“Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.”
U.S. v. Wade, 388 U.S. 218, at 256-258 (1967), Justice White, concurring and dissenting.
Saturday, July 4, 2009
Alabama Dept. Of Forensic Sciences Breath Test Rules
ALABAMA DEPARTMENT OF FORENSIC SCIENCES
ADMINISTRATIVE CODE
CHAPTER 370‑1‑1 CHEMICAL TEST FOR INTOXICATION
TABLE OF CONTENTS
370‑1‑1‑.01 Admissibility Rule For The Evidential Breath Alcohol Test Method
370‑1‑1‑.02 Evidential Breath Alcohol Testing Instrument Inspections (Repealed 8/11/03)
370‑1‑1‑.03 Blood, Urine, And Other Bodily Substances
370‑1‑1‑.04 Field Sobriety Screening Tests
370‑1‑1‑.05 Field Sobriety Screening Devices
Appendix
370‑1‑1‑.01 Admissibility Rule For The Evidential Breath Alcohol Test Method.
(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) 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.
(b) 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.
(c) 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 34.0oC an adjustment to the reported value will be made. When the Breath Temperature is above 34.0oC the adjustment will result in a lower reported Breath Alcohol Concentration.
(d) Alcohol. For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.
(e) Air Blank Check. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument verifies that the analytical pathway is free of contamination.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
(n) 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.
(o) 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).
(p) 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.
(q) Draeger. For the purpose of this rule, Draeger is the appropriate English translation of the German name Dräger.
(r) 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.
(s) EC. For the purpose of this rule, EC will be the abbreviation for the electrochemical cell detector utilized by the Draeger Alcotest 7110 MKIII.
(t) 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.
(u) 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.
(v) 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.
(w) 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.
(x) IR. For the purpose of this rule, IR will be the abbreviation for the infrared detector utilized by the Draeger Alcotest 7110 MK III.
(y) 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.
(z) 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.
(aa) 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.
(ab) 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.
(ac) Out of Measuring Range. When the alcohol concentration of a breath sample exceeds 0.45 g/210L the instrument will abort the testing sequence.
(ad) 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.
(ae) 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.
(af) 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.
(ag) 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 at the "PLEASE BLOW" prompt.
(ah) 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.
(ai) 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.
(aj) 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.
(3) Approved Evidential Breath Alcohol Instrument List.
(a) Alcotest 7110 MKIII, Draeger Safety, Inc., Durango CO. For the purpose of this rule, variations or enhancements that do not have any bearing on the alcohol measuring capability of the instrument, such as the addition of a modem designated as an Alcotest 7110 MKIII C, are approved.
(4) Approved Evidential Breath Alcohol Test Method.
(a) The method of operation of the Draeger Alcotest 7110 MKIII is software driven and controlled so as not to be influenced by operator technique. The method requires the operator to input the following clerical data (steps 1‑18) as prompted. It is appropriate for the operator to enter a “‑“ for steps 6.(i), 6.(ii), 6(iii), 6.(iv), 6.(v), and 10 ‑ 16 when the requested information cannot be obtained. Omission of an entry in any field will prevent the completion of the Breath Alcohol Testing method.
1. PERMIT NO. (NUMBER): The operator must enter and confirm his/her unique Draeger permit number.
2. <1> DUI <2> ADMIN <3> DEMO: The operator must select the type of testing routine to be administered to the subject.
3. ENTER DRY GAS STND (STANDARD) #1 PRESSURE: The operator must observe and record the pressure from the gas regulator gauge on dry gas standard #1 (0.020 g/210L ethanol standard). It should be noted that the gas pressure has no bearing on the analytical result obtained from the DUI testing routine.
4. ENTER DRY GAS STND (STANDARD) #2 PRESSURE: The operator must observe and record the pressure from the gas regulator gauge on dry gas standard #2 (0.080 g/210L ethanol standard). It should be noted that the gas pressure has no bearing on the analytical result obtained from the DUI testing routine.
5. 20 MIN (MINUTE) DEPRIVATION PERIOD: The operator must confirm that the subject has been under the control of the arresting officer, the operator, and/or other employee of a law enforcement agency for a minimum of 20 minutes. Enter “Y” for yes or “N” for no.
6. ARREST OFFICER SAME AS OPERATOR: The operator must designate whether the breath test operator is or is not the arresting officer. Enter “Y” for yes or “N” for no. If the arresting officer is not the breath test operator then the following information identifying the arresting officer will also be required.
