Proposed new DWI breath testing
machine in NJ
Authorized By: Christopher S.
Porrino, Attorney General, Department of Law and Public Safety.
Authority: N.J.S.A. 39:4-50.3,
39:3-10.25, and 12:7-56. Calendar Reference: See Summary below for explanation
of
Proposal Number: PRN 2017-192.
Submit written comments by October
20, 2017, to:
Elie Honig, Director
Division of
Criminal Justice
Attention: Public Comments-Chemical Breath Testing
Regulations
Richard J. Hughes Justice Complex
PO Box 085
Trenton, NJ
08625-0085
or electronically at: Prospolice@njdcj.org.
The agency proposal follows:
In accordance with
N.J.S.A. 39:4-50.3, 39:3-10.25, and 12:7-56, N.J.A.C. 13:51 establishes the
approved methods of chemical breath testing and approved instruments and
methods of operation for chemical breath testing of arrested persons. N.J.A.C.
13:51 also establishes general maintenance of approved instruments and
recordkeeping, and establishes how and who can be certified as breath test
operators and breath test coordinators/instructors for the chemical breath
testing of persons arrested for violations of the driving while intoxicated
(DWI) statutes. See N.J.S.A. 39:4-50 et seq., 39:3-10.13, 39:3-10.20, 39:3-
10.24, 39:3-10.25, 12:7-46, 2A:4A-23, and 12:7-55 et seq.
The Attorney
General is proposing amendments to N.J.A.C. 13:51 to revise the list of acceptable
devices that can be used to measure a person’s blood alcohol concentration. The
proposed amendments introduce a new approved instrument, the Alcotest 9510, and
removes antiquated instruments that are no longer manufactured or approved for
use. The proposed amendments also address changes in the training requirements
for Breath Test Operators and Coordinators/Instructors, and related changes
concerning certification and documentation, with amendments to the controlling
definitions.
N.J.A.C. 13:51-1.2
is proposed for amendment to add the new term, “breath alcohol concentration.”
The term uses the language previously included under the definition of
“chemical analysis.” For purposes of clarity, the breath alcohol concentration
proposed definition details the actual scientific levels to determine the
concentration of ethanol in the breath.
The definition of
“calibrating unit” is updated to incorporate a new legal citation in the
Federal Register and remove an outdated reference to “Model Specifications for
Calibrating Units for Breath Alcohol Testers.”
The definition of
“chemical analysis” is further revised to cite current Federally approved
devices for performing chemical analysis. These devices are approved pursuant
to the National Highway Traffic Safety Administration’s (NHTSA) Highway Safety
Programs.
The definition of
“electrochemical analysis” is revised to more accurately describe the
scientific process that takes place during the analysis. This proposed
amendment does not indicate a change in procedure or process. Rather, the
revised definition more closely describes the science behind the analysis.
The definition of
“law enforcement officer” is revised to expand the definition to those who have
completed either the Basic Course for Police Officers or the Basic Course for
Investigators.
The proposed
revisions also remove the definitions of “photometric instrument” and
“photometry” as these instruments and their replacement parts are no longer
made by manufacturers. Removing these instruments from the list means the
instruments are no longer approved devices or methods for measuring breath
alcohol concentration.
The definition of
“replica” and “alcohol influence report” are revised for clarity and to reflect
actual practice.
N.J.A.C. 13:51-1.5
is proposed for amendment to allow the Division of State Police the flexibility
to determine the method, whether in writing or electronically, by which breath
test operator applicants shall submit their application for certification.
Proposed
amendments to N.J.A.C. 13:51-1.6(a) include the deletion of paragraph (a)1. The
deletion of this paragraph removes the initial operator training requirements
to become a certified operator of the Breathalyzer and the Dominator Albreath,
as these are no longer approved instruments. The proposed amendments also
incorporate the new approved device, the Alcotest 9510, into the initial
operator certification requirements. The amendments also increase the number of
training days that must be completed from “a minimum of three days” that the
regulation currently requires to become a Certified Alcotest Operator, to “a
minimum of four days of training.” The change reflects the current number of
training days needed to become a Certified Alcotest Operator.
N.J.A.C.
13:51-1.6(a), (b), and (c) are proposed for amendment to remove reference to
enumerated areas of training. These proposed revisions do not reflect an
intention to remove any area of operator certification training that is
currently performed. Rather, the proposed revisions remove training specifics
that are more appropriately located in training curriculum documents or in a
training manual.
The proposed
amendments also add subsection (f), which requires the Division of State Police
to track certifications either in paper or electronic format. The proposed
amendment also codifies the current practice of issuing a paper certification
known as a “replica” to operators.
N.J.A.C. 13:51-1.9(d) is proposed
for amendment to add the Attorney General, or his or her designee, as a person
authorized to initiate a recommendation for the removal of a breath test
operator’s certificate.
