Ala. Admin. Code r. 370-1-1-.01
Current through Register Vol. 42, No. 8, May 31, 2024
Section 370-1-1-.01 - Admissibility Rule For The Evidential Breath Alcohol Test Method(1) Purpose. This rule addresses the statutory elements required for the admissibility of evidence obtained from Breath Alcohol Testing Instruments. This rule contains the METHOD, as referred to by § 32-5A-194Code of Ala. 1975, as amended, which insures and verifies that each individual Breath Alcohol Test is performed accurately and reliably. IN EVENT THAT ONE OF THESE REQUIREMENTS IS NOT FULFILLED, BREATH ALCOHOL TESTING EVIDENCE MAY STILL BE OFFERED THROUGH TRADITIONAL EVIDENTIARY PREDICATE as approved of in Ex parte Mayo, 652 So. 2d 201 (Ala. 1994).(2) Definitions and Abbreviations. (a) Draeger 7110 MKIII 1.Acceptable Breath Sample. For the purpose of this rule the subject must provide the Draeger Alcotest 7110 MKIII with a breath sample of sufficient volume and duration, as required by the software to be accepted for analysis. Software versions prior to and including version 3.24 require the subject to provide a minimum of 1.5 liters of breath, for a minimum of 4.5 seconds. Software versions 3.25 or later require the subject to provide a minimum of 1.3 liters of breath, for a minimum of 4.0 seconds.2.Accuracy Check Fail. When the Calibration Check results are outside the programmed parameters of the Draeger Alcotest 7110 MKIII, the instrument will abort the testing sequence.3.Admin. Breath Temperature Correction. Administrative Breath Temperature Correction can result in an administrative lowering of the reported Breath Alcohol Result. When the Draeger Alcotest 7110 MKIII determines a subject's Breath Temperature is not 34.0°C an adjustment to the reported value will be made. When the Breath Temperature is above 34.0°C the adjustment will result in a lower reported Breath Alcohol Concentration.4.Alcohol. For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.5.Air Blank Check. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument verifies that the analytical pathway is free of contamination.6.Ambient Air Check. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument verifies that the air used to purge the analytical pathway was free of contamination.7.Ambient Air Fail. The Draeger Alcotest 7110 MKIII will terminate a Breath Testing Sequence when the detector systems respond to ethanol or other substances in the room air.8.Blowing Not Allowed. Only when the "PLEASE BLOW" message appears will the Draeger Alcotest 7110 MKIII accept a subject breath sample. Any breath sample provided to the Draeger Alcotest 7110 MKIII at any time other than when prompted to do so will not be accepted by the instrument.9.Blowing Time Too Short. When a breath sample is provided to the Draeger Alcotest 7110 MKIII that is sufficient in volume but deficient in duration, as required by the software, the instrument will not accept the sample.10.Br-Temp Meas Not Ok. Breath Temperature Measurement Not Ok occurs when the difference between the two Breath Temperature thermistor values is outside the specified range for a single breath sample.11.Breath Alcohol Test. For the purpose of this rule, two (2) acceptable breath samples in conjunction with two diagnostic checks and two acceptable calibration checks shall constitute a Breath Alcohol Test.12.Calibration. The purpose of the calibration is to define the appropriate parameters to allow the instrument to accurately quantitate alcohol in a breath sample. The Draeger Alcotest 7110 MKIII does not calibrate itself at the time of the test; calibration is performed at the Alabama Department of Forensic Sciences laboratory and subsequently verified at the time of the test with dry gas standards.13.Calibration Check. For the purpose of this rule, a calibration check is the automated process whereby the Draeger Alcotest 7110 MKIII samples and tests a known dry gas standard to verify the instrument's acceptable calibration.14.Certificate of Analysis. For the purpose of this rule, the Certificate of Analysis is the document generated by the Draeger Alcotest 7110 MKIII for introduction of Breath Alcohol Test results to the Courts. By design, when the Certificate of Analysis indicates a numerical value for the subject's Breath Alcohol Concentration, the Certificate of Analysis is confirmation of successful method completion.15.Chemical Analysis. For the purpose of this rule, chemical analysis is the separation of a substance into its constituent elements to determine either their nature or their portions. The goal as set forth in § 32-5A-194Code of Ala. 1975, as amended, is the chemical analyses of a person's breath to determine the presence and quantity of alcohol (ethanol).16.Data Pack. The Data Pack contains the supporting data for the Certificate of Analysis as referred to at the bottom of that document. By design, the Data Pack along with the Subject Mis-Try file, and when needed the IR Curves, EC Profile Plot, and Flow Profile Plot, constitute "...full information concerning the test or tests shall be made available to him or his attorney..." as referred to by § 32-5A-194(a) (4) Code of Ala. 1975, as amended.17.Draeger. For the purpose of this rule, Draeger is the appropriate English translation of the German name Drager.18.Deprivation Period. For the purpose of the METHOD as referred to by § 32-5A-194Code of Ala. 1975, as amended, prior to submitting to a Breath Alcohol Test a person should not be allowed to