(i) ARREST OFFICERS LAST NAME: The operator must enter the last name of the arresting officer.
(ii) ARREST OFFICERS FIRST NAME: The operator must enter the first name of the arresting officer.
(iii) ARREST OFFICERS MIDDLE INITIAL: The operator must enter the middle initial of the arresting officer.
(iv) ARREST OFFICERS IDENTIFICATION NUMBER: The operator must enter the agency identification number of the arresting officer.
(v) ARREST OFFICERS AGENCY: The operator must enter the agency of the arresting officer.
7. TIME OF OFFENSE: The operator must enter the date and time of the offense using the following format.
8. COUNTY OF OFFENSE: The operator must enter the county in which the offense occurred.
9. SUBJECT’S UTC (UNIFORM TRAFFIC COMPLAINT NUMBER): The operator must enter the subject’s Uniform Traffic Complaint number.
10. SUBJECT LAST NAME: The operator must enter the subject’s last name.
11. SUBJECT FIRST NAME: The operator must enter the subject’s first name.
12. SUBJECT MIDDLE INIT (INITIAL): The operator must enter the subject’s middle initial.
13. SUBJECT STREET ADDR/APT (ADDRESS/APARTMENT): The operator must enter the subject’s street or apartment address.
14. SUBJECT TOWN/CITY: The operator must enter the subject’s town or city of residence.
15. SUBJECT STATE: The operator must enter the subject’s state of residence using appropriate two‑letter designation.
16. SUBJECT DL# (DRIVER’S LICENSE NUMBER) OR SS# (SOCIAL SECURITY NUMBER): The operator must enter the subject’s driver’s license number, Alabama file number, social security number or Alabama I.D. number.
17. SUBJECT (MALE/FEMALE): The operator must designate the subject’s gender using “M” for male and “F” for female.
18. SUBJECT DOB (DATE OF BIRTH): The operator must designate the subject’s date of birth using the format. An entry of 01/01/1900 will be used when the subject’s date of birth cannot be obtained.
(b) Upon completion of clerical data entry the Draeger Alcotest 7110 MKIII continues the Breath Alcohol Testing method by performing or displaying the following automated steps or messages.
1. PURGING
2. AMBIENT AIR CHECK
3. AIR BLANK CHECK
4. ACCURACY CHECK (0.020 g/210L)
5. PURGING
6. AMBIENT AIR CHECK
7. AIR BLANK CHECK
8. INSERT MOUTHPIECE, PRESS BUTTON (Operator Task)
9. PLEASE WAIT
10. PLEASE BLOW (First Subject Sample)
11. STOP
12. REMOVE MOUTHPIECE
13. PURGING
14. AMBIENT AIR CHECK
15. AIR BLANK CHECK
16. PLEASE WAIT
17. PURGING
18. AMBIENT AIR CHECK
19. AIR BLANK CHECK
20. INSERT MOUTHPIECE, PRESS BUTTON (Operator Task)
21. PLEASE WAIT
22. PLEASE BLOW (Second Subject Sample)
23. STOP
24. REMOVE MOUTHPIECE
25. PURGING
26. AMBIENT AIR CHECK
27. AIR BLANK CHECK
28. ACCURACY CHECK (0.080 g/210L)
29. PURGING
30. AMBIENT AIR CHECK
31. AIR BLANK CHECK
32. RESULT
33. DATA STORED
(5) Report of Breath Alcohol Test Result.
(a) The Certificate of Analysis produced for each individual Breath Alcohol Test is confirmation of successful METHOD completion when an analytical result (number) is obtained. For a Breath Alcohol Test result to be reported, indicating successful METHOD completion, the following steps must be performed.
1. “DIAGNOSTIC CHECKS BEFORE AND AFTER OK”: An automated internal diagnostic check is performed by the Draeger Alcotest 7110 MKIII one hundred twenty eight (128) times per second. For each Breath Alcohol Test, the Draeger Alcotest 7110 MKIII stores in memory a record of a single diagnostic “Snap Shot” before the first subject sample is collected and after the second subject sample is collected.
2. “CALIBRATION CHECKS BEFORE AND AFTER OK”: An automated calibration check is performed before the first subject sample is collected and after the second subject sample is collected to verify the calibration of the Draeger Alcotest 7110 MKIII at the time of the breath test. A 0.020 g/210L ethanol standard is introduced into the instrument before the first subject sample is collected. An acceptable result of 0.015 to 0.025 g/210L will allow the Breath Alcohol Test to proceed. A 0.080 g/210L ethanol standard is introduced into the instrument after the second subject sample is collected. An acceptable result of 0.076 to 0.084 g/210L must be obtained before the results of the Breath Alcohol Test will be reported. When results obtained from the calibration checks are not within the stated acceptable ranges, the “Certificate of Analysis” obtained from the Draeger Alcotest 7110 MKIII will indicate ACCURACY CHECK FAIL and no numerical result will be reported at the time of the breath test..
