If you have been arrested in New Hampshire for DWI, you will most probably be charged with two separate offenses: (1) driving under the influence of alcohol (DUI) otherwise known as driving while intoxicated (DWI); and (2) the per se law of driving with 0.08% or higher blood alcohol concentration (BAC).
New Hampshire law enforcement agencies utilize a breath machine – the Intoxylizer 5000EN – to obtain a suspected drunk driver's BAC. As for the per se offense, the only evidence of the crime is the machine, and the result it produces. If the result is .08% or higher, the State argues that the defendant is guilty of DUI. In other words, if the Defendant's BAC is .08% or greater, he is presumed guilty – unless he/she can prove his innocence.
Intoxylizer 5000EN - from manufacturer's website. The Intoxylizer 5000EN is a machine which is designed to obtain a sample of the subject's breath. The machine uses infrared spectroscopy to evaluate the breath and molecules in it, potentially identifying the presence of alcohol in the breath. The computer program inside the Intoxylizer then multiplies the amount of alcohol in a DUI subject's breath sample 2100 times to get the corresponding blood alcohol concentration (BAC). This calculation is performed based on the assumption that every person has 2100 units of alcohol in his/her blood for every unit of alcohol in his/her breath. This is called the "partition ratio". Unfortunately, this ratio is only an average. Actual partition ratios vary from as low as 900:1 to as high as 3500:1. And, if an individual's partition ratio was different than the assumed 2100:1 partition ratio set by the Intoxylizer, the BAC result will be different. In New Hampshire, the Intoxylizer 5000EN is the only post-arrest breath testing device approved to obtain a sample of the defendant's breath. The Intoxylizer 5000EN captures a second breath sample in a test tube which is provided to you. That "second sample" may then be evaluated by an independent laboratory, of your own choosing and at your own expense. Independently testing the "second sample" is critically important and a valuable tool in assessing the accuracy of the reported value of the Intoxylizer 5000EN. The machine is measuring breath and using inferential science to correlate that to your blood alcohol concentration. An experienced DUI lawyer knows the machine, its operation protocols and how to best represent you in this situation. There are other factors that may also affect your BAC reading, such as gender, body composition, or being a diabetic. Having a knowledgeable attorney on your side can make all the difference!
The best course of action for any individual accused of DUI or DWI in New Hampshire, is to retain the services of a skilled New Hampshire DUI defense attorney. At Tenn And Tenn, P.A. our New Hampshire Breath Alcohol Test defense attorneys have been certified under the authority of the United States Department of Transportation as Evidentiary Breath Alcohol Technicians qualified to operate the Intoxylizer 5000EN. If you have been charged with driving under the influence, contact us today at 1-888-511-1010 for a free telephone consultation of your DUI defense case.
Click here for information regarding preliminary breath testing in New Hampshire.