N.J.A.C. 13:51-1.12(b) is proposed
for amendment to allow the Chief of Police or executive head of an organized
police department the ability to appoint a designee to request replacement
certificates for breath test operators. This subsection is also proposed for
amendment to allow the Division of State Police the flexibility to determine
the method, in the manner prescribed, by which a request for breath test
operator replacement certificates shall be made. A proposed amendment to
N.J.A.C. 13:51-1.12(c) will remove the requirement that a replica certification
bear the operator’s original certification date on the reverse side of the
card. This change would allow flexibility in reformatting the replica. However,
the proposed changes do not alter the requirement that the operator’s initial
certification date be included on the replica.
N.J.A.C. 13:51-2.2 is proposed for
amendment to remove the requirement for Breath Test Coordinators/Instructors to
receive training on the preparation and quality control of chemicals and other
testing standards or materials used for testing. This function is no longer
performed by Breath Test Coordinators/Instructors and thus, the need for such
training no longer exists. The proposed amendments will recodify existing
paragraphs (a)2 through 6 as (a)1 through 5.
N.J.A.C. 13:51-3.3 is proposed for
amendment to replace the phrase “laboratory practice” with the more appropriate
term “practical training.” The proposed amendments also delete the phrase “with
air passed through test solutions of alcohol.” These proposed amendments do not
reflect an intention to remove any area of training that is currently
performed. Rather, the proposed amendments remove training specifics more
appropriately located in training curriculum documents or in a training manual.
Also, the word “computer” is replaced with “instrument” for consistent use of
terminology.
The proposed amendments to N.J.A.C.
13:51-3.5 include the deletion of “methods of chemical breath testing and
approved” from the heading of the section. N.J.A.C. 13:51-3.5 is also proposed
for amendment to remove paragraph (a)1 because photometry is no longer an
acceptable device or method for performing breath tests. The proposed
amendments also remove subsection (a)2 of this section and recodify (a)2i as
(a)1. Since the Alcotest 7110 MKIII and Alcotest 9510 are the only devices
currently approved for breath testing and both utilize infrared analysis and
electrochemical analysis in a single instrument as a dual system of chemical
breath testing, the general language in paragraph (a)2 is no longer necessary.
The proposed amendments include both approved Alcotest instruments and a
description of each.
N.J.A.C. 13:51-3.6 is proposed for
repeal. This section specified the methods of operation for the testing of a
person’s breath by chemical analysis using one of several approved instruments.
The instruments detailed in subsection (a) and (b) are no longer approved as
they are outdated. N.J.A.C. 13:51-3.6(c) is being deleted because the language
regarding the operation of the device would be more appropriately located in
training curriculum documents or in an instruction manual. These proposed amendments
do not reflect changes to procedure that is currently performed.
N.J.A.C. 13:51-4.3 is proposed for
amendment to delete subsection (a) because “photometry” is no longer an
acceptable method for testing a person’s breath by chemical analysis. Subsection
(b) is recodified as subsection (a) and is proposed for amendment to add the
new approved instrument, the Alcotest 9510, to the requirements for periodic
inspection and calibration. The proposed amendments also clarify that
calibration check records may be stored electronically in addition to, or
instead of, paper format.
As the Division has provided a
60-day comment period for this notice of proposal, this notice is excepted from
the rulemaking calendar requirements pursuant to N.J.A.C. 1:30-3.3(a)5.
The proposed amendments and repeal
will have an obvious beneficial social impact. The apprehension, prosecution,
and conviction of individuals operating vehicles or vessels while under the
influence of intoxicating liquor or drugs, or with an alcohol concentration in
their blood or breath at, or above, a specific legislatively determined level,
serve the overall public good. Continued scientific advancements allow for the
use of improved scientific technology to better serve police departments to detect
those driving under the influence and create a safer environment for the
general public.
The proposed amendments and repeal
most directly affect police and other law enforcement officers, police
departments, and law enforcement agencies, and the heads of those agencies,
including the Division of State Police. They will assist police and law
enforcement in the efficient detection and administration of chemical breath
testing of a person suspected of operating a motor vehicle or vessel while
intoxicated.
The proposed amendments and repeal
will have limited economic impact upon the general public. Those individuals
who choose to operate vehicles or vessels while under the influence of
intoxicating liquor or drugs, or with an alcohol concentration in their blood
or breath at, or above, a specific legislatively determined level may be
economically impacted by costs and fines associated with their apprehension,
prosecution, and conviction of violating the law. However, as noted above, the
positive impact these proposed amendments and repeal will provide in protecting
the health, safety, and welfare of the general public far outweighs any
potential economic impact the offenders may experience.
An economic impact may be felt by
State and local law enforcement entities choosing to purchase the newly
approved instrument. The Division of State Police is expected to initially bear
the primary costs associated with the proposed amendments and repeal through
the additional acquisition of these new evidential chemical breath test
instruments and establishment of related training and administrative
procedures. The Attorney General, through the Division of Criminal Justice, and
various County Prosecutor’s Offices are also expected to be affected through
their respective involvement in legal challenges.