put anything in their mouth for at least 20 minutes.19.EC. For the purpose of this rule, EC will be the abbreviation for the electrochemical cell detector utilized by the Draeger Alcotest 7110 MKIII.20.EC Profile Plot. For the purpose of this rule, the EC Profile Plot is a plot utilized by the Draeger Alcotest 7110 MKIII that depicts EC Detector signal for a given breath sample.21.Flow Profile Plot. For the purpose of this rule, the Flow Profile Plot is a plot utilized by the Draeger Alcotest 7110 MKIII that depicts breath sample flow into the instrument.22.Forensic Edits. In the event an operator incorrectly input clerical data as requested by the Breath Alcohol Testing method, this information can be corrected by the following procedure: the operator should strike through the incorrect data (preferably a single strike leaving the original data legible), insert the correct data, and initial and date the correction.23.Interference. When the detector systems of the Draeger Alcotest 7110 MKIII respond to a substance other than alcohol (ethanol, ethyl alcohol), the instrument will terminate the test.24.IR. For the purpose of this rule, IR will be the abbreviation for the infrared detector utilized by the Draeger Alcotest 7110 MK III.25.IR Curve. For the purpose of this rule, the IR Curve is a plot of the infrared detector data utilized by the Draeger Alcotest 7110 MK III for a given breath sample.26.Method. For the purpose of this rule a method is an orderly and systematic approach to accomplishing a goal. The goal as set forth in § 32-5A-194Code of Ala. 1975, as amended, is the chemical analyses of a person's breath to determine the presence and quantity of alcohol (ethanol). Therefore the method refers only to those tasks, manual or automated, which occur at the time of the breath test and result in accurately identifying and quantifying the amount of alcohol on a particular person's breath. The method in its entirety is performed and confirmed at the time of the breath test. 27.Minimum Volume Not Achieved. When a breath sample is provided to the Draeger Alcotest 7110 MKIII that is deficient in volume, as required by the software, the instrument will reject the sample.28.Mouth Alcohol. When a breath sample contains a measurable amount of alcohol originating from the mouth, and is higher in concentration than the end expiratory air, the Draeger Alcotest 7110 MKIII will determine the sample to contain residual mouth alcohol. Once the presence of residual mouth alcohol has been determined the instrument will suspend the testing sequence for twenty (20) minutes. The testing sequence will resume at the end of the twenty-minute wait preserving all clerical data entries.29.Out of Measuring Range. When the alcohol concentration of a breath sample exceeds 0.45 g/210L the instrument will abort the testing sequence.30.Operator. For the purpose of this rule, an operator is an employee of a law enforcement agency possessing a valid permit (active permit number) and who is in control of the Draeger Alcotest 7110 MKIII during a testing sequence. The operator also acts as a "FACT" witness with regard to instrument operation in any litigation arising from the breath test. As stated by the Court in Stubstad v. City of Orange Beach, 575 So.2d 1240 (Ala.Cr.App. 1991), the operator need not be an expert on the mechanical functioning of the instrument.31.Permit. For the purpose of this rule, a permit is an electronic mechanism for controlling access to a Breath Alcohol Testing Instrument through a unique operator permit number. Confirmation of an operator's active status as well as pending expiration date is designated on the Certificate of Analysis.32.Purging. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument cycles fresh air through the instrument analysis path to cleanse the pathway of the last sample analyzed.33.Refusal. The operator may elect to end an incomplete test by declaring the subject has refused to provide two complete and acceptable samples. Refusal indicates the operator believes the subject to be intentionally obstructing the collection of evidence via the breath sample. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument cannot make the decision for the operator that any unacceptable subject breath sample or sequence of unacceptable subject breath samples constitutes a subject refusal. After each unacceptable subject breath sample the operator has the opportunity to determine by which of the following three options the testing sequence will proceed: <1> REFUSAL <2> UNABLE <3> RESTART TEST. In event circumstances require abruptly ending the testing sequence with a refusal, the operator may select <R> at the "PLEASE BLOW" prompt.34.Standard Gas Supply. Failure of one of the two dry gas samples to be delivered to the Draeger Alcotest 7110 MKIII for analysis will result in the termination of the testing sequence.35.Subject "Mis-Try". A subject "Mis-Try" is a breath sample that failed to meet the acceptable criteria as determined by the Draeger Alcotest 7110 MKIII. A record of the attempted breath sample is preserved in the Subject "Mis-Try" file.36.Unable. The operator may elect to end an incomplete test by declaring the subject is unable to provide two complete and acceptable samples. Unable indicates the operator believes the subject to be incapable of providing the required breath sample and thereby is not intentionally obstructing the collection of evidence via the breath sample. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument cannot assess the subject's physical condition for the operator. After each unacceptable subject breath sample the operator has the opportunity to determine by which of the following three options the testing sequence will proceed: <1> REFUSAL <2> UNABLE <3> RESTART TEST.(b) Intoximeters Intox DMT Dual Sensor 1.Acceptable Breath Sample. For the purpose of this rule the subject must provide the Intoximeters Intox DMT Dual Sensor with a breath sample of sufficient volume and duration, as required by the software to be accepted for analysis. The software on the Intox DMT requires the subject to provide a minimum of 1.3 liters of breath, for a minimum of 4.0 seconds.2.Admin. Breath Temperature Correction. The Intoximeters Intox DMT Dual Sensor applies a correction to the results of every breath test to account for variations in breath temperature. This correction results in a lower reported result.3.Administrative Test/Admin Test. Non evidential breath test to be used in instances other than incident to a DUI arrest. For example, a pre-release test performed on an individual arrested for DUI.4.Alcohol. For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.5.Air Blank Check. The Intoximeters Intox DMT Dual Sensor Breath Alcohol Testing Instrument verifies that the analytical pathway is free of contamination.6.Ambient Air Check. The Intoximeters Intox DMT Dual Sensor Breath Alcohol Testing Instrument verifies that the air used to purge the analytical pathway is free of contamination.7.Ambient Fail. The Intoximeters Intox DMT Dual Sensor Breath Alcohol Testing Instrument will abort the test if it detects ethanol or other contaminants in the room air during the initial purge.8.Blank Error. The Intoximeters Intox DMT Dual Sensor Breath Alcohol Testing Instrument will abort the test if it detects ethanol or other contaminants in the analytical pathway.9.Breath Alcohol Test. For the purpose of this rule, two (2) acceptable breath samples in conjunction with three diagnostic checks and two acceptable standard checks shall constitute a Breath Alcohol Test.10.Breath Result > .45 g/210L. The Intoximeters Intox DMT Dual Sensor will abort the test if the result from a subject breath sample exceeds 0.450 g/210L.11.Calibration. The purpose of calibration is to define the appropriate parameters to allow the instrument to accurately quantitate alcohol in a breath sample. The Intoximeters Intox DMT Dual Sensor does not calibrate itself at the time of the test; calibration is performed at the Alabama Department of Forensic Sciences laboratory and subsequently verified at the time of the test.12.Certificate of Analysis. For the purpose of this rule, the Certificate of Analysis is the document generated by the Intoximeters Intox DMT Dual Sensor for introduction of Breath Alcohol Test results to the Courts. By design, when the Certificate of Analysis indicates a numerical value for the subject's Breath Alcohol Concentration, the Certificate of Analysis is confirmation of successful method completion.13.Chemical Analysis. For the purpose of this rule, chemical analysis is the separation of a substance into its constituent elements to determine either their nature or their portions. The goal as set forth in § 32-5A-194, Code of Ala. 1975, as amended, is the chemical analyses of a person's breath to determine the presence and quantity of alcohol (ethanol).14.Data Pack. The Data Pack contains the supporting data for the Certificate of Analysis as referred to at the bottom of that document. By design the Data Pack along with the IR Curves, Flow Profile Plot, and the EC Profile Plot constitute "...full information concerning the test or tests shall be made available to him or his attorney..." as referred to by § 32-5A-194(a)(4), Code of Ala. 1975, as amended.15.Diagnostic Check. The Intoximeters Intox DMT Dual Sensor Breath Alcohol Testing Instrument verifies that the operational parameters are within range with each test.16.Diagnostic Check Failed. The Intoximeters Intox DMT Dual Sensor Breath Alcohol Testing Instrument will abort the test if one of the operational parameters falls outside the acceptable range.17.Deprivation Period. For the purpose of the METHOD as referred to by § 32-5A-194, Code of Ala. 1975, as amended, prior to submitting to a Breath Alcohol Test a person should not be allowed to put anything in their mouth for at least 20 minutes.18.EC. For the purpose of this rule, EC will be the abbreviation for the electrochemical cell detector utilized by the Intoximeters Intox DMT Dual Sensor.19.EC Profile Plot. For the purpose of this rule, the EC Profile Plot is a plot generated by the Intoximeters Intox DMT Dual sensor that depicts the EC detector signal for a given breath sample.20.Flow Profile Plot. For the purpose of this rule, the Flow Profile Plot is a plot generated by the Intoximeters Intox DMT Dual Sensor that depicts breath sample flow into the instrument. This plot is included on the same graph as the IR Curves.21.Fuel Cell. For the purpose of this rule Fuel Cell is another term used to describe the electrochemical cell detector utilized by the Intoximeters Intox DMT Dual sensor.22.Forensic Edits. In the event an operator incorrectly input clerical data as requested by the Breath Alcohol Testing method, this information can be corrected by the following procedure: the operator should strike through the incorrect data (preferably a single strike leaving the original data