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Regulations of Title 17 for Breath Testing, Including Training

JURY INSTRUCTIONS:Special Instructions

The testing of breath samples by or for law enforcement agencies for purpose of determining the concentration of ethyl alcohol in the blood of persons shall be performed in accordance with regulations adopted by the California Department of Health Services.

The failure, if any, to follow the regulations adopted by the California Department of  Health Services for testing breath samples to determine a person’s blood alcohol concentration may be considered by you in determining the accuracy of such test results and the weight, if any, to be given them.

Those regulations specify the following:

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.

Breath analysis shall only be performed by persons whose training includes theory of operation, detailed operation procedures, and a precautionary checklist, and who have practical experience in the use of the instrument and have taken a written or practical examination. Such training shall be by or under the supervision of persons who are qualified as forensic alcohol supervisors, analysts or trainees.

A breath sample shall be expired breath which is essentially alveolar in composition. The breath sample shall be collected only after the subject has been observed continuously for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested any alcoholic beverages or other fluids, eaten, smoked, regurgitated or vomited.

For the person tested, breath analysis shall be of two separate breath samples that result in a determination of blood or breath alcohol concentration that do not differ by more than 0.02 percent.

The instrument used to test breath samples must be checked for accuracy either every ten days, or 150 breath samples, whichever occurs sooner.

The accuracy test must be against a known test sample and the accuracy test result must be within plus or minus 0.01 percent of the known test sample’s actual alcohol concentration. The alcohol concentration of the known test sample must be no less than 0.01 percent and no more the 0.03 percent. 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.

Law enforcement agencies shall keep records of trainingwhich 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 which must be maintained by the licensed laboratory.

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