Harden Law Offices

104 Main Street, Lancaster, NH 03584 603.788.2080
2 Cottage Street, Littleton, NH 03561 603.444.2084
199 Heater Road, Lebanon, NH 03766 603.448.3737

Wednesday, March 14, 2012

ALS Hearing

 State of New Hampshire
James H. Hayes Safety Building, 33 Hazen Drive, Concord, NH 03305
HEARING DATE: 02/02/12
HEARING LOCATION: Concord (Video Hearing)
DMV FILE #: Image
DOS HEARING #: 12-1880
Respondent and counsel appeared at the Bureau of Hearings in Concord; Trooper Favreau appeared via video-conference from his residence. Prior to the hearing, counsel objected to the trooper appearing via video, asserting, inter alia, that a video appearance by the trooper would deny the respondent his right to confront witnesses effectively through live cross-examination, and that the hearings examiner would be denied the opportunity to fairly assess the credibility of witnesses. The respondent’s objection was denied and the trooper appeared via video pursuant to NH RSA 21-P:13-III.
Throughout the course of the hearing, a number of significant technical issues hindered the respondent from effectively presenting his case and made it difficult for the hearings examiner to assess the credibility of witnesses. The audio quality of the trooper’s testimony can best be described as poor. There was a substantial lag between the video and the audio of his testimony, and the testimony sounded intermittently distant and garbled, requiring the trooper to repeat his testimony on a number of occasions. At one point, as the audio broadcast the trooper’s testimony, the video screen showed him simultaneously taking a drink from a bottle of water. Additionally, at numerous points during the hearing, the audio and video of the trooper’s testimony froze, for several seconds or minutes at a time, with no indication if or when it would resume. This issue grew worse as the hearing progressed, and was particularly problematic during the cross-examination of the trooper. At one point the trooper’s video feed was lost entirely.
The video image quality was likewise less than ideal. As an example of how the respondent was prejudiced thereby, one of the contested issues in the hearing became whether the trooper conducted a proper 20-minute observation of the respondent prior to administering the breath test. In pursuing this line of inquiry, counsel for the respondent drew a diagram of the layout of the Colebrook Police Department booking area, in an attempt to determine exactly where the trooper was in relation to the respondent during the 20-minute period. However, when counsel held the diagram up to the webcam for the trooper to view, the trooper stated that he could not see it. It is the State’s burden to establish that a properly conducted test resulted in a BAC result over the legal limit; if they do not establish that they conducted a proper 20-minute observation of the subject prior to the test, the suspension cannot be sustained. Thus, the respondent was denied the opportunity to fully cross-examine the trooper on this important issue, and the hearings examiner was left with an incomplete record upon which to decide a significant contested issue. The trooper’s testimony that the writing on the test ticket indicated that the observation period began at 04:00 and the first sample was taken at 04:24 a.m. is insufficient to carry the State’s burden. The issue was not whether 20 minutes elapsed prior to the sample capture, but whether the trooper was present and actually observed the respondent during the entire 20 minutes. Based on the testimony presented, I am left with doubts that he was.

1. ALS form / DSMV 426 # 365201.
2. Intoxilyzer 5000 machine certification.
3. Intoxilyzer 5000 operator certification for Trooper Favreau.
4. Copy of Intoxilyzer 5000 test ticket printout.

Notwithstanding the generally trouble-free nature of video hearings since their recent inception at the Bureau of Hearings, and the unquestionable savings in time and resources that they afford litigants, I find that in this case, the respondent was substantially disadvantaged by the trooper’s appearance via video conference, likely attributable to a poor internet connection. Due to the frequent and significant delays in the video feed, the lag between the video and audio, and the generally poor audio and video quality of the remote testimony, counsel for the respondent was significantly impaired in his ability to effectively cross-examine the State’s witness. Moreover, he was unable to present a diagram of the Colebrook Police Department to the trooper that was a key piece of evidence regarding whether a properly conducted breath test, with the mandatory 20-minute observation period, was administered.

1. On 01/09/12 Trooper Favreau arrested the respondent for DUI and submitted a properly sworn DSMV 426 to the NH DMV alleging a test over the legal limit.

2. Respondent through counsel timely requested a hearing to contest the administrative license suspension.

3. Trooper Favreau requested that he be allowed to appear via video teleconference rather than at the Bureau of Hearings for the scheduled hearing.

4. Counsel for respondent filed a timely written objection to the trooper’s request to appear via video teleconference.

5. The respondent’s objection to video hearing was overruled by decision dated 02/01/12.

6. Respondent and counsel appeared at the Bureau of Hearings for the scheduled hearing.

7. Trooper Favreau appeared from his home via video.

8. Numerous technical problems arose during the course of the hearing as noted above.

9. Respondent through counsel, based on the numerous technical problems encountered during the hearing, renewed his objection to the video appearance of the trooper.

10. The hearing on the merits proceeded and the matter of the video appearance was taken under advisement

11. Counsel for the respondent was unable to present a diagram of the booking area to the trooper during cross-examination as the trooper stated that he could not see it on the video screen.

The respondent was substantially disadvantaged by the video appearance in this case of Trooper Favreau; and the State failed to establish that a properly administered test with the required 20-minute observation resulted in a BAC of .o8 or more; consequently, the matter is dismissed. NH RSA 21-P:13-III; NH RSA 265:A-31.

The Confirmation of a Notice of Suspension/Revocation Action letter issued by the Director confirming the Order of Suspension, is RESCINDED.
Dated: February 09, 2012
Mark M. Seymour, Esq.
Hearings Examiner
A copy of this report was emailed to Attorney Leonard Harden, counsel for respondent, and Trooper Matthew Favreau, NHSP, on 02/09/12.

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