4967969 Forensic Sciences , Department of - Notice of Proposed Rulemaking - New Chapter 37 to support the D.C. Breath Alcohol Testing Program

D.C. DEPARTMENT OF FORENSIC SCIENCES

 

NOTICE OF PROPOSED RULE MAKING

 

The Director of the Department of Forensic Sciences, pursuant to the authority set forth in 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.), hereby gives notice of the proposed rules to add a new Chapter 37 (District of Columbia Breath Alcohol Testing Program) of Title 28 (Corrections, Courts, and Criminal Justice) of the District of Columbia Municipal Regulations (DCMR).

 

The District of Columbia Breath Alcohol Testing Program regulations will inform the requirements for the certification, calibration and maintenance of the breath alcohol testing equipment, for providing forensic science services and training pertaining to forensic testing of breath for ethanol content.

 

The Department gives notices of its intent to adopt these proposed rules in not less than thirty (30) days from the date of publication of this notice in the D.C. Register. Pursuant to D.C. Official Code § 5-1501.15,  these proposed rules will also be transmitted to the Council of the District of Columbia, and the final rules may not become effective until the expiration of the forty-five (45) day period of Council review, excluding Saturdays, Sundays, legal holidays, and days of Council recess. If the Council does not approve or disapprove the proposed rules, by resolution, within the forty-five (45) day review period, the proposed rules shall be deemed approved.

 

Title 28 DCMR (Corrections, Courts, and Criminal Justice) is amended by adding a new Chapter 37 (District of Columbia Breath Alcohol Tasting Program) to read as follows:

 

3700                BREATH ALCOHOL PROGRAM MANAGER RESPONSIBILITIES

 

3700.1             The primary function of the Breath Alcohol Program Manager is as follows:

 

(a)                Provide the technical and administrative support for the District’s breath

alcohol testing program; and

 

(b)        Maintain all records that pertain to the calibration, certification, accuracy, validity, and data generated from evidentiary instruments and licensure of operators and technicians.

 

3700.2 Supervision of the program shall include:

 

(a)                Maintaining evidentiary instrument(s), and affiliated equipment;

 

(b)               Supervising data collection for initial certification and/or approval of individual evidentiary instruments, including the following:

 

1.                  Developing techniques for testing and for certification of evidentiary instruments; and

 

2.                  Selecting site location(s) for evidential breath alcohol testing.

 

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

 

(d)               Maintaining records of all operators’ and technicians’ licensure records;

 

(e)                Modifying the Quality Management Manual Breath Alcohol Program and Basic Training Program for Breath Alcohol Operator’s Manual (Operator’s Manual) when needed; and

 

(f)                Maintaining all versions of the Operator’s Manual and the Quality Management Manual Breath Alcohol Program (Quality Manual) to include revision dates.

 

3700.3             The Breath Alcohol Program Manager shall maintain all records that pertain to the calibration, accuracy, and validity of, and data generated from, evidentiary instruments used by the Breath Alcohol Program, for a minimum of five (5) years.

 

3700.4       The Breath Alcohol Program Manager shall provide copies of records listed in Subsection 3700.3 for inspection upon request from the following:

 

(a)                The Mayor; or 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 (MPD);

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

(f)                The Office of the Inspector General; and

(g)               Any other law enforcement agency.

 

3701                APPROVAL OF DEVICES

 

3701.1             The Breath Alcohol Program Manager shall approve all evidentiary instruments used by licensed operators.

 

3701.2             Devices are approved and certified in accordance with the admissibility criteria defined in D.C. Official Code § 50-2206.52a.

 

3701.3             The standard operating procedures in the Quality Manual are the procedures for establishing the accuracy of the District’s evidentiary instruments.

 

3702                OPERATOR LICENSURE

 

3702.1             The Breath Alcohol Program Manager shall approve and maintain a Basic Training Program in accordance with the Operator’s Manual and shall issue operator licenses under the standards in the Operator’s Manual.

 

3702.2         An applicant shall successfully complete a course of instruction which meets the criteria set forth in the Operator’s Manual in order to obtain licensure as an operator. That includes:

 

(a)                Basic breath instrument operation;

 

(b)               Basic troubleshooting for the evidential instrument; and

 

(c)                Subject testing procedures.

 

3702.3             An applicant must also establish successful participation in and completion of a Standardized Field Sobriety Testing course in accordance with the curriculum established by the National Highway Traffic Safety Administration.

 

3702.4       Prior to initial licensure an applicant must satisfactorily complete examinations, prepared and given by the Breath Alcohol Program Manager in accordance with the Operator’s Manual, to include:

 

(a)                A written examination; and

 

(b)               A practical examination.

 

3702.5             An operator card and associated personal identification number (PIN) will be issued to a successful applicant as proof of licensure by the Breath Alcohol Program Manager.

 

3702.6             An operator license is valid for two years unless deactivated or suspended by the Breath Alcohol Program Manager.

 

3703                RENEWAL OF CURRENT OPERATOR LICENSURE

 

3703.1             Renewal of an operator licensure requires satisfactory completion of a course of instruction approved by the Breath Alcohol Program Manager and as defined in the Operator’s Manual, including:

 

(a)                An overview of any changes to the manuals or procedures for testing; and

 

(b)               A practical examination.