legible), insert the correct data, and initial and date the correction.23.Interference Detected. When the detector systems of the Intoximeters Intox DMT Dual Sensor respond to a substance other than alcohol (ethanol, ethyl alcohol), the instrument will abort the test.24.Invalid Sample. When a breath sample contains a measurable amount of alcohol originating from the mouth, and is higher in concentration than the end expiratory air, the Intoximeters Intox DMT Dual Sensor will determine the sample to contain residual mouth alcohol and thus declare it invalid. Once the presence of residual mouth alcohol has been determined the instrument will suspend the testing sequence for twenty (20) minutes. The testing sequence will resume at the end of the twenty-minute wait preserving all clerical data entries.25.IR. For the purpose of this rule, IR will be the abbreviation for the infrared detector utilized by the Intoximeters Intox Dual Sensor.26.IR Curve. For the purpose of this rule, the IR Curve is a plot of the infrared detector signal generated by the Intoximeters Intox DMT Dual Sensor for a given breath sample. The plot is included on the same graph as the Flow Profile Plot.27.Method. For the purpose of this rule a method is an orderly and systematic approach to accomplishing a goal. The goal as set forth in § 32-5A-194, Code of Ala. 1975, as amended, is the chemical analyses of a person's breath to determine the presence and quantity of alcohol (ethanol). Therefore the method refers only to those tasks, manual or automated, which occur at the time of the breath test and result in accurately identifying and quantifying the amount of alcohol on a particular person's breath. The method in its entirety is performed and confirmed at the time of the breath test.28.Operator. For the purpose of this rule, an operator is an employee of a law enforcement agency possessing a valid permit (active permit number) and who is in control of the Intoximeters Intox DMT Dual Sensor during a testing sequence. The operator also acts as a "FACT" witness with regard to instrument operation in any litigation arising from the breath test. As stated by the Court in Stubstad v. City of Orange Beach, 575 So.2d 1240 (Ala.Cr.App. 1991), the operator need not be an expert on the mechanical functioning of the instrument.29.Permit. For the purpose of this rule, a permit is an electronic mechanism for controlling access to a Breath Alcohol Testing Instrument through a unique operator permit number. Confirmation of an operator's active status as well as pending expiration date is designated on the Certificate of Analysis.30.Purge Error. When the Intoximeters Intox DMT Dual Sensor detects contaminants in the air used to purge the analytical pathway the test will be aborted.31.Purging. The Intoximeters Intox DMT Dual Sensor Breath Alcohol Testing Instrument cycles fresh air through the instrument analysis path to cleanse the pathway of the last sample analyzed.32.Sample Agreement Error. The Intoximeters Intox DMT Dual Sensor requires that the results from the two required samples agree within 0.020 g/210L. In the event that the results from two samples do not agree within 0.020 g/210L, the Intoximeters Intox DMT Dual Sensor will finish the test and start a new test retaining all clerical data.33.Standard Check. The Intoximeters Intox DMT Dual Sensor verifies calibration at two different concentrations during the breath alcohol test.34.Standard Out of Range. When the calibration verification results are outside the programmed parameters of the Intoximeters Intox DMT Dual Sensor, the instrument will abort the testing sequence.35.Refusal. The operator may elect to end an incomplete test by declaring the subject has refused to provide two complete and acceptable samples. Refusal indicates the operator believes the subject to be intentionally obstructing the collection of evidence via the breath sample. The Intoximeters Intox DMT Dual Sensor Breath Alcohol Testing Instrument cannot make the decision for the operator that any unacceptable subject breath sample or sequence of unacceptable subject breath samples constitutes a subject refusal. The Intoximeters Intox DMT Dual Sensor Breath Alcohol Testing Instrument allows the subject three minutes to provide an adequate sample. If the subject fails to provide an adequate sample in the allotted time the Operator is prompted to select either <Refused> or <Unable>. In the event that circumstances require abruptly ending the testing sequence with a refusal, the operator may select <R> at the "PLEASE BLOW" prompt.36.Subject Mis-Try. A subject "Mis-Try" is a breath sample that failed to meet the acceptable criteria as determined by the Intoximeters Intox DMT Dual Sensor. A record of the attempted breath sample is preserved on the Flow Profile Plot which is on the same graph as the IR Curves.37.Unable. The operator may elect to end an incomplete test by declaring the subject is unable to provide two complete and acceptable samples. Unable indicates the operator believes the subject to be incapable of providing the required breath sample and thereby is not intentionally obstructing the collection of evidence via the breath sample. The Intoximeters Intox DMT Dual Sensor Breath Alcohol Testing Instrument cannot assess the subject's physical condition for the operator. The Intoximeters Intox DMT Dual Sensor Breath Alcohol Testing Instrument allows the subject three minutes to provide an adequate sample. If the subject fails to provide an adequate sample in the allotted time the Operator is prompted to select either <Refused> or <Unable>. In the event that circumstances require abruptly ending the testing sequence with a refusal, the operator may select <R> at the "PLEASE BLOW" prompt.