5977448 Forensic Sciences, Department of - Notice of Second Proposed Rulemaking - Title 28, Chapter 37 Breath Alcohol Testing Program

DEPARTMENT OF FORENSIC SCIENCES

 

NOTICE OF SECOND PROPOSED RULEMAKING

 

The Director of the Department of Forensic Sciences (the Director), pursuant to the authority set forth in Section 16 of the Department of Forensic Sciences Establishment Act of 2011, effective August 17, 2011 (D.C. Law 19-18; D.C. Official Code §§ 5-1501.01 et seq. (2012 Repl.)), hereby gives notice of the intent to adopt a new Chapter 37 (Breath Alcohol Testing Program) of Title 28 (Corrections, Courts, and Criminal Justice) of the District of Columbia Municipal Regulations (DCMR), in not less than thirty (30) days from the date of publication of this notice in the D.C. Register.

                                                  

This rulemaking establishes requirements for the certification, calibration, and maintenance of breath alcohol evidential instruments for providing forensic science services and training pertaining to forensic testing of breath for alcohol content. Additionally, this rulemaking defines the role and responsibilities of the Office of the Chief Medical Examiner’s Breath Alcohol Program Manager and the process to obtain, and maintain, certification as a licensed operator and licensed technician.  These rules are consistent with the admissibility criteria set forth in Section 3q of the Anti-Drunk Driving Act of 1982, effective April 20, 2013 (D.C. Law 19-260; D.C. Official Code § 50-2206.52 (2014 Repl.)).

 

A previous Notice of Proposed Rulemaking was published in the D.C. Register on June 27, 2014, at 61 DCR 6443. This Notice of Second Proposed Rulemaking amends the previous Notice of Proposed Rulemaking, including provisions on technician licenses, renewal of technician licenses, and revocation of technician licenses, and clarifying that a licensed operator or licensed technician is certified in accordance with Section 3q of the Anti-Drunk Driving Act of 1982, effective April 27, 2013 (D.C. Law 19-266; D.C. Official Code § 50-2206.52 (2014 Repl.)).

 

Pursuant to D.C. Official Code § 5-1501.15, this proposed rulemaking will  be transmitted to the Council of the District of Columbia for a forty-five (45) day period of review, excluding Saturdays, Sundays, legal holidays, and days of Council recess.

 

Title 28 DCMR, CORRECTIONS, COURTS, AND CRIMINAL JUSTICE, is amended by adding a new Chapter 37, BREATH ALCOHOL TESTING PROGRAM, to read as follows:

 

CHAPTER 37     BREATH ALCOHOL PROGRAM

 

3700                BREATH ALCOHOL PROGRAM OVERSIGHT RESPONSIBILITIES

 

3700.1             The Department of Forensic Sciences (DFS) is responsible for overseeing certain aspects of the District’s Breath Alcohol Program, including:

 

(a)        Testing and certifying the accuracy of District evidential instruments used by District law enforcement personnel;

 

(b)        Developing a program for District law enforcement personnel to become trained and certified as operators of evidential instruments;

 

(c)        Developing policies and procedures for the operation and maintenance of all evidential instruments used by District law enforcement personnel; and

 

(d)       Developing policies and procedures for the maintenance of records demonstrating that the evidential instruments used by District law enforcement personnel are in proper operating condition.

 

3700.2             Pursuant to Section 8(c) of the Department of Forensic Sciences Establishment Act of 2011 (D.C. Law 19-18; D.C. Official Code § 5-1501.07(d)), the Director of DFS may delegate some or all of these responsibilities to the Office of the Chief Medical Examiner (OCME).

 

3700.3             Pursuant to a memorandum of agreement between DFS and OCME, the Director of DFS has delegated the administration of the District’s Breath Alcohol Program to the OCME.

 

3701                BREATH ALCOHOL PROGRAM MANAGER

 

3701.1             The Director of OCME shall appoint a Breath Alcohol Program Manager (Program Manager), who shall be responsible for ensuring the proper implementation of OCME’s responsibilities related to the District’s Breath Alcohol Program.

 

3701.2             The primary functions of the Program Manager, or designee, are to:

 

(a)        Provide technical and administrative support for the District’s Breath Alcohol Program;

 

(b)        Maintain all records that pertain to the calibration, certification, accuracy, and validity of, and data generated from, evidential instruments;

 

(c)        Maintain all records pertaining to the licensure of operators and technicians;

 

(d)       Maintain evidential instruments and affiliated equipment;

 

(f)        Establish standards for the testing and certification of evidential instruments;

 

(e)        Supervise data collection for the certification of evidential instruments;

 

 (g)       Select site location(s) for evidential instruments, in consultation with the Metropolitan Police Department;

 

(h)        Provide testimony as an expert witness, either by affidavit or in person, or in any other manner approved by the court, regarding breath alcohol testing;

 

