updated 9/12/2007 5:10:39 PM ET 2007-09-12T21:10:39

A man arrested for allegedly driving drunk is fighting to get his license back, saying his breath test was flawed because he was burping at the time.

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Frederick Cronin is appealing a decision by the state Division of Motor Vehicles to suspend his license after his June 15 arrest by state police.

According to court papers, Cronin was brought to the Stratham Police Department for booking after he was arrested.

Stratham Police Officer Christopher Call was asked to give Cronin a breath test. But before the test could be administered, Call was required to observe Cronin for 20 minutes.

During the 20-minute period, Cronin told Call that he had burped. Under administrative rules, police are required to restart the 20-minute observation period if a person "vomits, regurgitates or belches" during that time.

After learning of the burp, Call restarted the observation period, the appeal said. Following the observation, Cronin was given a breath test, which allegedly showed he had a blood alcohol level of 0.12 percent. The level a driver is considered drunk is .08 percent.

Before a required second sample was taken, Cronin told Call that he had burped again. Call then heard Cronin burp, but described it as a "dry burp," the appeal said.

Unsure of what to do because of the burp that occurred before the second sample, Call discussed the problem with Stratham Sgt. David Pierce, who told Call to have Cronin blow into the breath machine a second time and accept the results if they were close to those from the first sample.

The appeal said Call ordered Cronin to blow into the breath tester again, but the 20-minute observation period wasn't restarted.

The results of that second test put Cronins alleged blood alcohol level at 0.13 percent, court papers said.

Crucial ruling
At a hearing before the state Department of Motor Vehicles, Cronin argued that the rules regarding the administration of a breath test after a driver burps were not followed.

But the hearings examiner ruled that a "dry burp" did not constitute a "belch," and therefore the 20-minute observation period did not need to be restarted again.

The examiner also found that the "gaseous mix that flowed out of (Cronins) mouth had not emanated from (his) stomach and contained nothing but air," the appeal said.

However, Cronins appeal said the examiner never explained how he found this "distillation process" had occurred.

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