N.M. Admin. Code § 7.33.2.12

Current through Register Vol. 35, No. 20, October 22, 2024

Section 7.33.2.12 - KEY OPERATORS OF BREATH ALCOHOL TESTING EQUIPMENT

A. Initial certification. Certification shall be up to one year.

(1) Qualified applicants must have:

(a) status as a certified operator, or hold an operator certificate of completion for the instrument(s) on which they seek to be certified as a key operator; AND

(b) status as a salaried employee of a law enforcement agency or detention facility in New Mexico; OR

(c) SLD may certify as key operators, SLD-selected individuals of law enforcement agencies or corrections departments in New Mexico who successfully complete written and practical examinations formulated and administered by SLD.

(2) Required training.

(a) Training by SLD representatives shall consist of the following:

(i) the theory of breath testing;

(ii) the operational and theoretical principles of the selected breath testing instruments;

(iii) the preparation and use of a simulator;

(iv) calibration checks of selected breath alcohol instrument(s);

(v) quality control measures and proficiency testing;

(vi) minor maintenance and repair of breath alcohol testing equipment;

(vii) the New Mexico Implied Consent Act, this rule and any amendments or revisions and their application to court testimony on the operation and certification of the selected breath alcohol instruments;

(viii) laboratory practice and the demonstration of competency on the applicable equipment;

(ix) introduction to radio frequency interference (RFI) and how to prepare a RFI report.

(b) Demonstration of competency by successful completion of comprehensive practical and written examinations administered by SLD.

(3) Key operator certification shall be limited to the model of instruments upon which the key operator has been trained and examined or models considered equivalent by SLD.

(4) Certified key operators of a SLD approved model of breath alcohol instrument may be certified to operate additional SLD-approved breath alcohol instrument(s) by demonstrating competency with the successful completion of training conducted by representatives of SLD. This training shall include written as well as and practical examinations formulated by SLD.

B. Continuing responsibilities. Certified key operators shall be responsible for:

(1) the calibration checks of the instruments they oversee, maintenance of those instruments and their supplies;

(2) successful completion of the proficiency testing specified in this rule:

(a) solutions for proficiency testing of each certified key operator shall be issued at least four times every year by SLD;

(b) a minimum of one solution must be analyzed by each certified key operator within 30 days of receipt of the solutions; results on the proficiency report form provided by SLD must be received by SLD within 10 working days thereafter;

(c) the average of the proficiency test results must be within ± 10% of target value; if the target value is less than 0.100 g/210L, then the results must be within ± 0.010 g/210L;

(3) insuring that the records and notifications specified in training are submitted as required by SLD rules;

(4) at least monthly submission to SLD of all logbook copies no later than the 10th day of the following month; electronic records pertaining to all tests administered on the instrument(s) will be transmitted as scheduled by SLD.

C. Recertification. Key operators shall be certified for a period of up to one year. All key operator certifications shall expire annually on March 31.

(1) Certifications may be renewed based on a demonstration of competency which may include successful completion of a refresher class as specified by SLD.

(2) If the certification of a key operator is due to expire before the certification is renewed, the key operator may request an extension of certification. This request must be received by SLD before certification is due to expire. Extension of certification shall be within the discretion of SLD based on good cause having been shown and shall be for a period of not more than 60 days. Extensions shall not be granted for more than a total of 60 consecutive days. Certification shall be deemed to have expired at the end of the extension period if the renewal requirements have not been completed satisfactorily. New certification may be obtained by successfully completing the initial certification process as set out in Subsection A of 7.33.2.12 NMAC above.

D. Denial, suspension, or revocation.

(1) Certification may be denied for inadequate scores; or failure to complete any performance tests; or examinations in the manner prescribed by SLD; or for any of the reasons set out in Paragraph (2) of this subsection.

(2) SLD may refuse to certify or may suspend or revoke certification of any SLD-certified key operator for one or more of the following causes:

(a) fraud or deceit in applying for or obtaining the certification or renewal thereof;

(b) loss of professional certification or affiliation;

(c) any serious or repeated violation of this rule;

(d) any major violation of the standards for personnel or equipment relevant to the testing procedures that are the subject of this rule;

(e) for good cause, including but not limited to perjury, fraud or incompetence;

(f) failure to perform analyses and proficiency testing in a satisfactory manner as specified by SLD;

(g) as required by New Mexico Parental Responsibility Act (Section 40-5A-1 -et. seq. NMSA 1978).

(3) SLD shall provide notice of a proposed adverse action to the key operator and the head of the agency maintaining the instrument for which the key operator is responsible.

(4) A written request to stay suspension or revocation for good cause may be made by any key operator who is unable to carry out his/her specific duties. The request must be made in accordance with Subsection B of 7.33.2.18 NMAC.

(5) If any key operator is denied certification or renewal of certification, they may re-apply for certification 90 days after the denial or final decision of the record review. Subsequent denials will require that six months elapse prior to re-application.

(6) If any key operator has had their SLD certification revoked, they may not re-apply for a minimum of one year after the denial or final decision of the record review.

N.M. Admin. Code § 7.33.2.12

7.33.2.12 NMAC - Rp, 7.33.2.14 NMAC and 7.33.2.16 NMAC, 04-30-2010