sb 0039

CHAPTER 57

SB 39 -FINAL VERSION

AN ACT relative to the results of a preliminary breath test as evidence in court.

SPONSORS: Sen. Flanders, Dist 7; Sen. D'Allesandro, Dist 20; Sen. Below, Dist 5; Rep. Tholl, Coos 2; Rep. Stevens, Carr 7

This bill eliminates the provision that preliminary breath test results may be admissible in evidence for the sole purpose of determining whether the officer had probable cause to arrest the person.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to the results of a preliminary breath test as evidence in court.

Be it Enacted by the Senate and House of Representatives in General Court convened:

57:1 Off Highway Recreational Vehicles; Preliminary Breath Tests. RSA 215-A:11-i is repealed and reenacted to read as follows:

I. Any law enforcement officer, who has been certified by the police standards and training council according to standards for such certification contained in rules adopted by said council pursuant to RSA 541-A, having reasonable grounds to believe that a person has been driving or operating an OHRV while under the influence of intoxicating liquor or controlled drug, or while the person's alcohol concentration was 0.08 or more, or in the case of a person under the age of 21, 0.02 or more may, without making an arrest, request that such person submit to a preliminary breath test for alcohol concentration to be administered by the officer. The results of any test administered under this section may be introduced into evidence in a court for any relevant purpose. Failure to submit to the test shall not constitute a violation of this chapter. Evidence of failure to submit to a preliminary breath test shall not be admissible in court in any prosecution under this chapter, except for the purpose of determining whether the officer had probable course to arrest the person. The provisions of this section shall not limit the introduction of any other competent evidence bearing on the question of whether a person charged with violating RSA 215-A:11 was under the influence of intoxicating liquor or any controlled drug. Nothing contained in this section shall be construed to prevent or require a subsequent test pursuant to RSA 215-A:11-a. The law enforcement officer requesting the test shall advise orally the person to be tested that his or her failure to take the test or his or her taking of the test shall not be construed to prevent or require a subsequent test pursuant to RSA 215-A:11-a. The results of the test shall be furnished immediately to the person tested by the law enforcement officer administering the test and in writing, if requested.

II. No device may be used to give a chemical test under the provisions of this section unless it has been approved as to type and make by the department of health and human services.

III. The commissioner of the department of health and human services shall adopt rules, pursuant to RSA 541-A, relative to methods and procedures for evaluation and approval of preliminary breath test devices.

57:2 Serious Traffic Offenses; Preliminary Breath Test. Amend RSA 265:92-a, I to read as follows:

I. Any police officer, who has been certified by the police standards and training council according to standards for such certification contained in rules adopted by said council pursuant to RSA 541-A, having reasonable grounds to believe that a person has been driving or operating a vehicle on a way while under the influence of intoxicating liquor or controlled drug or while the person's alcohol concentration was 0.08 or more or in the case of a person under the age of 21, 0.02 or more may, without making an arrest, request that such person submit to a preliminary breath test for alcohol concentration to be administered by the officer. The results of [~~this test may be admissible in evidence for the sole purpose of determining whether the officer had probable cause to arrest the person~~] any test administered under this section may be introduced into evidence in a court for any relevant purpose. Failure to submit to the test shall not constitute a violation of this chapter. Evidence of a failure to submit to a preliminary breath test shall not be admissible in court in any prosecution under this subdivision, except for the purpose of determining whether the officer had probable cause to arrest the person. The provisions of this section shall not limit the introduction of any other competent evidence bearing on the question of whether a person charged with violating RSA 265:82, I(a) or RSA 265:82-a, I was under the influence of intoxicating liquor or any controlled drug. Nothing contained in this section shall be construed to prevent or require a subsequent test pursuant to RSA 265:84. The police officer requesting the test shall advise orally the person to be tested that his or her failure to take the test or his or her taking of the test shall not be construed to prevent or require a subsequent test pursuant to RSA 265:84. The results of the test shall be furnished immediately to the person tested by the police officer administering the test and in writing, if requested.

57:3 Boating While Intoxicated; Preliminary Breath Tests. Amend RSA 270:57, I to read as follows:

I. Any authorized agent or any peace officer who has been trained and certified according to standards for such training and certification set by the police standards and training council and contained in rules adopted by the said council pursuant to RSA 541-A, having reasonable grounds to believe that a person has been operating or was in control of a boat upon the public waters of the state while under the influence of intoxicating liquor or controlled drugs or any combination of intoxicating liquor or controlled drugs may, without making an arrest, request that such person submit to a preliminary breath test to be administered by the officer. The results of [~~this test shall not be admissible in evidence by the prosecution, and~~] any test administered under this section may be introduced into evidence in a court for any relevant purpose. Failure to submit to the test shall not constitute a violation of this chapter. Evidence of a failure to submit to a preliminary breath test shall not be admissible in court in any prosecution under this subdivision, except for the purpose of determining whether the officer had probable cause to arrest the person. The provisions of this section shall not limit the introduction of any other competent evidence bearing on the question of whether a person charged with violating RSA 270:48-a, I was under the influence of intoxicating liquor or any controlled drug. Nothing contained in this section shall be construed to prevent or require a subsequent test pursuant to RSA 270:49. The officer requesting the test shall advise the person to be tested that his or her failure to take the test or his or her taking of the test shall not be construed to prevent or require a subsequent test pursuant to RSA 270:49. The results of the test shall be furnished forthwith to the person tested by the officer administering the test.