3. "INSPECTION BEFORE AND AFTER TEST OK": Completed Diagnostic Checks and Calibration Checks verify instrument accuracy and reliability and therefore constitute a time of test inspection. When a condition exist which prevents the completion of either the diagnostic checks or the calibration checks the "Certificate of Analysis" will not bear this statement.
4. “THE SUBJECT MUST COMPLETE A DEPRIVATION PERIOD OF AT LEAST TWENTY MINUTES BEFORE PROVIDING THE FIRST BREATH SAMPLE”. An operator must attest that reasonable efforts were made by an employee of a law enforcement agency to deprive the subject of putting potentially interfering substances in their mouth. In event the operator becomes aware of potentially interfering substances in the mouth, the deprivation period should be restarted.
5. “TWO ACCEPTABLE BREATH SAMPLES WERE ANALYZED, THE LOWEST RESULT IS REPORTED”. The subject must provide two acceptable breath samples for analysis. The lowest alcohol result generated from each breath sample must agree within 0.020 g/210L of breath. If the alcohol results from the two breath samples do not agree within 0.020 g/210L of breath, the instrument will begin a second breath sample collection sequence. Failure to provide two (2) acceptable breath samples for the second breath sampling sequence will constitute a refusal of the whole test. When the results of two acceptable breath samples do agree within 0.020 g/210L of breath, the Draeger Alcotest 7110 MKIII will report the lowest result truncated to the second decimal place.
6. When the subject provides a breath sample that does not meet the minimum acceptable criteria or when not prompted to do so, one of the following errors will be recorded in the Subject “Mis‑Try” file: “Minimum Volume Not Achieved”, “Blowing Time Too Short”, or “Blowing Not Allowed”. When the Draeger Alcotest 7110 MKIII determines a sample or samples to be unacceptable 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.
(b) Four copies of the Certificate of Analysis will be generated each bearing the statement “SUPPORTING DATA FOR THIS DOCUMENT IS AVAILABLE UPON WRITTEN REQUEST TO THE ALABAMA DEPARTMENT OF FORENSIC SCIENCES, IMPLIED CONSENT SECTION”. The supporting data or information as referred to in §32‑5A‑194(a)(4) Code of Ala. 1975, as amended, for the Certificate of Analysis consists of the “Data Pack”, “Subject Mis‑Try File”, and when needed IR Curves, EC Profile Plot, and Flow Profile Plot.
(6) Qualifications: An applicant must satisfactorily complete a new operator's course in the operational procedures of the Breath Alcohol Testing Instrument and be an employee for one of the agencies listed in §32‑5A‑194, Code of Ala. 1975, as amended.
(7) Permits:
(a) Permits to perform a chemical analysis of a person's breath pursuant to §32‑5A‑194, Code of Ala. 1975, as amended, will be issued by the Director of the Department of Forensic Sciences upon the recommendation of the Technical Director of the Implied Consent Section of the Department of Forensic Sciences.
(b) Permits issued to new operators will automatically expire at the end of the succeeding calendar year.
(c) Operator permit status can remain active by satisfactorily completing a continuing education session each calendar year and by being an employee for one of the agencies listed in §32‑5A‑194, Code of Ala. 1975, as amended. The permit of an operator failing to complete a continuing education session any year after their new operator's course will automatically expire at the end of that calendar year.
(d) An operator who fails to attend a continuing education session may be reactivated provided they attend a continuing education session within two calendar years. Any operator who remains inactive for more than two successive calendar years must attend a new operator’s class to be reinstated.
(e) Any action or practice which is misleading or deceptive, or the violation of any of the rules of the Alabama Department of Forensic Sciences promulgated under the provisions of §32‑5A‑194, Code of Ala. 1975, as amended, shall constitute grounds upon which the Director may revoke such permit.
(f) If the Director receives a complaint or has reason to believe that an operator is participating in misleading or deceptive practices, violating or has violated any of the rules, he shall notify the operator that a hearing to determine if the alleged infraction has occurred. The Director will designate a place and time for the hearing.
(g) The Director or his designee shall conduct the hearing.
