HLT-49-08-00014-E Chemical Analyses of Blood, Urine, Breath or Saliva for Alcoholic Content

1/21/09 N.Y. St. Reg. HLT-49-08-00014-E

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 03

January 21, 2009

RULE MAKING ACTIVITIES

DEPARTMENT OF HEALTH

EMERGENCY RULE MAKING

 

I.D No. HLT-49-08-00014-E

Filing No. 5

Filing Date. Jan. 05, 2009

Effective Date. Jan. 05, 2009

Chemical Analyses of Blood, Urine, Breath or Saliva for Alcoholic Content

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of Part 59 of Title 10 NYCRR.

Statutory authority:

Vehicle and Traffic Law, section 1194(4)(c) and Environmental Conservation Law, section 11-1205(6)

Finding of necessity for emergency rule:

Preservation of public safety.

Specific reasons underlying the finding of necessity:

Immediate adoption of this amendment is necessary for preservation of the public safety. The amendment, once adopted, will enable law enforcement agencies to use a breath alcohol testing device, which, while not currently listed in 10 NYCRR Section 59.4, is approved for use by the National Highway Traffic Safety Administration.

A new Conforming Products List was published in the Federal Register on June 29, 2006, adding a state-of-the-art evidential breath test instrument: the DataMaster DMT. Under a Division of Criminal Justice Services project fully funded through the Governor's Traffic Safety Committee, the DataMaster DMT will replace 475 breath test instruments currently used by more than 420 police agencies statewide. The Division of Criminal Justice Services has informed the Department of its expectation to begin distribution of the first lot of approximately 40 DataMaster DMT instruments on or about April 30, 2007.

Failure to update the list by emergency rulemaking will result in confusion as to the DataMaster DMT’s approval for use in New York State, resulting in defense challenges to the legal admissibility of evidentiary results obtained with the device. Such failure would obviously impede law enforcement efforts to combat drunk driving, particularly as more and more of the older DataMaster models become unusable, thereby adversely affecting public safety. Moreover, the federal and State lists of approved breath testing devices must be identical to avoid legal challenges to prosecutions for alcohol-related offenses and preclude inadmissibility of evidence, and to ensure effective enforcement of the laws against driving while intoxicated.

Subject:

Chemical Analyses of Blood, Urine, Breath or Saliva for Alcoholic Content.

Purpose:

To update the conforming products list of breath alcohol testing devices currently approved for use by the NHTSA.

Text of emergency rule:

Subdivisions (c) and (d) of Section 59.1 are amended as follows:

(c) Chemical tests/analyses include breath tests conducted on those instruments found on the Conforming Products List of Evidential Breath Measurement Devices as established by the U.S. Department of Transportation/National Highway Traffic Safety Administration, published in the Federal Register on [June 4, 1999. Such list is set forth in section 59.4 of this Part.] December 17, 2007. Copies are available for public inspection and copying by appointment at the Department of Health, Records Access Office, Corning Tower, Empire State Plaza, Albany, New York.

(d) Training agency or agencies means the [Bureau for Municipal Police] Office of Public Safety of the Division of Criminal Justice Services, the Division of State Police, the Nassau County Police Department, the Suffolk County Police Department, and/or the New York City Police Department.

The heading for Section 59.4 is amended, and existing subdivisions (b) of Section 59.4 is replaced by a new subdivision (b), as follows:

59.4 Breath [testing ] analysis instruments.

(b) At the request of the training agency responsible for the maintenance of a breath analysis instrument, the commissioner shall approve the instrument provided the model has been accepted by the U.S. Department of Transportation/National Highway Traffic Safety Administration (NHTSA) as an evidential breath measurement device. The commissioner's approval may be based on evidence that the model appears on NHTSA's current Conforming Products List as published in the Federal Register, or evidence that the device has been accepted by NHTSA as an evidential breath measurement device, but the device has not yet been added to the published Conforming Products List. The commissioner shall make available upon request a list of approved breath analysis instruments.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. HLT-49-08-00014-P, Issue of December 3, 2008. The emergency rule will expire March 5, 2009.

Text of rule and any required statements and analyses may be obtained from:

Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, [phone], email: [e-mail]

Regulatory Impact Statement

Statutory Authority:

The New York State Vehicle and Traffic Law, Section 1194(4)(c), and the Environmental Conservation Law, Section 11-1205(6), authorize the Commissioner of Health to adopt regulations concerning methods of testing breath for alcohol content.

Legislative Objectives:

This amendment allows law enforcement/police agencies to use state-of-the-art equipment for breath alcohol testing, as approved by the Commissioner of Health. This action fulfills the legislative objective of ensuring effective enforcement of the law against driving while intoxicated.

Needs and Benefits:

In 1986, the Commissioner of Health adopted the Conforming Products List of Evidential Breath Measurement Devices, as established by the National Highway Traffic Safety Administration, under 10 NYCRR Sections 59.1(c) and 59.4(b). The Traffic Safety Administration's list is periodically revised to include additional approved testing devices. Affected parties are law enforcement agencies that train police organizations in the use of breath testing devices and the organizations/agencies whose staff conduct testing, including the New York State Police; the State Division of Criminal Justice Services' Office of Public Safety; and the Police Departments of Nassau County, Suffolk County, and the City of New York. This amendment updates the name of one training agency, and identifies the three more recently recognized training agencies that currently participate in breath analysis operator training of law enforcement officials statewide.

