No. 31754 (Amendment): R714-500. Chemical Analysis Standards and Training

DAR File No.: 31754
Filed: 07/28/2008, 08:13
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule change is to update some of the information. Add in a definition portion and reorganize the rule to be easier to understand and separate the subtitles better. It also changes the time period for recertification from a two-year to three-year certification period.

Summary of the rule or change:

The rule amendment adds a definition section. It reorganizes the rule and adds in wording to make it more clear. It updates some statutory citations that have been changed during legislative sessions (H.B. 63). It refers to a program procedure that will be available to the public. It changes the certification period from two years to three years. It clears up the training requirements to become a certified technician.In response to H.B. 63 from the 2008 General Session, the agency is required to change the code citations to match the recodification of Title 63. (DAR NOTE: H.B. 63 (2008) is found at Chapter 382, Laws of Utah 2008, and was effective 05/05/2008.)

State statutory or constitutional authorization for this rule:

Section 41-6a-515

Anticipated cost or savings to:

the state budget:

The changes to the rule do not affect the state budget. There will not be any cost savings or expenditures because of this rule amendment.

local governments:

The changes to the rule may not affect the local government. Because of changing the certification period from two years to three years, that may mean the agencies can save four hours of training every two years. However for the required 40 hours of training required, this may not make a difference in the budgets.

small businesses and persons other than businesses:

The amended changes to this rule will not affect small businesses. The changes are not of a fiscal nature.

Compliance costs for affected persons:

There would not be cost compliance for affected persons with this amended rule changes.

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

There would be no negative impact to the Department of Public Safety or other governmental agencies and businesses. There would most likely be some cost savings to other governmental agencies as certification renewal is extended from two years to three years. Any savings to POST would be absorbed by other training programs at POST. Scott Duncan, 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:

Steve Winward at the above address, by phone at 801-256-2326, by FAX at 801-256-0600, 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:

09/15/2008

This rule may become effective on:

10/02/2008

Authorized by:

Scott T Duncan, Commissioner

RULE TEXT

R714. Public Safety, Highway Patrol.

R714-500. Chemical Analysis Standards and Training.

R714-500-[2]1. Authority.

A. This rule is authorized by Section 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.

 

R714-500-2. Definitions.

A. Certification Report means document prepared by a technician detailing the results of a certification check.

B. Certification Check means analysis of instrument function and calibration performed by technician.

C. Instrument means breath alcohol concentration testing instruments employed by law enforcement officers for evidentiary purposes and approved by the department.

D. Operator means individual certified by the department to administer breath alcohol concentration tests.

E. Breath Alcohol Concentration Test Results means analytical results of a breath alcohol concentration test provided by an approved instrument. Results are deemed to be an exact representation of breath alcohol concentration at the time of test.

F. Program means all breath alcohol concentration testing techniques, methods, and programs.

G. Program Supervisor means authorized representative of the Commissioner of Public Safety for the breath alcohol concentration testing program and supervisor of said program.

H. Technician means individual certified by the department to operate, provide training on, and perform maintenance, repairs, and certification checks on breath alcohol concentration testing instruments.

I. Breath Test means test administered by an operator or technician on an instrument for the purpose of determining breath alcohol concentration.

 

R714-500-[1]3. Purpose.

A. It is the purpose of this rule to set forth:

(1) Procedures whereby the department may certify:

(a) [Breath]breath alcohol concentration testing [instruments]programs;

(b) [Breath]breath alcohol concentration testing [programs]instruments;

(c) Breath alcohol concentration analytical results.

([c]d) [Breath]breath alcohol concentration testing operators;

([d]e) [Breath]breath alcohol concentration testing technicians; and

([e]f) [Breath]breath alcohol concentration testing program supervisors.

(2) Adjudicative procedure concerning:

(a) [Application]application for and denial, suspension or revocation of the aforementioned certifications; and

(b) [Appeal]appeal of initial department action concerning the aforementioned certifications.

 

R714-500-[3]4. Application for Certification.

A. Application for [any ]certification [herein ]shall be [made ]on forms provided by the department in accordance with Subsection [63-46b-3(3)(c)]63G-4-201(3)(c).

