DAR File No. 39850

Public Safety, Highway Patrol

Rule R714-500

Chemical Analysis Standards and Training

Notice of Proposed Rule

(Amendment)

DAR File No.: 39850
Filed: 10/16/2015 10:44:10 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is authorized by Section 41-6a-515 which requires the Commissioner of the Department of Public Safety to establish standards for the administration and interpretation of chemical analysis of a person's breath, including standards of training. The changes proposed clean up some language and grammar. The changes will also affect the requirements for an operator to re-certify every three years.

Summary of the rule or change:

The changes will include some language and grammar clean-up. The proposed changes will define the process for how an operator will need to re-certify every three years. The changes will allow for an operator to take a re-certification exam, if they pass the exam they renew their certification for another three years. If they are unable to pass or allow their certification to lapse, they will be required to take a four-hour class and pass the exam.

State statutory or constitutional authorization for this rule:

• Section 41-6a-515

Anticipated cost or savings to:

the state budget:

The proposed changes will clean-up some grammar in the rule, and it also changes the requirement for law enforcement officers to take an online test to re-certify as an intoxilyzer operator rather then take an eight-hour course. There will be a time savings for individual officers from police officers all over the state. The cost saved by training hours will be absorbed in other training. Per statute law enforcement officers are required to get 40 hours of training to maintain certification. The test already exists online and there will not be a cost to create this test. The rule change will not affect state budgets.

local governments:

The proposed change will clean-up some grammar in the rule, and it also changes the requirement for law enforcement officers to take an online test to re-certify as an intoxilyzer operator rather then take an eight-hour course. There will be a time savings for individual officers from police officers all over the state. The cost saved by training hours will be absorbed in other training. Per statute law enforcement officers are required to get 40 hours of training to maintain certification. The test already exists online and there will not be a cost to create this test. The rule change will not affect local government.

small businesses:

The proposed change will clean-up some grammar in the rule, and it also changes the requirement for law enforcement officers to take an online test to re-certify as an intoxilyzer operator rather then take an eight-hour course. There will be a time savings for individual officers from police officers all over the state. The cost saved by training hours will be absorbed in other training. Per statute law enforcement officers are required to get 40 hours of training to maintain certification. The test already exists online and there will not be a cost to create this test. The rule change is for law enforcement officers and will not affect small businesses.

persons other than small businesses, businesses, or local governmental entities:

The proposed change will clean up some grammar in the rule, and it also changes the requirement for law enforcement officers to take an online test to re-certify as an intoxilyzer operator rather then take an eight hour course. There will be a time savings for individual officers from police officers all over the state. The cost saved by training hours will be absorbed in other training. Per statute law enforcement officers are required to get 40 hours of training to maintain certification. The test already exists online and there will not be a cost to create this test. The rule change will not affect any other persons or entities not listed above.

Compliance costs for affected persons:

The online exam already exists and has already been utilized by officer to take the exam, there will be no compliance costs for affected persons.

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

This change will not have any fiscal impact on businesses.

Keith Squires, 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 801-550-6163, by FAX at , or by Internet E-mail at [email protected]

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:

12/31/2015

This rule may become effective on:

01/15/2016

Authorized by:

Steven Winward, Captain

R714. Public Safety, Highway Patrol.

R714-500. Chemical Analysis Standards and Training.

R714-500-1. Authority.

A. This rule is authorized by Section 41-6a-515 which requires the [c]Commissioner of the Department of Public Safety 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.

J. Department means the Utah Department of Public Safety.

 

R714-500-3. Purpose.

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

(1) Procedures whereby the department may certify:

(a) breath alcohol concentration testing programs;

(b) breath alcohol concentration testing instruments;

(c) breath alcohol concentration analytical results.

(d) breath alcohol concentration testing operators;

(e) breath alcohol concentration testing technicians; and

(f) breath alcohol concentration testing program supervisors.

(2) Adjudicative procedure concerning:

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

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

 

R714-500-4. Application for Certification.

A. Application for certification shall be on forms provided by the department in accordance with Subsection 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 [d]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 [d]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 [d]Department if, based on information obtained by the [d]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.

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

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

2. Prior to an instrument being placed into service, 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.

D. Regular Instrument Certification Checks

1. Once an instrument has been placed into service, 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.

3. 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.

E. 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.

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.

 

R714-500-7. 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 of tests 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.

 

R714-500-8. Operator Certification.

A. All breath alcohol testing operators must be certified by the [d]Department.

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

C. Initial Certification

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

a. Effects of alcohol in the human body;

b. Operational principles of breath testing;

c. D.U.I. Summons and Citation, D.U.I. Report Form, and courtroom testimony;

d. Legal aspects of chemical testing, DUI case law, and other alcohol related laws;

e. Laboratory participation performing simulated tests on the instruments, including demonstrations under the supervision of a class instructor; and

f. Examination and critique of course.

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

D. Renewal Certification

(1) An operator seeking to renew his or her certification shall successfully complete the recertification exam prior to the expiration date of the certificate.

[(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:

a. Effects of alcohol in the human body;

b. Operational principles of breath testing;

c. D.U.I. Summons and Citation, D.U.I. Report Form, and courtroom testimony;

d. Legal aspects of chemical testing DUI case law, and other alcohol related laws;

e. Examination and critique of course;

f. Or the operator must successfully complete the 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) The Department shall renew an operator's certificate for a three-year period after he or she successfully completes the recertification examination.

(3) Any operator who se [allows their ]certification [to ]expire s [one year or longer must]shall retake and successfully complete the [initial ]recertification course in order to renew his or her certification.[as outlined in R714-500-8.]

Four hours of training, including the following topics:

a. Effects of alcohol in the human body;

b. Operational principles of breath testing;

c. D.U.I. Summons and Citation, D.U.I. Report Form, and courtroom testimony;

d. Legal aspects of chemical testing DUI case law, and other alcohol related laws; and

e. Successful completion of the recertification examination.

 

R714-500-9. 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) Maintenance 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 R714-500-9-B and allows their certification to expire for more than one year, must renew their certification by meeting the minimum requirements as outlined in R714-500-9-B.

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.

 

R714-500-10. Program Supervisor Certification.

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

 

R714-500-11. 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 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.

 

R714-500-12. 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.

 

R714-500-13. Adjudicative Proceedings.

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

B. Designation. All adjudicative proceedings performed by the department shall proceed informally as set forth herein and as authorized by Sections 63G-4-202 and 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 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: [November 27, 2010]2015

Notice of Continuation: October 2, 2014

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