the Intoxilyzer 5000 EN for preserving an additional sample.
\t\tVII. The models of breath testing instruments currently being manufactured employ a far more technologically sophisticated analytical process. While a properly functioning, calibrated Intoxilyzer 5000 EN produces accurate results, the degree of confidence one can have in the accuracy of the results from one of the newer instruments is substantially enhanced by the more sophisticated analytical process.
\t\tVIII. There are no longer any modern models of breath alcohol instruments that are designed to capture additional breath samples.
\t\tIX. The legislature finds that technological advances and the changes in testing protocols since the Cornelius decision have now obviated the need to capture and preserve a second breath sample, and that the accuracy of the currently available technology substantially eliminates any risk of error.
\t2 Additional Tests to Determine Alcohol Concentration. Amend RSA 265-A:7 to read as follows:
\t265-A:7 Additional Tests.
\t\tI. Any person to whom RSA 265-A:4 is applicable shall have the right at his or her own expense to have [similar] additional tests made by a person of his or her own choosing who is competent to conduct the tests, as determined by the commissioner of the department of safety under RSA 265-A:5, and shall be so informed by the law enforcement officer at the same time as the person is requested to permit a test under the provisions of RSA 265-A:4. The failure or inability of an arrested person to obtain an additional test shall not preclude the admission of any test taken at the direction of a law enforcement officer, authorized agent, or peace officer. Nothing herein shall require the release from custody of the arrested person for the purpose of having such additional test made. [For the purpose of this section:]
\t\t[I.] II. [The] A sample of blood taken pursuant to RSA 265-A:4 shall be of sufficient quantity to allow 2 tests; and the testing laboratory shall retain for a period of 30 days subsequent to the test conducted pursuant to RSA 265-A:4 a quantity of said sample sufficient for another test, which quantity shall be made available to the respondent or his or her counsel upon request.
\t\t[II.] III. [The] A sample [or samples] of breath taken pursuant to [RSA 265-A:4] paragraph I shall be [captured in an appropriate medium approved] analyzed in accordance with rules adopted by the commissioner of the department of safety pursuant to RSA 265-A:5, V[, and shall be sufficient to allow an equivalent additional test for each breath sample taken pursuant to 265-A:4. The captured sample or samples shall be given to the respondent in a manner determined by the commissioner of the department of safety]. A subject who submits to an infrared molecular absorption test at the request of a law enforcement officer shall have the right at his or her own expense to have a blood sample drawn and a blood test made by a person of his or her own choosing who is competent to conduct the tests, as determined by the commissioner of the department of safety under RSA 265-A:5. The person shall be so informed by the law enforcement officer at the same time as the person is requested to permit a test under the provisions of RSA 265-A:4. At that same time the person shall also be provided contact information for individuals and the nearest facilities that make themselves available to draw and test blood. The individuals listed, by virtue of their residence or work location, should have a reasonable probability of performing the blood draw within 2 hours of the initial breath sample having been taken by the police. The failure or inability of an arrested person to obtain an additional test shall not preclude the admission of any test taken at the direction of a law enforcement officer, authorized agent, or peace officer. Nothing in this paragraph shall require the release from custody of the arrested person for the purpose of having such additional test taken, however, an arrested person who remains in custody shall be permitted to have his or her blood drawn by a person who has been determined to be competent by the commissioner of the department of safety under RSA 265-A:5.
\t3 Prerequisites to Tests. Amend RSA 265-A:8, I(a) to read as follows:
\t\t\t(a) Inform the arrested person of his or her right to have [a similar] an additional test or tests of his or her blood made by a person of his or her own choosing;
\t4 Administration of Alcohol Concentration Tests. Amend RSA 265-A:5, I to read as follows:
\t\tI. Only a duly licensed physician, registered nurse, certified physician's assistant, phlebotomist, or qualified medical technician or medical technologist acting at the request of a law enforcement officer, authorized agent, [or] peace officer, or individual seeking a test of his or her own blood may withdraw blood for the purpose of a test required by RSA 265-A:4. Such licensed physician, registered nurse, certified physician's assistant, phlebotomist, or qualified medical technician or medical technologist shall not be liable for damages or otherwise to the person from whom blood is withdrawn for any act performed in connection with such withdrawal provided the physician, registered nurse, physician's assistant, phlebotomist, or qualified medical technician or medical technologist acts with ordinary care.
\t5 Effective Date. This act shall take effect January 1, 2017.