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Periodic Accuracy Standards and Required Training of an Operator

JURY INSTRUCTIONS:Special Instructions

California Administrative Code, Title 17, §1219, §1221, H&S Code §436.50 et. seq.

You should consider whether or not the test was performed in accordance with the Requirement for Breath Alcohol Analysis of the California Administrative Code, Title 17, sections 1215 et seq. You are not required to accept the results of the breath test.

§1221. General: Breath alcohol analysis shall be performed in accordance with standards set forth in this Article. §1221.4. Standards of Procedure: (a) Procedures for breath alcohol analysis shall meet the following standards:

The accuracy of instruments shall be determined and shall consist, at a minimum, of periodic analysis of a reference sample [as described in section 1221.2(a)(3)] and which is provided by a forensic alcohol laboratory. Breath alcohol analysis shall be performed only with instruments for which the operators have received training, such training to include at minimum the following schedule of subjects:

  1. Theory of operation;
  2. Detailed procedure of operation;
  3. Practical experience;
  4. Precautionary checklist;
  5. Written and/or practical examination;

Such analysis shall be performed by an operator (as defined in section 1221.4(a)(5)), and the results shall be used by a forensic alcohol laboratory to determine if the instrument continues to meet the standard of accuracy as required (section 1221.2(a)(3)).

The instrument used to conduct the breath sample analysis must be named on the “Conforming Product List” published by the National Highway and Safety Administration of the U.S. Department of Transportation.

  1. The instrument shall be capable of analyzing a blank sample and of analyzing a suitable reference sample, such as air equilibrated with a reference solution of known alcohol content at a known temperature;
  2. The instrument shall be capable of the analysis of a reference sample of known alcohol concentration within accuracy and precision limits of plus or minus 0.01 grams % of the true value; these limits shall be applied to alcohol concentrations from 0.10 grams % to 0.30 grams %. The accuracy test shall be performed by an operator who is trained to use the instrument tested. The test sample must be provided by a forensic alcohol laboratory.

§1221.4(a)(4) provides that “Training in the procedures of breath alcohol analysis shall be under the supervision of persons who qualify as forensic alcohol supervisors, forensic alcohol analysts or forensic alcohol analyst trainees in a licensed forensic alcohol laboratory.

§1221.4(a)(5) states that “An operator shall be a forensic alcohol supervisor, forensic alcohol analyst, forensic alcohol analyst, forensic alcohol analyst trainee or a person who has completed successfully the training described under section 1221.4(a)(3) and who may be called upon to operate a breath testing instrument in the performance of his duties.”

§1222 states that “Forensic alcohol laboratories and law enforcement agencies shall maintain records which clearly represent their activities which are covered by these regulations. Such records shall be available for inspection by the Department on request.”

§1222.1 provides that: “Forensic Alcohol Laboratory Records. (A) Each laboratory which is licensed to perform forensic alcohol analysis shall keep the following records for a period of at least three years.”

§1222.1(a)(7) requires “Records of such training as a laboratory provides to persons who operate breath testing instruments for law enforcement agencies.” Law enforcement agencies shall keep records of training which show their activities covered by the regulations. These records include:

  1. records of the frequency of accuracy determinations and the identity of the person performing such determinations.
  2. records of analyses performed, results and identities of the persons performing analyses.
  3. a precautionary checklist to be used by the operators of each instrument, at the location of each instrument.
  4. records of training of operators of breath testing instruments for law enforcement which must be maintained by the licensed laboratory.

Records showing compliance with the accuracy determination regulations shall be kept at a licensed forensic laboratory.

The failure, if any, to follow the regulations adopted by the California State Department of Health for procedures to be used in administering tests to determine the concentration of ethyl alcohol in a person’s blood, may be considered by you in determining the accuracy of the breath tests made in this case.