dissenting, with whom King, C.J., concurs: When the breathalyzer law was passed by the 1965 legislature and interpreted by this court in State v. Shutt, 116 N.H. 495, 363 A.2d 406 (1976), the technology did not exist for the taking and preservation of an additional breath test at reasonable cost. RSA 265:86, however, requires in instances where the test involves blood or urine that second samples be retained. Furthermore, the State in these cases has agreed that a second sample of breath or its functional equivalent may now be preserved at reasonable costs. The decision as to which of the three bodily substances will be examined is vested solely in the law enforcement authorities, as it should be. Nevertheless, when the law enforcement agency chooses the breath test it chooses the evidentiary technique that is solely and completely in the control of the prosecution despite the fact that other courses permitting independent analysis by the defendants are available. Consequently, this policy undermines the integrity of *930the fact-finding process; therefore, the due process questions presented by these defendants are of constitutional dimensions.
The fact that samples of breath, or their functional equivalent, may be preserved at a reasonable cost for testing by defendants has been recognized and has resulted in changes in the law in the States of Colorado and Arizona by court decision, see Baca v. Smith, 124 Ariz. 353, 356-57, 604 P.2d 617, 620-21 (1979); Garcia v. Dist. Ct., 197 Colo. 38, 47, 589 P.2d 924, 930 (1979), while our neighboring State of Vermont has by statute required the preservation of an additional sample. Vt. Stat. Ann. tit. 23, § 1203(a) (Supp. 1982).
In these appeals, the defendants have unsuccessfully promoted the recognition of a constitutional right. Although the majority of this court has failed to acknowledge the existence of a constitutional deficiency today, nevertheless, they concede that technological advances since the Shutt case have occurred and recognize that “dictates of basic fairness may require that the State avail itself of such technology.” The result is ironic; these defendants, who have precipitated the court’s recognition of a serious potential deficiency in the manner in which breathalyzer tests are administered, have nothing to show for their effort. Because I believe that the lack of a second breath sample violates constitutional notions of due process, I would hold that this new requirement applies to all cases pending at the time of the finding, as well as to the defendants.
In concurring specially, my Brother Douglas states that he “would overrule Shutt prospectively” as of February 1, 1983. This implies that he is prepared to deny rights asserted by litigants before the court and afford such rights to nameless litigants not yet before the court.
The overwhelming body of law in this country, including much of the authority cited by my Brother Douglas, stands for the proposition that when a new constitutional rule affecting the fact-finding process is announced, it is to be applied prospectively and not retrospectively, i.e., to those defendants at bar and to any cases which have not been finally adjudicated. United States v. Johnson, 102 S. Ct. 2579, 2584-85 (1982) (citations omitted). Moreover, where the new constitutional rule overcomes an aspect of a criminal trial that substantially impairs the truth-finding function so as to raise serious questions about the accuracy of past guilty verdicts, the new rule is given complete retroactive effect. Id. at 2584.
Refusing to let litigants reap the benefit of their legal harvest is disfavored even in civil cases. Merrill v. Manchester, 114 N.H. 722, 730-31, 332 A.2d 378, 384 (1974). This court has routinely afforded criminal defendants this benefit. See, e.g., State v. Goddard, 122 N.H. 471, 446 A.2d 456 (1982) (arson and burglary); State v. Staples, *931120 N.H. 278, 415 A.2d 320 (1980) (rape); State v. Aubert, 120 N.H. 634, 421 A.2d 124 (1980) (murder). The United States Supreme Court does not deprive successful litigants in criminal cases of the benefit of their appeals. See, e.g., Stovall v. Denno, 388 U.S. 293, 301 (1967) (where the court declined to apply United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), retrospectively); Morrissey v. Brewer, 408 U.S. 471, 490 (1972) (where the new rule applied to future revocations and Morrissey’s and Booher’s cases were remanded to determine whether the parole revocation procedures afforded were consistent with the standards set forth by the Court). Civil cases are inapposite and are governed by a different standard. United States v. Johnson, 102 S. Ct. at 2586 n.12.
To acknowledge that there is a constitutional infirmity, but postpone its recognition until a specified future date, is to embark upon a dangerous course of judicial legislation and substantially to dilute judicial accountability. Were this approach to appellate review to be adopted, counsel in every case will be called upon to brief and argue the effective date of any new doctrine in addition to the underlying substantive constitutional questions.