(i)         Adopt and, as needed, amend a manual setting forth standards and procedures for breath alcohol program administration, including standards and procedures for the calibration, certification, and maintenance of evidential instruments.  This manual is currently titled the “Quality Management Manual Breath Alcohol Program” (Quality Manual);

 

(j)         Adopt and, as needed, amend a manual setting forth standards and procedures for operator training and licensing, including standards and procedures for basic evidential instrument operation, basic troubleshooting, and subject testing procedures.  This manual is currently titled the “Basic Training Program for Breath Alcohol Operators” (Operator’s Manual); and

 

(k)        Adopt and, as needed, amend a manual setting forth standards and procedures for technician training and licensure. This manual is currently titled the “Technician Training Manual Breath Alcohol Program” (Technician Training Manual).

 

3702                RECORDS RETENTION AND INSPECTION

 

3702.1             The Program Manager, or designee, shall maintain all records that pertain to the calibration, certification, accuracy, and validity of, and data generated from, evidential instruments used by the District’s Breath Alcohol Program, for a minimum of five (5) years.

 

3702.2             The Program Manager, or designee, shall provide copies of the records listed in § 3702.1 for inspection upon request from the following:

 

(a)                The Mayor; or the Mayor’s authorized representative;

 

(b)               The Office of the United States Attorney for the District of Columbia;

 

(c)                The Office of the Attorney General for the District of Columbia;

 

(d)               The Metropolitan Police Department;

 

(e)                The Office of the District of Columbia Auditor;

 

(f)                The Office of the Inspector General; and

 

(g)               Any other law enforcement agency with appropriate jurisdiction.

 

3703                APPROVAL OF EVIDENTIAL INSTRUMENTS

 

3703.1             The Program Manager, or designee, shall certify all evidential instruments used by licensed operators.

 

3703.2             Each evidential instrument shall be certified in accordance with the admissibility criteria set forth in Section 3q of the Anti-Drunk Driving Act of 1982, effective April 27, 2013 (D.C. Law 19-266; D.C. Official Code § 50-2206.52).

 

3703.3             The standards for testing and certifying an evidential instrument shall be set forth in the Quality Manual.

 

3703.4             An operator shall not use an evidential instrument to administer an evidential breath test unless the device has been certified by the Program Manager, or designee.

 

3704                OPERATOR LICENSES

 

3704.1             No individual shall operate an evidential instrument to test the alcohol content of breath unless the individual is licensed by the Program Manager, or designee, as an operator.

 

3704.2             Prior to initial licensure as an operator, an individual shall successfully complete a course of instruction that meets the criteria set forth in the Operator’s Manual.  

 

3704.3             Prior to initial licensure, an individual must also provide evidence that he or she has successfully completed a Standardized Field Sobriety Testing course taught in accordance with the curriculum established by the National Highway Traffic Safety Administration.

 

3704.4             The Program Manager, or designee, shall issue an operator license card to each individual that is approved for licensure as an operator.  The license card shall include the full name of the operator, a unique license number, and the expiration date of the license.  The Program Manager, or designee, shall also issue to the operator a unique personal identification number (“PIN”), which shall be associated with the license. 

 

3704.5             An operator license shall be valid for two (2) years unless earlier revoked by the Program Manager, or designee.

 

3707.3             A licensed operator shall be considered a certified breath test operator for the purposes of Section 3q of the Anti-Drunk Driving Act of 1982, effective April 20, 2013 (D.C. Law 19-260; D.C. Official Code § 50-2206.52).

 

3705                RENEWAL OF OPERATOR LICENSES

 

3705.1             In order to be eligible for renewal of his or her operator license, an operator shall satisfactorily complete a course of instruction approved by the Program Manager, or designee, as referenced in the Operator Manual.

 

3705.2             Upon renewal of a license, the Program Manager, or designee, shall issue a new operator license card to the operator.  The new license shall be valid for a period of two (2) years unless earlier revoked by the Program Manager, or designee.

 

3706                REVOCATION OF OPERATOR LICENSES

 

3706.1             The Program Manager, or designee, may revoke an operator’s license and deactivate the associated PIN if:

 

(a)                An operator voluntary surrenders his or her license;

 

(b)               An operator fails to properly perform his or her duties in a manner required by the Operator’s Manual;

 

(c)                The operator transfers to a position where licensure as an operator is no longer desired;

 

(d)               The operator fails to renew his or her license before its expiration date;

 

(e)                An operator’s employment with the agency under which the license was acquired is terminated; or

 

(f)                The operator fails to safeguard the scientific integrity of the Breath Alcohol Program.

 

3706.2             An individual with a revoked license shall not operate an evidential instrument.

 

3707                TECHNICIAN LICENSES

 

3707.1             No individual shall certify, calibrate, or maintain an evidential instrument, unless the person is licensed by the Program Manager, or designee, as a technician.

