No. 28342 (Amendment): R714-500. Chemical Analysis Standards and Training.

DAR File No.: 28342
Filed: 11/09/2005, 09:29
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The first change is due to the recodification of the Utah Code from this year's legislative session. The bill that was introduced and passed was S.B. 5 in the 2005 session, this recodified the the entire traffic code. The second change is for the option of not requiring a notarized affidavit. By code an affidavit requires to be notarized. Section 41-6a-515 does not require that these certificates be called affidavits. By changing the wording to "Certificate of Calibration" this would give us the option to continue with notarizing these documents. (DAR NOTE: S.B. 5 (2005) is found at UT L 2005 Ch 2, and was effective 02/02/2005.)

 

Summary of the rule or change:

The first change is changing all the Code references from Subsection 41-6-44.3(1) to Section 41-6a-515. The second change is changing all the wording for "Affidavit" to "Certificate of Calibration".

 

State statutory or constitutional authorization for this rule:

Section 41-6a-515

 

This rule or change incorporates by reference the following material:

see added admendment.

 

Anticipated cost or savings to:

the state budget:

Currently, the troopers that check the intoxilyzer are required to have the affidavits signed by a notary. When the change is effective, removing the requirement from having these documents notarized will save several hours a month for troopers to locate a notary to sign the affidavits.

 

local governments:

All the intoxilyzer that are maintained within the state are owned and maintained by the Department of Public Safety. Therefore, there would not be any cost or savings to local government.

 

other persons:

All the intoxilyzer that are maintained within the state are owned and maintained by the Department of Public Safety. Therefore, there would not be any cost or savings to other persons.

 

Compliance costs for affected persons:

All the intoxilyzer that are maintained within the state are owned and maintained by the Department of Public Safety. Therefore, there would not be any cost for affected persons.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no fiscal impact on businesses because of this rule. Robert Flowers, Commissioner

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Public Safety
Highway Patrol
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY UT 84119-5994

 

Direct questions regarding this rule to:

Steven Winward at the above address, by phone at 801-284-5509, by FAX at 801-284-5556, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

01/03/2006

 

This rule may become effective on:

01/04/2006

 

Authorized by:

Scott Duncan, Superintendent

 

 

RULE TEXT

R714. Public Safety, Highway Patrol.

R714-500. Chemical Analysis Standards and Training.

R714-500-2. Authority.

A. This rule is authorized by [Subsection]Section [41-6-44.3(1)]41-6a-515 which requires the commissioner of the Department of Public Safety, hereinafter "department", to establish standards for the administration and interpretation of chemical analysis of a person's breath, including standards of training.

 

R714-500-4. Instrument Certification.

A. Acceptance: All breath alcohol testing instruments employed by Utah law enforcement officers, to be used for evidentiary purposes, shall be approved by the department.

(1) The department shall maintain an approved list of accepted instruments for use in the state. Law enforcement entities shall select breath alcohol instruments from this accepted list, which list shall be available for public inspection at the department during normal working hours.

(2) A manufacturer may make application for approval of an instrument by brand and/or model not on the list. The department shall subsequently examine and evaluate each instrument to determine if it meets criteria specified by this rule and applicable purchase requisitions.

B. Criteria: In order to be approved, each manufacturer's brand and/or model of breath testing instrument shall meet the following criteria.

(1) Breath alcohol analysis of an instrument shall be based on the principle of infra-red energy absorption, or any other similarly effective procedure specified by the department.

(2) Breath specimen collected for analysis shall be essentially alveolar and/or end expiratory in composition according to the analysis method utilized.

(3) The instrument shall analyze a reference sample, such as headspace gas from a mixture of water and a known weight or volume of ethanol, held at a constant temperature, or a compressed inert gas and alcohol mixture in a pressurized cylinder. The result of the analysis must agree with the reference sample's predicted value, within plus or minus 5%, or .005, whichever is greater, or such limits as set by the department. For example, if a known reference sample is .10, a plus or minus range of 5%=.005 (.10 x 5 %= .005). The test result, using a known .10 solution or compressed inert gas and alcohol solution, could range from .095-.105.