 

3703.2             Upon license renewal a new breath operator card and associated PIN will be issued that is valid for a period of two (2) years unless deactivated or suspended by the Breath Alcohol Program Manager.

                       

3703.3             If an operator fails to renew the license in accordance with the Operator’s Manual, the previously issued operator card and associated PIN will be deactivated.

 

3704                OPERATOR LICENSURE DEACTIVATION AND SUSPENSION

 

3704.1             Deactivation shall be initiated by the licensed operator in the event of voluntary surrender of licensure in accordance with Operator’s Manual.

 

3704.2             An operator’s license shall be deactivated by the Breath Alcohol Program Manager in the following situations:

 

(a)                Failure to renew;

 

(b)               Change in employment under which the licensure was acquired;

 

(c)                Failure to comply with protocols in the Operator’s Manual; or

 

(d)               Upon receipt of notification by the Breath Alcohol Program Manager that an operator’s arrest powers have been suspended by MPD.

 

3704.3             The Breath Alcohol Program Manager shall suspend an operator’s license if an operator:

 

(a)                Intentionally disregard or violates these  regulations;

 

(b)               Falsely or deceitfully obtains licensure;

 

(c)                Engages in malfeasance or noncompliance with any provision of these regulations; or

 

(d)               Performs his duties in an unreliable or incompetent manner.

 

3704.4             An operator with a suspended or deactivated license will not be permitted to operate an evidentiary breath testing instrument.

 

3705                REQUIREMENTS TO BE A LICENSED TECHNICIAN

 

3705.1             The minimum qualifications for certification as a licensed technician are:

 

(a)                A baccalaureate degree from an accredited college or university with a major in chemistry, a major in another scientific field with sufficient semester hours in chemistry, or other qualifications as determined by the Breath Alcohol Program Manager;

 

(b)               Employment with the OCME; and

(c)                Satisfactory completion of a course of instruction as set forth in the Quality Manual.

 

3706                TECHNICIAN LICENSURE ACTIVATION AND SUSPENSION

 

3706.1             Technician licensure shall be deactivated at the discretion of the Breath Alcohol Program Manager if the technician is no longer actively engaged in the breath alcohol testing program.

 

3706.2             Technician licensure shall be suspended by the Breath Alcohol Program Manager for malfeasance, falsely or deceitfully obtaining certification, or purposeful failure to carry out the responsibilities set forth in this title.

 

3706.3             A technician whose license has been suspended may file an appeal in accordance with the procedures established in the District Personnel Manual.

 

3707                ACCEPTABLE RANGES FOR EVIDENTIARY BREATH TESTS

 

3707.1             The reference standard used to conduct an accuracy check of an evidentiary instrument must agree within ±.005 grams of alcohol per 210 liters of air of the predicted value.

 

3707.2             If the instrument’s accuracy check falls outside of the acceptable range as defined in Subsection 3707.1, the evidentiary instrument shall be disabled and licensed operators will not be able to administer evidential breath tests with that instrument.

 

3707.3             Duplicate breath specimens shall be collected and the analytical results for the consecutive breath specimens shall correlate within  ±0.02 grams of alcohol per 210 liters of breath/ of each other.

 

3708                DEFINITIONS

 

3708.1             For the purposes of this section, the following terms shall have the meanings ascribed below:

                   

“Accuracy Check” – The evaluation made by the breath test instrument of a reference standard with a predicted value which occurs during the evidentiary breath test sequence.

 

“Breath Alcohol Program Manager” - The OCME employee designated by the Chief Medical Examiner for the District of Columbia to oversee licensure of operators and technicians and certification of instruments used by licensed operators to test the alcohol content of breath.

“Certification”- The process by which reference standards are evaluated and a series of tests performed at least every one-hundred and eighty days (180) to verify accuracy of the breath testing instrument.

 

“Evidentiary Instrument” - An analytical breath alcohol measuring device which has been issued a “Certificate of Instrument Accuracy” as defined by the Quality Manual and has been placed into field service used to collect evidence.

 

“Licensed Operator” - An operator who is licensed by the Breath Alcohol Program Manager to perform evidentiary breath tests.

 

“Licensed Technician”- A person designated by the Breath Alcohol Program Manager to be responsible for the certification, calibration and maintenance of  breath testing instrument.

 

“Operator License”- A certificate issued by the Breath Alcohol Program Manager.

 

“Operator’s Manual” – The “Basic Training Program for Breath Alcohol Operators”, training manual maintained by the Breath Alcohol Program Manager.

 

“Predicted Value” – A value produced by the evidentiary instrument for each evidentiary breath test based upon the barometric pressure compensation and the reference standard value.

 

“Quality Manual” – The “Quality Management Manual Breath Alcohol Program’, training manual maintained by the Breath Alcohol Program Manager.

 

“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 evidentiary breath tests is 0.082g of alcohol per 210L of air.

 

“Subject Test” – The evidentiary breath alcohol test which meets the criteria defined in the Operator’s Manual.

 

Comments on these rules should be submitted in writing to Max M. Houck, PhD., Director, Department of Forensic Sciences, Government of the District of Columbia, 401 E Street, SW, 4^th Floor, Washington DC 20024, via telephone on [phone], via email at [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 these rules are available from the above address.