Alabama Administrative Code › Title 370 - Alabama Department of Forensic Sciences › Chapter 370-1-1 - CHEMICAL TEST FOR INTOXICATION › Section 370-1-1-.01 - Admissibility Rule For The Evidential Breath Alcohol Test Method

Current through Register Vol. 42, No. 9, June 28, 2024
(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-194
Code 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-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).
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-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.
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-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.
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.