(h) Upon revocation of a permit, the Director shall notify the operator, the operator's immediate superior and the Technical Director of the Implied Consent Section of the Alabama Department of Forensic Sciences.
Relevant Cites:
Designated Instrument: Harper v. City of Troy, 467 So.2d 269 (Ala.Cr.App. 1985)
Method: McDaniel v. State, 706 So. 2d 1305, (Ala.Crim.App. 2001).
Predicate: Ex parte Mayo, 652 So. 2d 201 (Ala. 1994); Ex Parte Vizzina, 533 So.2d 269,271 (Ala. 1988); Ex Parte Bush, 474 So.2d 168 (Ala. 1985); Moore v. State, 442 So.2d 164, 167 (Ala.Cr.App.1983); Patton v. City of Decatur, 337 So.2d 321 (Ala.1976); McGough v. Slaughter, 395 So.2d 972, 977 (Ala.1981).
Testimony: Stubstad v. City of Orange Beach, 575 So.2d 1240 (Ala.Cr.App. 1991)
Author: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: Code of Ala. 1975, §§32‑5A‑194, as amended.
History: New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88‑660 to the Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed December 4, 1998: effective January 8, 1999. Amended: Filed May 7, 1999; effective June 11, 1999. Amended: Filed July 7, 2003; effective August 11, 2003. Amended: Filed June 4, 2004; effective July 9, 2004.
370‑1‑1‑.02 Evidential Breath Alcohol Testing Instrument Inspections. (Repealed 8/11/03)
Author: Department of Forensic Sciences
Statutory Authority: Code of Ala. 1975, §§32‑5A‑194, as amended.
History: New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88‑660 to the Alabama Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed December 4, 1998; effective January 8, 1999. Amended: Filed May 7, 1999; effective June 11, 1999. Repealed ‑ Appendices A, B and D also: Filed July 7, 2003; effective August 11, 2003.
370‑1‑1‑.03 Blood, Urine And Other Bodily Substances.
(1) Purpose. This rule describes the statutory elements required for the admissibility of evidence obtained from chemical analyses of a person’s blood, urine, or other bodily substance. This rule contains the METHODS as referred to by §32‑5A‑194 Code of Ala. 1975, as amended, that insures and verifies each chemical analysis is performed accurately and reliably. IN THE EVENT THAT ONE OF THESE REQUIREMENTS IS NOT FULFILLED, CHEMICAL ANALYSIS EVIDENCE MAY STILL BE OFFERED THROUGH TRADITIONAL EVIDENTIARY PREDICATE as described in Powell v. State, 515 So.2d 140 (Ala. Cr. App. 1986).
(2) Definitions and Abbreviations:
(a) Alcohol‑ For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.
(b) 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 persons blood, urine or other bodily substance to determine the presence and quantity of alcohol (ethanol) or other chemical substances. Therefore the method refers only to those tasks, manual or automated, that result in accurately identifying and quantifying the amount of alcohol or other chemical substance in a particular person’s blood or urine.
(c) Permit‑ For the purpose of this rule, a permit is authorization by the Director allowing an employee to analyze blood, urine, or other bodily substances for alcohol, drugs, or other chemical entities. By assigning a qualified employee this particular task the Director has expressed authorization.
(3) Qualifications. Applicants for a permit to perform a chemical analysis of a person’s blood, urine, or other bodily substance pursuant to the Alabama Chemical Test for Intoxication Act shall meet the following requirements.
(a) Be employed as a Forensic Scientist by the Alabama Department of Forensic Sciences and be assigned to the Toxicology Section or Implied Consent Section by the Director.
(b) Have been approved by the Toxicology Section Discipline Chief to perform analyses on blood, urine, or other bodily substance analyses for the purpose of identification and quantitation of alcohol and/or other drugs.
(4) Certification Permits.
(a) Permits to perform a chemical analysis of a person’s blood, urine, or other bodily substance pursuant to the Alabama Chemical Test for Intoxication Act will be issued by the Director and certified by the Toxicology Section Discipline Chief..
(b) Once issued, permits will remain effective concurrent with the term of employment of the individual. At the Directors discretion permits may be rescinded.
(5) Methods.
(a) Analysis of blood, urine, or other bodily substances for the presence of volatile compounds; such as alcohol (ethanol), shall be performed by Gas Chromatography utilizing internal standard headspace injection, in accordance with the Toxicology Section’s Standard Operating Procedure for that analysis.