 

3707.2             Prior to initial licensure as a technician, an individual shall:

 

(a)        Obtain an operator license by successfully completing a course of instruction that meets the criteria set forth in the Operator’s Manual; and  

 

(c)        Meet the requirements for licensure as a technician as set forth in the Technician Training Manual.

 

3707.3             A technician license issued pursuant to this section shall be valid for two (2) years from the date it is issued, unless earlier revoked by the Program Manager, or designee.

 

3707.4             In order to maintain his or her licensure as a technician, the individual must also maintain a valid operator license in accordance with the Operator’s Manual and the provisions of this chapter.           

 

3707.3             A licensed technician shall be considered a certified technician for the purposes of Section 3q of the Anti-Drunk Driving Act of 1982, effective April 20, 2013 (D.C. Law 19-260; D.C. Official Code § 50-2206.52).

 

3708                RENEWAL OF TECHNICIAN LICENSES

 

3708.1             In order to be eligible for renewal of his or her technician license, a technician shall have satisfactorily completed a course of instruction approved by the Program Manager, or designee, as referenced in the Technician Training Manual and have a valid operator license.

 

3708.2             A technician license renewed pursuant to this section shall be valid for two (2) years.

 

3709                REVOCATION OF TECHNICIAN LICENSES

 

3709.1             The Program Manager, or designee, shall revoke a technician’s license, and deactivate the associated PIN, if:

 

(a)                The technician is no longer actively engaged in the District’s Breath Alcohol Program;

 

(b)        The technician deceitfully obtained licensure;

 

(c)        The technician fails to carry out responsibilities set forth in the Quality Manual; or

 

(d)       The technician fails to maintain a valid operator license;

 

(e)        The technician fails to renew his or her technician license before its expiration date; or

 

(f)        The technician failed to safeguard the scientific integrity of the Breath Alcohol Program.

 

3710                ACCEPTABLE RANGES FOR EVIDENTIAL BREATH TESTS

 

3710.1             The reference standard used to conduct an accuracy check of an evidential instrument must agree within ±0.005 grams of alcohol per two hundred ten (210) liters of breath of the predicted value.

 

3710.2             If the evidential instrument accuracy check falls outside of the acceptable range as defined in § 3710.1, the evidential instrument shall be disabled and a licensed operator shall not administer an evidential breath test with that instrument.

 

3710.3             Duplicate breath specimens shall be collected and the analytical results of the paired breath specimens must correlate within ±0.02 grams of alcohol per two hundred ten (210) liters of breath of each other in order for a breath test to be considered valid.

 

3711                DEFINITIONS

 

3711.1             For the purposes of this section, the following terms shall have the meanings ascribed below:

 

Accuracy check – an evaluation made by an evidential instrument of a reference standard with a predicted value.  The accuracy check occurs during the evidential breath test sequence.

 

Certification – the process by which reference standards are evaluated and a series of tests performed to verify the accuracy of the evidential instrument.

 

DFS – The Department of Forensic Sciences.

 

Evidential instrument – an analytical breath alcohol measuring device that has been issued a “Certificate of Instrument Accuracy” as defined by the Quality Manual and has been placed into field service to collect evidence.

 

Licensed operator – an individual licensed under this title by the Program Manager, or designee, as an operator.

 

Licensed technician – an individual licensed under this title by the Program Manager, or designee, as a technician.

 

OCME – The Office of the Chief Medical Examiner.

 

Operator’s Manual – the training manual for operators of evidential instruments, entitled “Basic Training Program for Breath Alcohol Operators,” maintained by the Program Manager, or designee.

 

Predicted value – a value produced by an evidential instrument for each evidential breath test based upon the barometric pressure compensation and the reference standard value.

 

Quality Manual – the manual for administration of the District’s Breath Alcohol Program, entitled “Quality Management Manual Breath Alcohol Program,” maintained by the Program Manager, or designee.

 

Reference standard – a commercial dry gas standard consisting of ethanol and balanced nitrogen traceable to the National Institute of Standards and Technology with a verified known value.  The verified known value for evidential breath alcohol tests is 0.082g of alcohol per 210L of air.

 

Subject – an individual that is given an evidential breath test which is administered by a licensed operator.

 

Subject test – an evidential breath alcohol test of a subject that meets the criteria defined in the Operator’s Manual.

 

Technician Training Manual – the manual that defines the training program for technicians in the Breath Alcohol Program.

 

 

On behalf of the Director of the Department of Forensic Sciences, comments on these rules should be submitted in writing to Mikelle DeVillier, Office of the Chief Medical Examiner, Government of the District of Columbia, 401 E Street, SW, 6th Floor, Washington, D.C. 20024, or by email to [e-mail], or online at www.dcregs.dc.gov, within thirty (30) days of the date of publication of this notice in the D.C. Register. Additional copies of the proposed rules are available from the above address.