(4) The instrument shall provide an accurate and consistent analysis of breath specimen for the determination of alcohol concentration for law enforcement purposes. The instrument shall function within the manufacturer's specifications of:

(a) electrical power,

(b) operating temperature,

(c) internal purge,

(d) internal calibration,

(e) diagnostic measurements,

(f) invalid test procedures,

(g) known reference sample testing,

(h) measurements of breath alcohol, as displayed in grams of alcohol per 210 liters of breath.

(5) Any other tests, deemed necessary by the department, may be required in order to correctly and adequately evaluate the instrument, to give the most accurate and correct results in routine breath alcohol testing and be practical and reliable for law enforcement purposes.

C. List: Upon proof of compliance with this rule, an instrument may be approved by brand and/or model and placed on the list of accepted instruments. By inclusion on the department's list of accepted instruments, it will be deemed to have met the criteria listed above.

D. Certification: All breath alcohol instruments purchased for law enforcement evidentiary purposes, shall be certified before being placed into service.

(1) The breath alcohol testing program supervisor, hereinafter, "program supervisor", shall determine if each individual instrument, by serial number, conforms to the brand and/or model that appears on the commissioner's accepted list.

(2) Once an individual instrument has been purchased, found to be operating correctly and placed into service, the [affidavit]Certificate of Calibration with the serial number of that instrument, shall be placed in a file for certified instruments. [Affidavits]Certificates of Calibration verifying the certification of any breath testing instrument shall be available during normal business hours through the Department of Public Safety, more specifically the Utah Highway Patrol Training Section, 5681 S. 320 West, Murray, UT 84107.

(3) The department may, at any time, determine if a specific instrument is unreliable and/or unserviceable. Pending such a finding, an instrument may be removed from service and certification may be withdrawn.

(4) Only certified breath alcohol testing technicians, hereinafter "technicians", as defined by Section 7 of this rule when required, shall be authorized to provide expert testimony concerning the certification and all other aspects of the breath testing instrument under his/her supervision.

 

R714-500-5. Program Certification.

A. All breath alcohol testing techniques, methods, and programs, hereinafter "program", must be certified by the department.

B. Prior to initiating a program, an agency or laboratory shall submit an application to the department for certification. The application shall show the brand and/or model of the instrument to be used and contain a resume of the program to be followed. An on-site inspection shall be made by the department to determine compliance with all applicable provisions in this rule.

C. Certification of a program may be denied, suspended, or revoked by the department if, based on information obtained by the department, program supervisor, or technician, the agency or laboratory fails to meet the criteria as outlined by the department.

D. All programs, in order to be certified, shall meet the following criteria:

(1) The results of tests to determine the concentration of alcohol on a person's breath shall be expressed as equivalent grams of alcohol per 210 liters of breath. The results of such tests shall be entered in a permanent record book for department use.

(2) Printed checklists, outlining the method of properly performing breath tests shall be available at each location where tests are given. Test record cards used in conjunction with breath testing shall be available at each location where tests are given. Both the checklist and test record card, after completion of a test should be retained by the operator.

(3) The instruments shall be certified on a routine basis, not to exceed 40 days between calibration tests, by a technician, depending on location of instruments and area of responsibility.

(4) Certification procedures to certify the breath testing instrument shall be performed by a technician as required in this rule, or by using such procedures as recommended by the manufacturer of the instrument to meet its performance specifications, as derived from:

(a) electrical power tests,

(b) operating temperature tests,

(c) internal purge tests,

(d) internal calibration tests,

(e) diagnostic tests,

(f) invalid function tests,

(g) known reference samples testing, and

(h) measurements displayed in grams of alcohol per 210 liters of breath.

(5) Results of tests for certification shall be kept in a permanent record book retained by the technician. A report of the certification procedure shall be recorded on the approved form [(affidavit)]Certificate of Calibration and sent to the program supervisor.

(6) Except as set forth in paragraph 7 in this section, all analytical results on a subject test shall be recorded, using terminology established by state statute and reported to three decimal places. For example, a result of 0.237g/210L shall be reported as 0.237.

(7) Internal standards on a subject test do not have to be recorded numerically.

(8) The instrument must be operated by either a certified operator or technician.

 

KEY: alcohol, intoxilyzer, breath testing, operator certification

[October 3, 2002]2006

Notice of Continuation May 12, 2005

[41-6-44.3]41-6a-515

63-46b