Sec.15-140r-10. Direct breath alcohol test

(a) No person shall operate a direct breath alcohol testing device or instrument unless such person has been certified by the commissioner and is employed by a law enforcement agency, the Department of Environmental Protection or the department. Such operator shall conduct tests according to methods and with such devices and instruments approved by the commissioner and shall verify the accuracy of the device or instrument immediately before and after each test.

(b) Approval of device or instrument

(1) Standard of performance

Approval of a particular type and model of device or instrument shall be based on a laboratory evaluation of each device or instrument and its accessories to meet the following standard of performance:

(A) The device or instrument shall be capable of collecting and analyzing breath samples that are alveolar in composition;

(B) The device or instrument shall be capable of accurately analyzing a blank sample and suitable reference samples, such as air equilibrated with reference solutions of known alcohol concentration at known temperature; and

(C) The device or instrument shall be capable of alcohol analyses that result in a concentration less than 0.01 gram per 210 liters of air, i.e. 0.01 percent, when alcohol-free subjects are tested.

(2) Evaluation and approval

(A) The applicant shall provide the commissioner with each device or instrument and all related accessories for which approval is sought, complete operating instructions, and such other materials or technical assistance as the commissioner may require to conduct an evaluation of the application.

(B) The commissioner may also approve modified versions of such devices or instruments and accessories when the modifications do not alter the capabilities of the devices or instruments and their associated accessories to meet the standards of performance as provided in subdivision (1) of this subsection.

(3) Certification of specific devices or instruments

(A) Each device or instrument shall be examined and certified prior to being placed in operation and after repairs that affect or alter its calibration. Repairs to printers shall not be subject to the requirements of this subdivision.

(B) Annual certification shall not be required.

(c) Methods for conducting direct breath alcohol tests

All direct breath alcohol testing shall be conducted in accordance with the following procedures:

(1) Sample collection

(A) The expired breath sample shall be air that is alveolar in composition. The breath sample shall be collected only after the subject has been monitored for at least 15 minutes prior to the collection of each sample. During this period, the test subject shall not have ingested alcoholic beverages or food, regurgitated or smoked.

(B) Samples of the test subject's breath shall be collected with a device or instrument approved in accordance with subsection (b) of this section.

(2) Operation of device or instrument

(A) Operators shall follow the manufacturer's operating instructions for the device or instrument, unless the commissioner has accepted a modification of such instructions. If the instructions have been so modified, then the instructions as modified shall be followed. The operating instructions applicable to the device or instrument shall be available at each location where a device or instrument is used.

(B) All agencies using a device or instrument shall make available for inspection by the commissioner all devices or instruments used by them, together with the current logbook associated with each such device or instrument. Such logbook shall include the identity of each operator using the device or instrument, the frequency with which the device or instrument has been checked for accuracy, and the results of each subject's analysis and calibration.

(d) Certification of operators and instructors

(1) Certification of operators

(A) General requirements

An operator of a direct breath alcohol testing device or instrument shall meet the following requirements:

(i) Employment by a law enforcement agency, the Department of Environmental Protection or the department;

(ii) Successful completion of at least four hours of training in the operation of the device or instrument to be used. Such training may be acquired by attending training courses offered by the department or by certified instructors; and

(iii) Demonstration to the commissioner of the proper use and application of such device or instrument.

(B) Proficiency instruction and review

(i) At any time after certification, the commissioner may require an operator to satisfactorily demonstrate proficiency in the use of such device or instrument.

(ii) Each operator shall demonstrate to a certified instructor competence in the operation of a device or instrument at least once during the 12-month period following the last such demonstration. The results of each such review shall be reported to the commissioner.

(2) Certification of instructors

In order to be certified as an instructor in the use of a direct breath alcohol testing device or instrument, the following requirements shall be met:

(A) Employment by a law enforcement agency, the Department of Environmental Protection or the department;

(B) Successful completion of at least seven hours of instruction approved by the commissioner on a designated device or instrument. Such instruction shall include the following:

(i) The theory of the devices or instruments used in the analytical process that measures the alcohol content of the blood;

(ii) Practical application and experience in the use of such devices or instruments; and

(iii) Presentations and discussions of the pharmacological and physiological effects of alcohol on the human body.

(C) Proficiency instruction and review

Each instructor shall attend an annual course of instruction conducted by the commissioner.

(e) Revocation of certification of operators and instructors

(1) The commissioner may revoke a certification issued to an operator for the following reasons:

(A) Failure to remain employed by a law enforcement agency, the Department of Environmental Protection or the department;

(B) Misuse of the device or instrument or incompetence in the performance of tests; or

(C) Failure to participate in proficiency review and testing or failure to properly perform tests during proficiency review and testing.

(2) The commissioner may revoke a certification issued to an instructor for the following reasons:

(A) Failure to remain employed by a law enforcement agency, the Department of Environmental Protection or the department;

(B) Failure to demonstrate knowledge of the device or instrument or testing procedures to the extent necessary to instruct operators; or

(C) Failure to attend an annual course of instruction conducted by the commissioner.

(Adopted effective August 30, 2005)