(b) Analysis of blood, urine, or other bodily substances for drugs or other chemical substances will utilize a screening technology in conjunction with Gas Chromatography Mass Spectrometry confirmation, in accordance with the Toxicology Section’s Standard Operating Procedure for that analysis.
Authors: Dale A. Carpenter, Jack R. Kalin
Statutory Authority: Code of Ala. 1975, §32‑5A‑194, as amended.
History: New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88‑660 to the Alabama Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed July 7, 2003; effective August 11, 2003.
370‑1‑1‑.04 Field Sobriety Screening Tests.
(1) Purpose. This rule describes the approved TECHNIQUE (Procedure) as referred to by §32‑6‑49.13 Code of Ala. 1975, as amended, that insures each Field Sobriety Screening Test performed on an operator of a commercial vehicle is performed in a standardized and reliable fashion.
(2) Definitions and Abbreviations.
(a) Alcohol‑ For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.
(3) Approved Procedure. The test battery comprising the Horizontal Gaze Nystagmus (HGN), One‑leg Stand (OLS), and Walk and Turn (WAT) Field Sobriety Tests as described and applied according to the DUI Detection and Standardized Field Sobriety Testing Student Manual, Publication HS178, Transportation Safety Institute, National Highway Traffic Safety Administration, U.S. Department of Transportation in its June, 1992 or successor printings.
(4) Training Certificates. A certificate will be issued to each officer who successfully passes written and practical examinations during a minimum of 16 hours of Standardized Field Sobriety Test Training which included no less than two controlled drinking workshops using volunteer drinkers and wherein the administration and interpretation of the HGN, OLS, and WAT tests was presented.
Authors: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: §32‑6‑49.13, as amended.
History: New Rule: Filed July 24, 1996; effective August 28, 1996. Amended: Filed July 7, 2003; effective August 11, 2003.
370‑1‑1‑.05 Field Sobriety Screening Devices.
(1) Purpose. This rule list the approved “FIELD BREATHALYZER or OTHER APPROVED DEVICE” as referred to by §32‑6‑49.13 Code of Ala. 1975, as amended. Additionally, this rule describes training requirements and minimal operational criteria necessary for accurate and reliable results.
(2) Definitions and Abbreviations:
(a) Alcohol. For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.
(b) Observation. For the purpose of this rule, use of the term observation shall mean to watch. Prior to the administration of a field sobriety screening test employing an approved field sobriety screening device a subject must be under the observation of the arresting officer for a period of not less than twenty minutes.
(3) Approved Training. Training afforded by the manufacturer of an approved device and/or training received as a part of the Alabama Preliminary Breath Testing Instrument course shall constitute approved training.
(4) Operation of Devices.
(a) Officers shall use the device according to the manufacturer’s operational procedure.
(b) Every subject must be under observation by the arresting officer for a period of twenty minutes before the screening device test is administered.
(5) Calibration. Calibration shall be checked every twelve (12) months. The device passes the calibration check if it renders a reading between 0.030 g/210L and 0.050 g/210L inclusive on a 0.040 g/210L percent standard delivered from either a wet bath simulator or a dry gas cylinder.
(6) Training and Calibration Records. It shall be the responsibility of each law enforcement agency to maintain permanent records documenting the training of each officer in the use of approved field sobriety screening devices and the annual calibration check results on each device in use by the law enforcement agency.
(7) Approved Field Sobriety Screening Device List.
NOTE: For the purpose of this rule, variations or enhancements that do not have any bearing on the alcohol measuring capability of the instrument, such as the addition of a modem, external printer or passive sampling systems are approved.
(a) Alco‑Sensor III (Device Model)
Intoximeters, Inc., Saint Louis, MO (Manufacturer)
(b) Alco‑Sensor IV (Device Model)
Intoximeters, Inc., Saint Louis, MO (Manufacturer)
(c) Alcotest 7410 (Device Model)
Draeger Safety, Inc., Durango CO (Manufacturer)
(d) Lifeloc FC‑10 (Device Model)
Lifeloc Technologies, Wheat Ridge, CO (Manufacturer)
(e) Lifeloc FC‑20 (Device Model)
Lifeloc Technologies, Wheat Ridge, CO (Manufacturer)
(f) Intoxilyzer 300 (Device Model)
CMI, Inc., Owensboro, KY (Manufacturer)
(g) S‑D2 (Device Model)
CMI, Inc., Owensboro, KY (Manufacturer)
Authors: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: Code of Ala. 1975, §32‑6‑49.13, as amended.
History: New Rule: Filed July 24, 1996; effective August 28, 1996. Amended: Filed July 7, 2003; effective August 11, 2003.