(3) Approved Evidential Breath Alcohol Instrument List.(a) Alcotest 7110 MKIII, Draeger Safety, Inc., Durango CO. For the purpose of this rule, variations or enhancements that do not have any bearing on the alcohol measuring capability of the instrument, such as the addition of a modem designated as an Alcotest 7110 MKIII C, are approved.(b) Intoximeters Intox DMT Dual Sensor, Intoximeters Inc., St. Louis, MO. For the purpose of this rule, variations or enhancements that do not have any bearing on the alcohol measuring capability of the instrument are approved.(4) Approved Evidential Breath Alcohol Test Method.(a) Draeger Alcotest 7110 MKIII1. The method of operation of the Draeger Alcotest 7110 MKIII is software driven and controlled so as not to be influenced by operator technique. The method requires the operator to input the following clerical data (steps 1-18) as prompted. It is appropriate for the operator to enter a "-" for steps 6.(i), 6.(ii), 6(iii), 6.(iv), 6.(v), and 10 - 16 when the requested information cannot be obtained. Omission of an entry in any field will prevent the completion of the Breath Alcohol Testing method. (i) PERMIT NO. (NUMBER): The operator must enter and confirm his/her unique Draeger permit number.(ii) <1> DUI <2> ADMIN <3> DEMO: The operator must select the type of testing routine to be administered to the subj ect.(iii) ENTER DRY GAS STND (STANDARD) #1 PRESSURE: The operator must observe and record the pressure from the gas regulator gauge on dry gas standard #1 (0.020 g/210L ethanol standard). It should be noted that the gas pressure has no bearing on the analytical result obtained from the DUI testing routine.(iv) ENTER DRY GAS STND (STANDARD) #2 PRESSURE: The operator must observe and record the pressure from the gas regulator gauge on dry gas standard #2 (0.080 g/210L ethanol standard). It should be noted that the gas pressure has no bearing on the analytical result obtained from the DUI testing routine.(v) 20 MIN (MINUTE) DEPRIVATION PERIOD: The operator must confirm that the subject has been under the control of the arresting officer, the operator, and/or other employee of a law enforcement agency for a minimum of 20 minutes. Enter "Y" for yes or "N" for no.(vi) ARREST OFFICER SAME AS OPERATOR: The operator must designate whether the breath test operator is or is not the arresting officer. Enter "Y" for yes or "N" for no. If the arresting officer is not the breath test operator then the following information identifying the arresting officer will also be required.(I) ARREST OFFICERS LAST NAME: The operator must enter the last name of the arresting officer.(II) ARREST OFFICERS FIRST NAME: The operator must enter the first name of the arresting officer.(III) ARREST OFFICERS MIDDLE INITIAL: The operator must enter the middle initial of the arresting officer.(IV) ARREST OFFICERS IDENTIFICATION NUMBER: The operator must enter the agency identification number of the arresting officer.(V) ARREST OFFICERS AGENCY: The operator must enter the agency of the arresting officer.(vii) TIME OF OFFENSE: The operator must enter the date and time of the offense using the following format <MM/DD/YYYY_HH:MM>.(viii) COUNTY OF OFFENSE: The operator must enter the county in which the offense occurred.(ix) SUBJECT'S UTC (UNIFORM TRAFFIC COMPLAINT NUMBER): The operator must enter the subject's Uniform Traffic Complaint number.(x) SUBJECT LAST NAME: The operator must enter the subject's last name.(xi) SUBJECT FIRST NAME: The operator must enter the subject's first name.(xii) SUBJECT MIDDLE INIT (INITIAL): The operator must enter the subject's middle initial.(xiii) SUBJECT STREET ADDR/APT (ADDRESS/APARTMENT): The operator must enter the subject's street or apartment address.(xiv) SUBJECT TOWN/CITY: The operator must enter the subject's town or city of residence.(xv) SUBJECT STATE: The operator must enter the subject's state of residence using appropriate two-letter designation.(xvi) SUBJECT DL# (DRIVER'S LICENSE NUMBER) OR SS# (SOCIAL SECURITY NUMBER): The operator must enter the subject's driver's license number, Alabama file number, social security number or Alabama I.D. number.(xvii) SUBJECT <M/F> (MALE/FEMALE): The operator must designate the subject's gender using "M" for male and "F" for female.(xviii) SUBJECT DOB (DATE OF BIRTH): The operator must designate the subject's date of birth using the format <MM/DD/YYYY;. An entry of 01/01/1900 will be used when the subject's date of birth cannot be obtained.2. Upon completion of clerical data entry the Draeger Alcotest 7110 MKIII continues the Breath Alcohol Testing method by performing or displaying the following automated steps or messages. (iv) ACCURACY CHECK (0.020 g/210L)(viii) INSERT MOUTHPIECE, PRESS BUTTON (Operator Task)(x) PLEASE BLOW (First Subject Sample)(xviii) AMBIENT AIR CHECK(xx) INSERT MOUTHPIECE, PRESS BUTTON (Operator Task)(xxii) PLEASE BLOW (Second Subject Sample)(xxviii) ACCURACY CHECK (0.080 g/210L)(b) Intoximeters Intox DMT Dual Sensor 1. The method of operation of the Intoximeters Intox DMT Dual Sensor is software driven and controlled so as not to be influenced by operator technique. The method requires the operator to input certain clerical data in the appropriate box shown on the instrument screen. (1-16 below) It is appropriate for the operator to enter a "-" when the requested information cannot be obtained. Omission of an entry in any field will prevent the completion of the Breath Alcohol Testing method. (i) Permit Number or Password: The Operator must enter and confirm his/her unique permit number after pressing the Start Test button to proceed with a test. Alternatively one of the ADFS scientists can enter their permit number and a password which will allow them access to several functions including running an evidential breath alcohol test.