Mark M. Seymour, Esq.
Leonard D. Harden, Esq.
Matthew R. Favreau, NHSP OTHER PERSONS PRESENT: None
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.
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
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.
certification for Trooper Favreau.
Copy of Intoxilyzer 5000 test ticket printout.
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.
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.
Respondent through counsel timely requested a hearing to contest the
administrative license suspension.
Trooper Favreau requested that he be allowed to appear via video teleconference
rather than at the Bureau of Hearings for the scheduled hearing.
Counsel for respondent filed a timely written objection to the trooper’s
request to appear via video teleconference.
The respondent’s objection to video hearing was overruled by decision dated
Respondent and counsel appeared at the Bureau of Hearings for the scheduled
Trooper Favreau appeared from his home via video.
Numerous technical problems arose during the course of the hearing as noted
Respondent through counsel, based on the numerous technical problems
encountered during the hearing, renewed his objection to the video appearance
of the trooper.
The hearing on the merits proceeded and the matter of the video appearance was
taken under advisement
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.
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
Confirmation of a Notice of Suspension/Revocation Action letter issued by the
Director confirming the Order of Suspension, is RESCINDED.
February 09, 2012
M. Seymour, Esq.
report was emailed to Attorney Leonard Harden, counsel for respondent, and
Trooper Matthew Favreau, NHSP, on 02/09/12.