 

R714-500-5. Program Certification.

A. All programs must be certified by the department.

B. Prior to initiating a program, an agency or laboratory shall submit application to the department for certification. The application shall show the brand or model, or both, of the instrument to be used and contain a resume of the program followed. The department shall inspect to determine compliance with all applicable provisions under R714-500.

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.

 

R714-500-6. Instrument Certification.

A. Criteria: To be approved, each manufacturer's brand or model of instrument shall meet the following criteria:

1. The instrument shall provide accurate and consistent analysis of breath specimen for the determination of breath alcohol concentration for law enforcement purposes;

2. Breath alcohol concentration analysis of an instrument shall be based on the principle of infra-red energy absorption or any other similarly effective procedure as specified by the Department;

3. Breath specimen analyzed shall be essentially alveolar or end expiratory in composition according to the analysis method utilized;

4. Measurement of breath alcohol concentration shall be reported in grams of alcohol per 210 liters of breath;

5. The instrument shall analyze a reference sample during certification checks, following procedures outlined in R714-500-6-D;

6. Other criteria, deemed necessary by the Department, may be required to correctly and adequately evaluate the instrument as practical and reliable for law enforcement purposes.

B. Acceptance: The Department shall approve all breath alcohol concentration testing instruments employed for law enforcement evidentiary purposes.

1. The Department shall maintain an approved list of accepted instruments. Law enforcement entities shall select instruments from this list, which list shall be available for public inspection upon request from the Department, Utah Highway Patrol Training Section, 410 West 9800 South, Sandy, UT 84070.

2. A manufacturer may apply for approval of an instrument by brand or model not on the list. The Department shall subsequently examine each instrument to determine if it meets criteria specified by R714-500 and applicable purchase requisitions.

3. Upon compliance with R714-500, an instrument may be approved by brand or model and placed on the list of accepted instruments.

4. Certification Reports verifying the certification of all instruments shall be kept on file by the program supervisor and made available upon request through the Department, Utah Highway Patrol Training Section, 410 West 9800 South, Sandy, UT 84070.

A. Initial Instrument Certification: All breath alcohol concentration testing instruments used for law enforcement evidentiary purposes shall be certified prior to being placed into service at a specific location.

1. The program supervisor shall determine that each individual instrument, by serial number, conforms to the brand or model that appears on the commissioner's accepted list.

2. Prior to an instrument being placed into service at a specific location, a technician shall perform a certification check, following the standardized operating procedure and requirements outlined in R714-500-6-D.

3. Upon successful completion of these requirements, the instrument shall be deemed to be operating correctly and may be placed into service.

A. Regular Instrument Certification Checks

1. Once an instrument has been placed into service at a specific location, it shall be certified by a technician on a routine basis, not to exceed 40 days between certification checks.

2. The program supervisor shall establish a standardized operating procedure for performing certification checks, following requirements set forth in R714-500 or by using such procedures as recommended by the manufacturer of the instrument to meet its performance specifications, as derived from:

a. electrical power check;

b. operating temperature check;

c. internal purge check;

d. invalid test procedures check;

e. diagnostic measurements check;

f. internal calibration check;

g. known reference sample check; and

h. measurements of breath alcohol concentration, displayed in grams of alcohol per 210 liters of breath.

A copy of these standard operating procedures may be made available upon request through the Department, Utah Highway Patrol Training Section, 410 West 9800 South, Sandy, UT 84070.

1. For known reference sample checks set forth in R714-500-6-D-2-g, 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 from a pressurized cylinder.

a. The result of the analysis shall agree with the reference sample's predicted value, within parameters of calibration set at plus or minus 5% or 0.005, whichever is greater, or such limits as set by the Department.

i. For example, if a known reference sample has a value of 0.100, the parameters of calibration set at plus or minus 5% would equal 0.005 (0.100 x 5 % = 0.005). Acceptable parameters of calibration using a known 0.100 reference sample would therefore range from 0.095 to 0.105.

b. Analytical results of the known reference sample check shall be reported to three decimal places.

1. Other checks, deemed necessary by the Department or program supervisor, may be required to correctly and adequately evaluate the instrument.