(ii) Scan Driver's License? The Intoximeters Intox DMT Dual Sensor comes equipped with a card reader. The operator can choose to scan the subject's driver's license at this time and the instrument will populate the corresponding fields automatically. In the event that the subject does not have a license the operator must enter the pertinent information in sections 11.-16.(iii) Same as Operator: If the Arresting Officer is the same as the Operator then the Operator can check the box "Same as Operator" and the Operator's information will be automatically populated.(iv) If the Arresting Officer is not the Operator then the Operator should input the following information.(I) Name (First, Middle Initial, Last): Operator will enter the Arresting Officer's first name, middle initial, and last name here.(II) Badge #: The Operator should input the Arresting Officer's badge number.(III) Agency: The Operator should input the Arresting Officer's Agency.(v) Offense Information: Date (MM/dd/yyyy); the Operator will input the date of offense here.(vi) Offense Information: Time (24 Hour); the Operator will input the time of offense here using a 24-hour clock in the HH:mm format.(vii) Offense Information: UTC; the Operator will input the ticket number here if it is known.(viii) Offense Information: County; the Operator will select the county of offense from the drop-down menu.(ix) Offense Information: 20 Min. Deprivation Period; the Operator must affirm that there has been 20 minutes between the time of offense and the time of test from the drop-down menu.(x) Subject Information: Name (F/M/L); the Subject's first name, middle initial, and last name are entered here.(xi) Subject Information: Street/Apt/Box; the subject's street address will be entered here.(xii) Subject Information: City/Town; the city / town in which the subject resides is entered here.(xiii) Subject Information: State; the state in which the subject resides is entered here.(xiv) Subject Information: Sex; the Operator must select the gender of the subject from the pull-down menu.(xv) Subject Information: Date of Birth (MM/dd/yyyy): The Subject's date of birth is entered here. An entry of 01/01/1900 will be used when the subject's date of birth cannot be obtained. (xvi) Subject Information: License or SS Number; the Subject's Driver's License number or Social Security Number is entered here.2. Upon completion of clerical data entry the Intoximeters Intox DMT Dual Sensor continues the Breath Alcohol Testing method by performing or displaying the following automated steps or messages.(v) EXTERNAL STANDARD (0.020 g/210L)(ix) DID SUBJECT REFUSE? Y/N(xvii) DID SUBJECT REFUSE? Y/N(xviii) INSERT MOUTHPIECE(xxiv) EXTERNAL STANDARD (0.080 g/210L OR 0.150 g/210L)(xxviii) DIAGNOSTIC CHECK(5) Report of Breath Alcohol Test Result.(a) Draeger 7110 MKIII C 1. The Certificate of Analysis produced for each individual Breath Alcohol Test is confirmation of successful METHOD completion when an analytical result (number) is obtained. For a Breath Alcohol Test result to be reported, indicating successful METHOD completion, the following steps must be performed. (i) "DIAGNOSTIC CHECKS BEFORE AND AFTER OK": An automated internal diagnostic check is performed by the Draeger Alcotest 7110 MKIII one hundred twenty-eight (128) times per second. For each Breath Alcohol Test, the Draeger Alcotest 7110 MKIII stores in memory a record of a single diagnostic "Snap Shot" before the first subject sample is collected and after the second subject sample is collected.(ii) "CALIBRATION CHECKS BEFORE AND AFTER OK": An automated calibration check is performed before the first subject sample is collected and after the second subject sample is collected to verify the calibration of the Draeger Alcotest 7110 MKIII at the time of the breath test. A 0.020 g/210L ethanol standard is introduced into the instrument before the first subject sample is collected. An acceptable result of 0.015 to 0.025 g/210L will allow the Breath Alcohol Test to proceed. A 0.080 g/210L ethanol standard is introduced into the instrument after the second subject sample is collected. An acceptable result of 0.076 to 0.084 g/210L must be obtained before the results of the Breath Alcohol Test will be reported. When results obtained from the calibration checks are not within the stated acceptable ranges, the "Certificate of Analysis" obtained from the Draeger Alcotest 7110 MKIII will indicate ACCURACY CHECK FAIL and no numerical result will be reported at the time of the breath test.(iii) "INSPECTION BEFORE AND AFTER TEST OK": Completed Diagnostic Checks and Calibration Checks verify instrument accuracy and reliability and therefore constitute a time of test inspection. When a condition exist which prevents the completion of either the diagnostic checks or the calibration checks the "Certificate of Analysis" will not bear this statement.