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Standards Re Breath Testing Per Title 17

JURY INSTRUCTIONS:Special Instructions

California Administrative Code of Regulations, Title 17, §1215, et seq., and §1219.3, Evid. Code 403(c).

In considering the chemical test results, you should determine whether or not the test was performed in accordance with the provisions of the California Administrative Code, Title 17. Vehicle Code section 15 defines “Shall” and “May” as follows: “Shall” is “mandatory,” and “May” is “permissive.” The applicable provisions of Title 17 are as follows:

§1219 of Title 17 provides that “Samples taken for forensic alcohol analysis and breath alcohol analysis shall be collected and handled in a manner approved by the Department. The identity and integrity of the samples shall be maintained through collection to analysis and reporting.”

§1219.3 of Title 17 entitled Breath Collection requires: “A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fiftee minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.

§1221 Mandates that “Breath alcohol analysis shall be performed in accordance with standards set forth in this Article.”

§1221.4 – “Standards of Procedure: “Procedures for breath alcohol analysis shall meet the following standards:” §1221.4(a)(3) requires that: “Breath alcohol analysis shall be performed only with instruments for which the operators have received training, such training to include at a minimum the following schedule of subjects: (A) Theory of operation; (B) Detailed procedure of operation; (C) Practical experience; (D) Precautionary checklist; (E) Written and/or practical examination.”

§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. (A) After approval as set forth in Section 1218, the forensic alcohol laboratory is responsible for the training and qualifying of its instructors.”

§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 may provide to persons who operate breath testing instruments for law enforcement agencies.”

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 tests made in this case.

You are further instructed that the result of a breath test shall be completely disregarded if the People do not prove the foundational facts that all required scientific procedures were followed.