Other law enforcement entities and
prosecutors (municipal and county) that elect to purchase the new instrument
may be affected. Law enforcement entities may elect to utilize funds held in
accounts that allow for funds to be used for this purpose, or seek grants to
purchase new chemical breath testing instruments. Any decision to purchase new
chemical breath testing instruments is an elective decision, since other
approved instruments currently in a department’s possession are still approved
for use.
SUBCHAPTER 1. BREATH TESTING
OPERATORS
13:51-1.2 Definitions
for the
purpose of this chapter, [and subchapters 1, 2, 3 and 4
thereof,] the terms set forth
herein are defined as follows:
“Alcohol Influence Report [Form” and “check
list” are interchangeable terms and] shall mean the record required…
“Photometry” shall mean the determination of the
concentration of Ethanol (Ethyl Alcohol) in the breath by the measurement of
the change in absorption of light of fixed wavelength by a solution of an
oxidant, which reacts with Ethanol from a fixed volume of breath.]
...
“Replica” shall mean a document
[which] is an operator’s certificate (as defined herein) [and] which shall bear
the signatures or facsimile signatures of the Attorney General and the
Superintendent of State Police, and where authorized by this chapter, the
signature or initials of a Breath Test Coordinator/Instructor [, and which is
of a size that permits it to be carried in the pocket, purse, wallet, etc., and
includes replacements thereof]
13:51-1.6 Certification training
requirements
(a) Initial operator certification requirements are as follows:
[1.Subject to the requirements at N.J.A.C. 13:51-1.4(a), initial
certification of an applicant, to
become an operator for breath test instruments approved at N.J.A.C.
13:51-3.5(a)1, requires satisfactory completion of a minimum of five days of
training as prescribed and conducted by the Division of State Police. Such
training shall include:
i. Instruction in the metric
system;
ii. Instruction in mathematical calculations as required;
iii.
Statutory and case law;
iv.I nstruction and training in the operation of the
approved
instrument;
v. Laboratory practice
with air samples passed through test solutions
of alcohol and air samples taken
from human subjects;
vi. Written examinations; and
vii. Successful completion
of a test for competency.
Subject to the requirements at
N.J.A.C. 13:51-1.4(a), initial certification of an applicant, to become an
operator for breath test instruments approved at N.J.A.C. 13:51-[3.5(a)2] ,
requires satisfactory completion of a minimum of [three] days of training as
prescribed and conducted by the Division of State Police. Such training shall
include:
[i. Statutory and case law;
ii. Instruction and training in the
operation of the approved instrument;
iii. Laboratory practice with air
samples passed through test solutions of alcohol and air samples taken from
human subjects;]
Recodify existing iv.-v. as (No
change in text.)
(b) Subject to the requirements at
N.J.A.C. 13:51-1.4(c), certification of an operator, whose certification is
valid, on an instrument approved at N.J.A.C. 13:51-3.5(a), other than the
instrument upon which the operator was previously trained and certified,
requires satisfactory completion of a minimum of one day of training as
prescribed and conducted by the Division of State Police. Such training shall
include:
[1. Statutory and case law;
2.Instruction and training in the
operation of the approved instrument;
3. Laboratory practice with air
samples passed through test solutions of alcohol;]
Recodify existing 4.-5. as (No
change in text.)
(c)Subject to the requirements at
N.J.A.C. 13:51-1.4(d), recertification of an operator, whose certification is
valid, requires satisfactory completion of a minimum one day of training as….
...
“Calibrating unit” shall mean
“Calibrating Units for Breath Alcohol
13:51-1.12 Return, loss and/or
replacement of replica
(a) (No change.)
(b) If a replica has been lost, or is
otherwise in need of replacement,
the Chief of Police or other
executive head of the organized police department of which the operator is a
member shall notify the Superintendent, in [writing]
, in care of the Alcohol/Drug Test
Unit of the Division of State Police of such loss or need for a replacement.
Lost replicas must be reported immediately.
(c) A replica will be replaced for
an operator when the operator’s replica has been lost and duly reported as
lost, or is otherwise in need of replacement, pursuant to N.J.A.C.
13:51-1.12(b). The replacement replica will bear the date of issuance of the
replacement and bear the signatures, or facsimile signatures, of the Attorney
General and the Superintendent of State Police. The [reverse side of the
replacement] replica will show the date of the operator’s original initial
certification under N.J.A.C. 13:51-1.6(a) and, if applicable, N.J.A.C. 13:51-
1.6(b), and the date of the operator’s most recent recertification under
N.J.A.C. 13:51-1.6(c), or reinstatement and recertification under N.J.A.C.
13:51-1.6(d).