(iv) "THE SUBJECT MUST COMPLETE A DEPRIVATION PERIOD OF AT LEAST TWENTY MINUTES BEFORE PROVIDING THE FIRST BREATH SAMPLE". An operator must attest that reasonable efforts were made by an employee of a law enforcement agency to deprive the subject of putting potentially interfering substances in their mouth. In event the operator becomes aware of potentially interfering substances in the mouth, the deprivation period should be restarted.(v) "TWO ACCEPTABLE BREATH SAMPLES WERE ANALYZED, THE LOWEST RESULT IS REPORTED". The subject must provide two acceptable breath samples for analysis. The lowest alcohol result generated from each breath sample must agree within 0.020 g/210L of breath. If the alcohol results from the two breath samples do not agree within 0.020 g/210L of breath, the instrument will begin a second breath sample collection sequence. Failure to provide two (2) acceptable breath samples for the second breath sampling sequence will constitute a refusal of the whole test. When the results of two acceptable breath samples do agree within 0.020 g/210L of breath, the Draeger Alcotest 7110 MKIII will report the lowest result truncated to the second decimal place.(vi) When the subject provides a breath sample that does not meet the minimum acceptable criteria or when not prompted to do so, one of the following errors will be recorded in the Subject "Mis-Try" file: "Minimum Volume Not Achieved", "Blowing Time Too Short", or "Blowing Not Allowed". When the Draeger Alcotest 7110 MKIII determines a sample or samples to be unacceptable the operator has the opportunity to determine by which of the following three options the testing sequence will proceed: <1> REFUSAL <2> UNABLE <3> RESTART TEST.2. Four copies of the Certificate of Analysis will be generated each bearing the statement "SUPPORTING DATA FOR THIS DOCUMENT IS AVAILABLE UPON WRITTEN REQUEST TO THE ALABAMA DEPARTMENT OF FORENSIC SCIENCES, IMPLIED CONSENT UNIT". The supporting data or information as referred to in § 32-5A-194(a)(4)Code of Ala. 1975, as amended, for the Certificate of Analysis consists of the "Data Pack", "Subject Mis-Try File", and when needed IR Curves, EC Profile Plot, and Flow Profile Plot.(b) Intoximeters Intox DMT Dual Sensor 1. The Certificate of Analysis produced for each individual Breath Alcohol Test is confirmation of successful METHOD completion when an analytical result (number) is obtained. For a Breath Alcohol Test result to be reported, indicating successful METHOD completion, the following steps must be performed. (i) "DIAGNOSTIC CHECKS BEFORE AND AFTER OK": An automated internal diagnostic check is performed by the Intoximeters Intox DMT Dual Sensor during every breath test. For each Breath Alcohol Test, the Intoximeters Intox DMT Dual Sensor stores in memory a record of a single diagnostic "Snap Shot" before the first subject sample is collected, between the first and second subject samples and after the second subject sample is collected.(ii) "CALIBRATION CHECKS BEFORE AND AFTER OK": An automated calibration check is performed before the first subject sample is collected and after the second subject sample is collected to verify the calibration of the Intoximeters Intox DMT Dual Sensor at the time of the breath test. A 0.020 g/210L ethanol standard is introduced into the instrument before the first subject sample is collected. An acceptable result of 0.015 to 0.025 g/210L will allow the Breath Alcohol Test to proceed. A subject sample result of less than 0.150 g/210L will result in the introduction of a 0.080 g/210L ethanol standard into the instrument after the second subject sample is collected. An acceptable result of 0.076 to 0.084 g/210L must be obtained before the results of the Breath Alcohol Test will be reported. A subject sample result of 0.150 g/210L or higher will result in the introduction of a 0.150 g/210L ethanol standard into the instrument after the second subject sample is collected. An acceptable result of 0.1425 to 0.1575 g/210L must be obtained before the results of the Breath Alcohol Test will be reported. When results obtained from the calibration checks are not within the stated acceptable ranges, the "Certificate of Analysis" obtained from the Intoximeters Intox DMT Dual Sensor will indicate STANDARD OUT OF RANGE and no numerical result will be reported at the time of the breath test.(iii) "INSPECTION BEFORE AND AFTER TEST OK": Completed Diagnostic Checks and Calibration Checks verify instrument accuracy and reliability and therefore constitute a time of test inspection. When a condition exist which prevents the completion of either the diagnostic checks or the calibration checks the "Certificate of Analysis" will not bear this statement.(iv) "THE SUBJECT MUST COMPLETE A DEPRIVATION PERIOD OF AT LEAST TWENTY MINUTES BEFORE PROVIDING THE FIRST BREATH SAMPLE". An operator must attest that reasonable efforts were made by an employee of a law enforcement agency to deprive the subject of putting potentially interfering substances in their mouth. In the event the operator becomes aware of potentially interfering substances in the mouth, the deprivation period should be restarted.