- Associated Press - Monday, June 22, 2015

CONCORD, N.H. (AP) - The New Hampshire attorney general’s office has notified criminal defense lawyers in the state that certain drunken driving convictions, possibly dozens, have been jeopardized because of an invalid exam given to officers who administered breath tests in those cases.

Deputy Attorney General Ann Rice said in a letter that the office was notified in March that an exam taken by officers for re-certification to administer breath tests was “flawed.”

She said it took three months to get a list from the vendor of those officers who took the test before the office could determine the problem affected cases involving at least 64 officers over the last 18 months.

Rice sent the letter Friday to the president of the New Hampshire Criminal Defense Lawyers Association and the New Hampshire Public Defenders office. It explained that because of an “anomaly,” the officers were allowed to bypass the second half of the online Intoxilyzer exam and receive a passing score.

She stressed that the office does not believe the invalid test scores are a reflection on the officers’ credibility, and said the state is no longer using that exam or doing business with the vendor.

The 64 officers include members of the state police, the state Fish and Game Department and some police departments, including Concord and Newbury.

Attorney Ted Lothstein, who practices in Concord and Keene, told The Associated Press that one of his clients had his driver’s license suspension revoked Monday because of the exam issue. The state Department of Safety issued a letter saying his client’s suspension was being withdrawn and cited the attorney general’s findings as the underlying factor.

Lothstein said he was copied on the attorney general’s letter because he had been asking for information since a prosecutor told him last month that a DUI conviction of one of his clients might be reversed.

The attorney general’s letter listed the officers who took the flawed exam and the number of positive breath tests ascribed to them. The total number of positive results came to 110; a Concord officer had the highest number at 23.

Still Lothstein said he is skeptical of the figures, noting that one Keene police officer had only one case listed.

“You’ve got officers from a fairly large town with only one case? What’s on that table makes no sense,” he said.

Rice did not immediately return a call for comment Monday.


This story has been corrected to say attorney general’s office suggests possibly dozens of cases jeopardized, not hundreds.

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