Home » 2007 Issues » October 31, 2007 » HLT-44-07-00001-E Chemical Analysis of Blood, Urine, Breath or Saliva for Alcoholic Content
HLT-44-07-00001-E Chemical Analysis of Blood, Urine, Breath or Saliva for Alcoholic Content
10/31/07 N.Y. St. Reg. HLT-44-07-00001-E
NEW YORK STATE REGISTER
VOLUME XXIX, ISSUE 44
October 31, 2007
RULE MAKING ACTIVITIES
DEPARTMENT OF HEALTH
EMERGENCY RULE MAKING
I.D No. HLT-44-07-00001-E
Filing No. 1074
Filing Date. Oct. 10, 2007
Effective Date. Oct. 10, 2007
Chemical Analysis 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 analysis 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 National Highway Traffic Safety Administration. Such updating is necessary to enable NYS law enforcement agencies to use state-of-the-art devices, avoid legal challenges to prosecutions for alcohol related offenses, preclude inadmissability of evidence and ensure effective enforcement of the laws against driving while intoxicated.
Text of emergency rule:
Subdivision (c) of Section 59.1 is 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] June 29, 2006. Such list is set forth in section 59.4 of this Part.
Subdivision (b) of Section 59.4 is amended as follows:
(b) The commissioner has adopted the Conforming Products List of Evidential Breath Measurement Devices, as hereinafter set forth, established by the U.S. Department of Transportation/National Highway Traffic Safety Administration, as meeting the above criteria. Unless otherwise noted, the devices are approved for both mobile and nonmobile use.
Conforming Products List
(1) Alcohol Countermeasure Systems [,] Corp., Mississauga, Ontario, Canada:
(xvi) Alco-Sensor III (Enhanced with Serial Numbers above 1,200,000).
[(xvi)] (xvii) Alco-Sensor IV.
(xviii) Alco-Sensor IV-XL.
[(xvii)] (xix) Alco-Sensor AZ.
(xx) Alco-Sensor FST.
[(xviii)] (xxi) RBT-AZ.
[(xix)] (xxii) RBT III.
[(xx)] (xxiii) RBT III-A.
[(xxi)] (xxiv) RBT IV.
[(xxii)] (xxv) RBT IV with CEM (cell enhancement module).
[(xxiii)] (xxvi) Intox EC/IR.
(xxvii) IntoX EC/IR II.
[(xxiv)] (xxviii) Portable Intox EC/IR.
(9) Komyo Kitagawa, Kogyo, K.K., Japan:
(i) Alcolyzer DPA-2.
(ii) Breath Alcohol Meter PAM 101B.
(10) Lifeloc Technologies, Inc. (formerly Lifeloc, Inc.), Wheat Ridge, CO:
(i) PBA 3000B.
(ii) PBA 3000-P.
(iii) PBA 3000C.
(iv) Alcohol Data Sensor.
(v) Phoenix.
(vi) EV 30.
(vii) FC 10.
(viii) FC 20.
(11) Lion Laboratories, Ltd., Cardiff, Wales, UK:
(i) Alcolmeter 300.
(ii) Alcolmeter 400.
[(iii) Alcolmeter AE-D1.]
[(iv)] (iii) Alcolmeter SD-2.
[(v)] (iv) Alcolmeter EBA.
[(vi) Auto-Alcolmeter (nonmobile only).]
[(vii)] (v) Intoxilyzer 200.
[(viii)] (vi) Intoxilyzer 200D.
[(ix)] (vii) Intoxilyzer 1400.
[(x)] (viii) Intoxilyzer 5000 CD/FG5.
[(xi)] (ix) Intoxilyzer 5000 EN.
(12) Luckey Laboratories, San Bernadino, CA:
(i) Alco-Analyzer 1000 (nonmobile only).
(ii) Alco-Analyzer 2000 (nonmobile only).
(13) National Draeger, Inc., Durango, CO:
(i) Alcotest 7010.
(ii) Alcotest 7110.
(iii) Alcotest 7110 MKIII.
(iv) Alcotest 7110 MKIII-C.
(v) Alcotest 7410.
(vi) Alcotest 7410 Plus.
(vii) Breathalyzer 900.
(viii) Breathalyzer 900A.
(ix) Breathalyzer 900BG.
(x) Breathalyzer 7410.
(xi) Breathalyzer 7410-II.
(14) National Patent Analytical Systems, Inc., Mansfield, OH:
(i) BAC DataMaster (with or without the Delta-1 accessory).
(ii) BAC Verifier Datamaster [DataMaster] (with or without the Delta-1 accessory).
(iii) DataMaster cdm (with or without the Delta-1 accessory).
(iv) DataMaster DMT.
* * *
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire January 7, 2008.
Text of emergency rule and any required statements and analyses may be obtained from:
Katherine E. Ceroalo, Department of Health, Office of Regulatory Affairs, Corning Tower, Rm. 2438, Empire State Plaza, Albany, NY 12237-0097, (518) 473-7488, fax: (518) 473-2019, e-mail: regsqna@health.state.ny.us
Regulatory Impact Statement
Statutory Authority:
The New York State Vehicle and Traffic Law, Section 1194(4)(c), and Department of 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.
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.
Prosecutors and defense attorneys Statewide rely on the provisions of Part 59 daily in adjudicating alcohol-related offenses. By including in Section 59.4 all devices that appear on the latest federal Conforming Products List, 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. The Division of Criminal Justice Services has requested timely amendment of Part 59 because the manufacturer of the DataMaster breath analysis device currently in use has begun phasing out production due, in part, to the fact that parts to manufacture and repair these instruments are becoming increasingly unavailable. 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 an updated model, the DataMaster DMT, will result in decreased costs to law enforcement agencies.
Costs to Local Government:
Adoption of additions and revisions to the Conforming Products List 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:
At the present time, there are no acceptable alternatives. Failure to update the list will result in confusion as to the DataMaster DMT's instrument 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 DataMaster models become unusable, thereby adversely affecting public safety.
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, recordkeeping 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, recordkeeping 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.
