OCTOBER D87 - Voice For The Defense Online

~(I) Continuous observation ofthe subject for a minimumperiod of time as set by the Scientific DLrectorprior tocollection ofthc breath specimenduring which period the subject must not haveingested alcoholic beverages or other fluids,reeureitated. vomited. eaten. or smoked.(appmximakly huo hours) required willbe considered part of the course.(0) In the event an operator is certified tooperate a specific type or brand ofequipment and desires to be cenified onan additional tvoe or brand of eaulo-but not limited lo thc operation of theinstrument and allidequipment and theproper reporting procedures and analysisresula.(2) The satisfactory completion of a refreshercourse ofat least four hours duration, the cantcntof which will include but not be limitedcess to the instrument and allied equipment.(3) The useofa system blankanalysis inconnectionwith the tcsting of each subject.(4) The analysis of a suitable reference sample, suchas air equilibrated with a reference solution ofknown alcohol content at a known temperature,the result of which analysis must agree with thereference sample value within the limits afk0.01% WN, or such limiu as set by theSeientificDirector. This analysis shall immediatelyprecede or immediately follow thc analysis of thebreath of the subject.(5) The results of an analysis as defined by statuteshall be expressed in terms of % W/V to the secanddecimal place as found; for eranple, 0.237%found shall be reported as 0.23%.(6) Proper and adequate records of operations,analyses, and results as stated by the ScientificDrrector shall be maintained.(7) Breath alcohol testing operators and the testingtechniqueas set fanh in this section shall be supervisedin each laboratory or agcncy engaged inbreath alcohol analysis by a Technical Supervisorhaving the minimum qualifications set forth in"10.4 of this title (relating to Technical Supervision)."~~~~~~,Sections 19.3(a)(l); 19.3(a)(2); and 19.3@)(1-5).respectively set out application, receipt and renewalof operator certification as set out below.a. Initial Certification(I) In order to apply for ccnifieationas moperatorof a breath alcohol testing instrument,an applicant must show the successfi~l conkpletianof a course of instruction approvedby the Scientific Director which course mustinclude as a minimum the following:(A) A minimum of three (3) hours of instructionan the effecrsof alcohol on thehuman body.(B) A minimum of three (3) hours of instructionan the operational principlesof theselected breath alcohol testine ~-~~~instmmcntwhich is to include:(i) A function description afthe testingmethod.(ii) A detailed operational descriptionof the method with demonstrations.(C) A minimum of five (5) hours of instruelionan Texas legal aspects of breathalcohol testing.ID) A minimam of three 13) hours of in-ing.(E) A minimum of ten (10) hours of laboratoryparticipation using appropriateequipment. Laboratory practice will includethe analysis of refcrrnce alcoholsamples, as well as thc analysis of theactual drinking subjects.(F) Time spent an requircd examinationstians to acquaint the applicant withproper operation of the new type orbrand of equipment.(2) In order to receive initial certification as anoperator of a breath alcahol tcsting instrument.an aoolicant must satisfactorilv com-lowing:(A) A written examination which shall coverthe academic or lecture materialpresented in the course of instructions.(B) A laboratory examination which shallcover acNal operations of the mstrumentand allied equipment on which the operatoris to be certified by analyzingunknown reference samples and abtainingresults on all the samples within thelimits as set by the Scientific Director.If thc correct value is not obtained,within thcse limits, on all ofthesanples,then the operator will be given a secondset of test samoles. If the correct valuehas failed the examination.(C) If an applicant fails either the writtenorlaboratory portion of the examination,after the expiration of 90 days the applicantmay request a second examination.Ifthe applicant fails thc sccondexamination,theapplicant may not requestsubsequent examinations until sixmonths have elapsed since the lastexamination.In order to be certified as an operator of abreath alcohol testing instrument, an applicantmust have established that after certificationthe operator will be paaicipating in abreath testing program that meets the requiremcntsof 619.2 of this title (relating to Approvalof Techniques, Mcthads, and Programs)and 619.9(1) ofthis titlc (relating toExplanation of Terms and Actions) and hasbeen approved by the Scientific Director.b. Renowal of Currcnt Certification. Theoperatoris required to renew certification priorto its expiration date. The minimum requirementfor renewal ofthe operator's certificatewill he:using alcoholic reference sample equipmentunder thedirect andclose scrutiny afa TechnicalSupervisor. The operator will be evaluatedon the basis of ability to:(A) Use proper techniques,(B) Obtain proper instrumental results, and(C) Pollow eslablished pmcedures includinganalysis and reporting procedures.(C) A discussion of procedural updates resultingfrom recent court decisions andleeislation.presented in the refresher course andduring the basic course of instruction.(3) The renewal of thecertificate will be deniedand the operator's current certification willbe inactivated when the operator:(A) Fails to fallow established procedures,(B) Uses other than a proper technique,(C) Fails the laboratory examination, or(D) Fails the written examination.(4) An operator who is denied rencwal will begiven the reason for failure and is not eligibleto be examined again for a period of 90days. Failure thc second and subsequent timeswkl require six months to lapse beforereexamination.or revoked.41. See Lopez v. Smte, 225 S.W.2d 852(Tcx.Crim.App. 1950).42. Flercher v. Smfe. 382 S.W.2d 931, 933(Tex.Crim.App. 1964).43. In ImoCs XI. State, 646 S.W.2d 6Q2.603 (Tex.App. 1983). the Court held that the results of an"EMIT" system test wereadmissible if it was shownthat the machine was periodically checked for accuracyby one who understands its scientific theory,and prwf must be offered by a qualified expert to~ -interpret the results.44. Cody v. Smre, 548 S.W.2d 401 (Tcx.Crin1.App. 1977). The court in this instance revcned a DWIconviction hccause the breathalyzer operator failedto fulfill the necessary predicate. Bar see Mdlnn v.Sfole, 668 S.W.2d 427 (Tex.App. 1984).45. Srl,nwber v. Cnlifon~in, 384 US. 757 (1966);McKe,mn I,. Srore, 671 S.W.2d I38 (Tex.App.-Houston 1984).46. Al$n Sme, 627S.W.2d 166. 168 (Tex.Crirn.Aoo. 19821: SeePesbrn I,. Sfare. 676 S.W.2d 122.~T&.~rim'.koo. ..1984) (en band47. Rodriguez il. ~&,'63l S.W.Z~ 515,517 (Ter.Crim.App. 1982).48. Mirmda v. An'rono, 384 US. 436 (1966);McCa,nbridge v. Smte, 712 S.W.Zd499, 504 fn. 16(Tex.Crim.App. 1986); see also South DnkoIo ,#.Neville, 459 U.S. 553 (1983); Bass v. Sfore, 723S.W.2d 687 (Tex.Crim.App. 1986); McGirtIy L,.Smre. 723 S.W.2d 719 1Tex.Crim.A~~. 1986):7ho,&s I,. Smre, 701 S.W.Z~ 653 (~exdrim.~pi.1985).October 1987 / VOICE fo~the Defense 33