2. Technicians shall follow the standardized operating procedure as set forth by the program supervisor when performing certification checks.

3. If an instrument successfully passes all the certification checks, it shall be deemed to be operating properly.

4. A report of the certification results with the serial number of the certified instrument shall be recorded on the approved Certification Report form by the technician, sent to the program supervisor, and placed in the file for certified instruments.

5. Results of certification checks shall be kept in a permanent record retained by the technician or program supervisor.

A. Instrument Repair and Recertification

1. The Department may at any time determine if a specific instrument is unreliable or unserviceable. Upon such a finding, the instrument shall be removed from service and certification withdrawn.

2. A report of the certification results showing the certification has been withdrawn shall be recorded on the approved Certification Report form by the technician, sent to the program supervisor, and placed in the file for certified instruments.

3. Upon proper repair, the instrument may be recertified and again placed into service at a specific location.

a. Minimum requirements for recertification are identical to those outlined in R714-500-6-D, sub-sections 2, 3, and 4.

4. A report of the certification results with the serial number of the recertified instrument shall be recorded on the approved Certification Report form by the technician, sent to the program supervisor, and placed in the file for certified instruments.

 

[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 Certificate of Calibration with the serial number of that instrument, shall be placed in a file for certified instruments. 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 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.]

 

R714-500-7. Breath Alcohol Concentration Test Analytical Results.

A. The instrument should be operated by either a certified operator or technician.

B. Breath specimen analyzed for breath alcohol concentration shall be essentially alveolar or end expiratory in composition according to the analysis method utilized.

1. The results oftests to determine breath alcohol concentration shall be expressed as equivalent grams of alcohol per 210 liters of breath.

2. Analytical results on a breath alcohol concentration test shall be recorded using terminology established by State statute and reported to three decimal places.

a. For example, a result of 0.237g/210L shall be reported as 0.237.

C. Results of breath alcohol concentration tests will be printed by the instrument.

D. Results are deemed to be an exact representation of breath alcohol concentration at the time of test.

E. The printed results of a breath alcohol concentration test will be retained by the operator or the operator's individual agencies' designated record or evidence custodian.

F. Instrument internal standards on a breath alcohol concentration test do not have to be recorded numerically.

 

R714-500-[6]8. Operator Certification.

A. All breath alcohol testing operators[, hereinafter "operators",] must be certified by the department.

B. All training for initial and renewal certification will be conducted by a program supervisor [and/]or technician.

C. Initial Certification

(1) In order to [apply for certification ]be certified as a[n] breath alcohol concentration testing instrument operator[ of a breath testing instrument], an [applicant]individual must successfully complete a course of instruction approved by the department, which must consist of eight hours of training, [include]including as a minimum the following:

a. [One hour of instruction on the e]Effects of alcohol in the human body[.];

b. [Two hours of instruction on the o]Operational principles of breath testing[.];

c. [One hour of instruction on the ]D.U.I. Summons and Citation[/], D.U.I. Report Form, and courtroom testimony[.];

d. [One and one half hours of instruction on the l]Legal aspects of chemical testing, [driving under the influence]DUI[,] case law, and other alcohol related laws[.];

e. [One and one half hours of l]Laboratory participation performing simulated tests on the instruments, including demonstrations under the supervision of a class instructor[.];

f. [One hour for e]Examination and critique of course.

(2) After successful completion of the initial certification course a certificate will be issued that will be valid for [two]three years.

D. Renewal Certification

(1) The operator is required to renew certification prior to its expiration date. The minimum requirement for renewal of operator certification will consist of eight hours of training, including as a minimum the following[be]:

a. [Two hours of instruction on the e]Effects of alcohol in the human body[.];

b. [Two hours of instruction on the o]Operational principles of breath testing[.];

c. [One hour of instruction on the ]D.U.I. Summons and Citation[/], D.U.I. Report Form, and courtroom testimony[ of arresting officer.];

d. [Two hours of instruction on the l]Legal aspects of chemical testing DUI case law, and other alcohol related laws[and detecting the drinking driver.];

e. [One hour for e]Examination and critique of course[.];

f. Or the operator must successfully complete the [Compact Disc Computer]web-based computer program including successful completion of exam. Results of exams must be forwarded to program supervisor and a certification certificate will be issued.