(v) "TWO ACCEPTABLE BREATH SAMPLES WERE ANALYZED, THE LOWEST RESULT IS REPORTED". The subject must provide two acceptable breath samples for analysis. The lowest alcohol result generated from each breath sample must agree within 0.020 g/210L of breath. If the alcohol results from the two breath samples do not agree within 0.020 g/210L of breath, the instrument will begin a second breath sample collection sequence. Failure to provide two (2) acceptable breath samples for the second breath sampling sequence will constitute a refusal of the whole test. When the results of two acceptable breath samples do agree within 0.020 g/210L of breath, the Intoximeters Intox DMT Dual Sensor will report the lowest result truncated to the second decimal place.(vi) The Intoximeters Intox DMT Dual Sensor allows the subject 3 minutes to provide a sample. In the event of an inadequate sample the Operator may coach the subject to provide an acceptable sample. Any Mis-Try will be included on the Flow Profile Plot which is printed with the IR Curves at the time of the test.2. Four copies of the Certificate of Analysis will be generated each bearing the statement "SUPPORTING DATA FOR THIS DOCUMENT IS AVAILABLE UPON WRITTEN REQUEST TO THE ALABAMA DEPARTMENT OF FORENSIC SCIENCES, IMPLIED CONSENT UNIT". The supporting data or information as referred to in § 32-5A-194(a)(4) Code of Alabama, 1975 as amended, for the Certificate of Analysis consists of the "Data Pack", IR Curves, EC Profile Plot, and Flow Profile Plot (INCLUDES Mis-Tries). The IR Curves, EC Profile Plot, and Flow Profile Plot are printed at the time of the test.(6) Qualifications: An applicant must satisfactorily complete a new operator's course in the operational procedures of the Breath Alcohol Testing Instrument and be an employee for one of the agencies listed in § 32-5A-194, Code of Ala. 1975, as amended.(7) Permits: (a) Permits to perform a chemical analysis of a person's breath pursuant to § 32-5A-194, Code of Ala. 1975, as amended, will be issued by the Director of the Department of Forensic Sciences upon the recommendation of the Technical Director of the Implied Consent Discipline of the Department of Forensic Sciences.(b) Permits issued to new operators will automatically expire at the end of the succeeding calendar year.(c) Operator permit status can remain active by satisfactorily completing a continuing education session each calendar year and by being an employee for one of the agencies listed in § 32-5A-194, Code of Ala. 1975, as amended. The permit of an operator failing to complete a continuing education session any year after their new operator's course will automatically expire at the end of that calendar year.(d) In instances where a declared State of Emergency was issued at the State or Federal level during the course of a calendar year, the continuing education requirement for that calendar year may be waived by the Director of the Department of Forensic Sciences or the Technical Director of the Implied Consent Discipline of the Department of Forensic Sciences. Successful operation and completion of a breath test resulting in a certificate analysis is confirmation of acceptable operator status, as referred to in hum v. City of Brewton,883 So.2nd 241 (Ala.Cr.App. 2003)(e) An operator who fails to attend a continuing education session may be reactivated provided they attend a continuing education session within two calendar years. Any operator who remains inactive for more than two successive calendar years must attend a new operator's class to be reinstated.(f) Any action or practice which is misleading or deceptive, or the violation of any of the rules of the Alabama Department of Forensic Sciences promulgated under the provisions of § 32-5A-194, Code of Ala. 1975, as amended, shall constitute grounds upon which the Director may revoke such permit.(g) If the Director receives a complaint or has reason to believe that an operator is participating in misleading or deceptive practices, violating or has violated any of the rules, he shall notify the operator of a hearing to determine if the alleged infraction has occurred. The Director will designate a place and time for the hearing.(h) The Director or his designee shall conduct the hearing.(i) Upon revocation of a permit, the Director shall notify the operator, the operator's immediate superior and the Technical Director of the Implied Consent Section of the Alabama Department of Forensic Sciences. Relevant Cites:
Designated Instrument:Harper v. City of Troy, 4 67 So.2d 269 (Ala.Cr.App. 1985)
Method:McDaniel v. State, 706 So. 2d 1305, (Ala.Crim.App. 2001).
Predicate:Ex parte Mayo, 652 So. 2d 201 (Ala. 1994J; Ex Parte Vizzina, 533 So.2d 269,271 (Ala. 1988); Ex Parte Bush, 474 So.2d 168 (Ala. 1985); Moore v. State, 442 So.2d 164, 167 (Ala.Cr.App.1983); Patton v. City of Decatur, 337 So.2d 321 (Ala.1976); McGough v. Slaughter, 395 So.2d 972, 977 (Ala.1981).
Testimony:Stubstad v. City of Orange Beach, 575 So.2d 1240 (Ala.Cr.App. 1991)
Ala. Admin. Code r. 370-1-1-.01
New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88-660 to the Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed December 4, 1998: effective January 8, 1999. Amended: Filed May 7, 1999; effective June 11, 1999. Amended: Filed July 7, 2003; effective August 11, 2003. Amended: Filed June 4, 2004; effective July 9, 2004.Amended by Alabama Administrative Monthly Volume XXXVI, Issue No. 08, May 31, 2018, eff. 6/24/2018.Amended by Alabama Administrative Monthly Volume XXXVII, Issue No. 08, May 31, 2019, eff. 6/20/2019.Amended by Alabama Administrative Monthly Volume XXXVIII, Issue No. 12, September 30, 2020, eff. 10/14/2020.Author: Gregory L. Turner, Mark A. Pevey, Dale A. Carpenter
Statutory Authority:Code of Ala. 1975, §§ 32-5A-194, as amended.