A new Conforming Products List was published in the Federal Register on June 29, 2006, and again on December 17, 2007, with each publication announcing approval of state-of-the-art evidential breath test instruments. The Division of Criminal Justice Services has requested approval to use the DataMaster DMT, due, in part, to a project fully funded through the Governor's Traffic Safety Committee, that will allow replacement of 475 breath test instruments currently used by more than 420 police agencies Statewide. Many of the new instruments have already been distributed and have been engaged in the field since emergency adoption of an amendment incorporating the June 29, 2006 Conforming Products List. The State Police have expressed an interest in using and training others in the use of the more recently federally-approved Draeger Alcotest 9510, pending amendment of this Part to include this device.

It is of great importance to the public welfare of the State that Part 59 be accurate and clear as a reference tool for the prosecutors and defense attorneys Statewide who rely on the provisions of Part 59 daily in adjudicating alcohol-related offenses. This amendment would remove from Part 59 the lengthy listing of breath analysis devices, and incorporate the listing by reference to the Federal Register date of publication. Although Department staff rigorously proofread the express terms in an effort to detect incorrect transcription of the multi-page listing's complex text, the Federal Register itself may contain errors. The proposed incorporation by reference would more surely eliminate either type of error that could be used by the defense to sway the outcome of a DWI case. Eliminating the need to duplicate in Part 59, in its entirety, the complex text of the Conforming Products List as published in the Federal Register, would also allow for more timely regulatory amendment by consensus rule, to simply revise the Federal Register publication date. More timely amendment would ensure more timely access to state-of-the-art technologies for breath alcohol analysis.

The amendment requires the Department to make the Conforming Products List available upon request; therefore, the Department will retain copies of the Federal Register editions that include such a list. The amendment also authorizes the Department to approve, upon request by a training agency, the use of an evidentiary breath analysis instrument prior to promulgation of the instrument's federal approval by publication in the Federal Register. This authorizing provision would eliminate the sometimes significant lag time between National Highway Traffic Safety Administration approval of a new device and publication of the updated device listing, thereby allowing more timely access by training agencies to state-of-the-art devices.

This proposed amendment, once adopted, will make these devices available for use by law enforcement agencies without risk of evidentiary challenge to prosecution, and will ensure effective enforcement of the laws against driving while intoxicated.

COSTS:

Costs to Private Regulated Parties:

The requirements of this regulation are not applicable to any private parties regulated by the Department.

Costs to State Government:

Adoption of additions and revisions to the Conforming Products List does not necessitate purchase of new devices or discontinuance of devices currently in use. Therefore, this proposed amendment does not require affected parties to incur new costs. Both the Division of Criminal Justice Services and the State Police have requested timely amendment of Part 59 in order that they may use state-of-the-art breath analysis devices to replace devices that are unable to be repaired as parts become increasingly scarce. Moreover, the Division of Criminal Justice Services expects the newer model instrument, which utilizes improved diagnostics, an enhanced operating system and an outboard printer, to generate cost savings from fewer instrument malfunctions, resulting in less downtime. Thus, this amendment's authorizing use of updated models of breath analysis devices will result in decreased costs to law enforcement agencies.

Costs to Local Government:

Adoption of additions and revisions to the Conforming Products List through incorporation by reference does not require purchase of new devices or discontinuance of devices currently in use. Therefore, this proposed amendment does not impose any additional costs to police departments operated by local governments, including the City of New York Police Department. Police departments operated by local governments may experience cost savings for the same reasons described under Costs to State Government.

Costs to the Department of Health:

Adoption of additions and revisions to the Conforming Products List does not impose any costs on the Department.

Local Government Mandates:

This regulation does not impose any new mandate on any county, city, town, village, school district, fire district or other special district.

Paperwork:

No new reporting requirements or forms are imposed as a result of the proposed amendment.

Duplication:

This regulation is consistent with, but does not duplicate, other State and federal statutes concerning approved breath alcohol measurement devices.

Alternative Approaches:

Failure to update the regulation by incorporating by reference the most current list of evidentiary devices will result in confusion as to device approval for use in New York State, resulting in defense challenges to the admissibility of results obtained with the device. Such failure will obviously impede law enforcement efforts to combat drunk driving, particularly as more and more of the older breath analyzer models become unusable, thereby adversely affecting public safety. At the present time, there are no acceptable alternatives to pursuing permanent adoption of the rule as written.

Federal Standards:

The proposed rule does not exceed any minimum standards of the federal government; it merely adds new federally approved devices to the Conforming Products List, to be consistent with federal standards.

Compliance Schedule:

Regulated parties should be able to comply with these regulations effective upon filing a Notice of Emergency Adoption with the Secretary of State.

Regulatory Flexibility Analysis

No Regulatory Flexibility Analysis is required pursuant to Section 202-b(3)(b) of the State Administrative Procedure Act. The proposed amendment does not impose any adverse economic impact on small businesses or local governments, and does not impose reporting, record keeping or other compliance requirements on small businesses or local governments. The amendment harmonizes state and federal lists of approved breath measurement devices, making the entire range of devices available for use by law enforcement agencies in New York without risk of evidentiary challenge to prosecution for alcohol-related offenses.

Rural Area Flexibility Analysis

No Rural Area Flexibility Analysis is required pursuant to Section 202-bb(4)(a) of the State Administrative Procedure Act. The proposed amendment does not impose any adverse impact on facilities in rural areas, and does not impose any reporting, record keeping or other compliance requirements on regulated parties in rural areas. The amendment harmonizes state and federal lists of approved breath measurement devices, making the entire range of devices available for use by law enforcement agencies in New York without risk of evidentiary challenge to prosecution for alcohol-related offenses.

Job Impact Statement

A Job Impact Statement is not required because it is apparent, from the nature and purpose of the proposed rule, that it will not have a substantial adverse impact on jobs and employment opportunities. The amendment harmonizes state and federal lists of approved breath measurement devices, making the entire range of devices available for use by law enforcement agencies in New York without risk of evidentiary challenge to prosecution for alcohol-related offenses.