(2) After successful completion of the re-certification course a certificate will be issued that will be valid for three years.

[(2)](3) Any operator who allows their[his/her] certification to expire one year or longer must retake and successfully complete the initial certification course as outlined in [paragraph C]R714-500-8[ of this section].

 

R714-500-[7]9. Technician Certification.

A. All technicians, must be certified by the department.

B. The minimum qualifications for certification as a technician are:

(1) Satisfactory completion of the operator's initial certification course and/or renewal certification course[.];

(2) Satisfactory completion of the Breath Alcohol Testing Supervisor's course offered by Indiana University[,] or an equivalent course of instruction, as approved by the program supervisor[.];

(3) Satisfactory completion of the manufacturer's maintenance[/] and repair technician course[.];

(4) Maintainance of technician's status through a minimum of eight hours training each calendar year. This training must be directly related to the breath alcohol testing program[,] and must be approved by the program supervisor.

C. Any technician who fails to meet the requirements of [paragraph B, sub-paragraph (4) of this section ]R714-500-9-B and allows their[his/her] certification to expire for more than one year, must renew their[his/her] certification by meeting the minimum requirements as outlined in R714-500-9-B [paragraph B, sub-paragraphs (1), (2), and (3) of this section.]

D. Only certified breath alcohol testing technicians shall be authorized to provide expert testimony concerning the certification and all other aspects of the breath testing instrument under their supervision.

 

R714-500-[8]10. Program Supervisor Certification.

[A. ]The program supervisor will be required to meet the minimum certification standards set forth in [section 7 ]R714-500-9[ of this rule]. Certification should be within one year after initial appointment or other time as stated by the department.

 

R714-500-[9]11. Previously Certified Personnel.

A. This rule shall not be construed as invalidating the certification of personnel previously certified as operators under programs existing prior to the promulgation of this rule. Such personnel shall be deemed certified, provided they meet the training requirements as outlined in [section 6, paragraph D of this rule]R714-500-8.

B. This rule shall not be construed as invalidating the certification of personnel previously certified as a technician under programs existing prior to the promulgation of this rule. Such personnel shall be deemed certified, provided they meet the training requirements in R714-500-8[section 7, paragraph B, sub-paragraph (4) of this rule].

 

R714-500-[10]12. Revocation or Suspension of Certification.

A. The department may, on the recommendation of the program supervisor, revoke or suspend the certification of any operator or technician:

(1) Who fails to comply with or meet any of the criteria required in this rule[.]; or

(2) Who falsely or deceitfully obtained certification[.]; or

(3) Who fails to show proficiency in proper operation of the breath testing instrument[.]; or

(4) For other good cause.

 

R714-500-[11]13. Adjudicative Proceedings.

A. Purpose of section. It is the purpose of this section to set forth adjudicative proceedings in compliance with Title 63G Chapter[ 46b] 4.

B. Designation. All adjudicative proceedings performed by the department shall proceed informally as set forth herein and as authorized by Sections [63-46b-4]63G-4-202 and [63-46b-5]63G-4-203.

C. Denial, suspension or revocation. A party who is denied certification or whose certification is suspended or revoked, will be informed within a period of 30 days by the department the reasons for denial, suspension, or revocation.

D. Appeal of denial, suspension, or revocation. A party who is denied certification or whose certification is suspended or revoked may appeal to the commissioner or designee on a form provided by the department in accordance with Subsection [63-46b-3(3)(c)]63G-4-201(3)(C). The appeal must be filed within ten days after receiving notice of the department action.

E. No hearing will be granted to the party. The commissioner or designee will merely review the appeal and issue a written decision to the party within ten days after receiving the appeal.

 

KEY: alcohol, intoxilyzer, breath testing, operator certification

Date of Enactment or Last Substantive Amendment: [January 5, 2006]2008

Notice of Continuation: May 12, 2005

Authorizing, and Implemented or Interpreted Law: 41-6a-515; [63-46b]63G-4