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Thursday, March 24, 2011

Ex-police captain: Dismiss 10 counts

NASHUA – A former Hudson police captain asked a judge Wednesday to dismiss 10 misdemeanor computer crimes he faces.

Donald Breault contends the state cannot charge him with the crimes because he had authorization to use Hudson Police Department’s computer system and change hours he worked.

Hillsborough County Superior Court Judge Diane Nicolosi could issue a ruling on the dismissal motion today. If the charges are dropped, the trial, which is in its second week, would still continue because Breault also faces a felony theft charge for allegedly profiting $1,000 by changing his work hours.

The evidence presented by prosecutors has attempted to support all 11 criminal charges, so jurors can still deliberate on the theft charge with the testimony and documents presented at the trial.

In the motion filed Wednesday, defense attorney Eric Wilson argues the state cannot charge Breault with breaking RSA 638:16 because he had authorization to use the Police Department computer system.

The law makes it a misdemeanor to “knowingly or recklessly, and without authorization, alter, delete, tamper with, damage, destroy or take data intended for a computer network,” Wilson wrote in the motion.

“Without question” Breault had authorization to access the department’s network, Wilson wrote. Testimony last week by Hudson Police Chief Jason Lavoie proved that Breault had permission to access the network to create and modify his attendance records, Wilson wrote.

Wilson anticipates, in the motion, that the state attorney general’s office will argue against dismissal by saying Breault didn’t have authorization to access the system for the purpose of tampering with records.

So Wilson further argues the motion with an analogy: If the only Hudson police officer who has authorization to enter an evidence room steals money from it, he would be guilty of theft. But the officer couldn’t be guilty of burglary because he had permission to enter the room, he wrote.

Also, the law’s penalties are aimed at someone who hacks into a computer network and not someone with authorization, Wilson wrote.

Prosecutors and Lavoie allege Breault profited more than $2,600 by manipulating and falsifying paid vacation and sick time and unpaid compensatory time. Breault was suspended in 2009 after Lavoie and prosecutors approached him about the alleged crimes, and he was fired by the town of Hudson the next year.

Lavoie acknowledged at the trial that at least six of the work hours Breault allegedly fudged possibly could have been worked by the former captain.

Breault is expected to testify today. Wilson will rest his case, possibly today or Friday.

Albert McKeon can be reached at 594-5832 or amckeon@nashuatelegraph.com