Appendix A
Evidential Breath Alcohol Testing Quality Control.
Purpose.
The purpose of this section is to inform the public of the quality control or good laboratory practices that are utilized by the Alabama Department of Forensic Sciences to support Breath Alcohol Testing in the field. The practices described in this section only demonstrate that each Draeger Alcotest 7110 MKIII is capable of performing as expected. The method as described in 370‑1‑1‑.01(4) is the only sequence of steps that isolates alcohol (ethanol) from a subject to accurately determine the amount. Subsequently the quality control built into the method is the only process that verifies a particular Breath Alcohol Test did indeed perform as expected. Since the authority derived from §32‑5A‑194 Code of Ala. 1975, as amended, is limited to a method to perform a chemical analysis to determine the alcoholic content of a subjects blood the following information pertaining to good laboratory practice does not constitute a rule.
(1) Pre‑installation Evaluation. Each Draeger Alcotest 7110 MKIII is evaluated by the Alabama Department of Forensic Sciences Technical Director or his designee prior to being placed in operation. The evaluation will demonstrate the ability of each Draeger Alcotest 7110 MKIII to identify and flag specific conditions; as well as, verify the analytical integrity of the instrument.
(a) Purging Error. Place the instrument in the “Error Check” mode. Restrict the air flow into the ambient air inlet while the pump is running. This will prompt the instrument to display “Check Sampling Hose” and sound an audible alarm. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(b) Minimum Volume Not Achieved. Place the instrument in the “Error Check” mode. At the prompt “Please Blow”, deliver a deficient sample volume. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(c) Blowing Time Too Short. Place the instrument in the “Error Check” mode. At the prompt “Please Blow”, deliver a sample of sufficient volume and deficient duration. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(d) Blowing Not Allowed. Place the instrument in the “Error Check” mode. At any time other than when the instrument indicates “Please Blow” deliver a sample into the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(e) Ready To Blow Expired. Place the instrument in the “Error Check” mode. At the prompt “Please Blow” do not provide a sample. After three (3) minutes has elapsed this error will be triggered by the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(f) Ambient Air Check. Place the instrument in the “Error Check” mode. When the instrument begins to purge itself, direct an ethanol vapor (typically from a 0.020 g/210L dry gas cylinder) near the breath hose inlet, but not directly into the breath hose inlet. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(g) Interference. Place the instrument in the “Error Check” mode. Prepare a methanol control by adding 105 microliters of methanol to 500 milliliters of distilled water and dispense into a simulator. At the prompt “Please Blow”, deliver a sufficient sample into the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(h) Mouth Alcohol. Place the instrument in the “Error Check” mode. At the prompt “Please Blow” the evaluator should rinse his or her mouth with a common mouthwash containing ethanol, then deliver a sufficient sample into the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(i) Accuracy Check Fail. Place the instrument in the “Error Check” mode. Connect the 0.020 g/210L dry gas cylinder to the 0.080 g/210L gas port and initiate a test. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(j) Standard Gas Supply. Disconnect the dry gas cylinders from the instrument and initiate a test. Record pass if the message “Stnd Gas Supply” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(k) Outside +/‑ Tolerance. Initiate an administrative test sequence. At the prompt “Please Blow” deliver a sufficient sample. When prompted to deliver the second sample, deliver a sufficient sample which varies in concentration from the first by at least 0.021 g/ 210 L. Record pass if the message “Outside +/‑ Tol” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(l) No Admittance. The evaluator should attempt to initiate a restricted function without the use of an appropriate key. Record pass if the message “No Admittance” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(m) Linearity Check. Utilizing manufactured solutions prepare simulators with the following ethanol concentrations: 0.000g/210L, 0.020g/210L (+/‑ 0.005 g/210L), 0.040 g/210L (+/‑ 0.005 g/210L), 0.080 g/210L (+/‑ 5%), 0.120 g/210L (+/‑ 5%), 0.200 g/210L (+/‑ 5%), and 0.500 g/210L (+/‑ 5%). Place the instrument in the “Acc‑Check” mode. When instructed, connect the appropriate simulator to the instrument. Repeat this procedure three times for each ethanol control. Average the results obtained for each concentration from the three runs. To record pass, the average results must fall within the following parameters: 0.000 g/210L, 0.020 g/210L (+/‑ 0.005 g/210L), 0.040 g/210L (+/‑ 0.005 g/210L), 0.080 g/210L (+/‑ 5%), 0.120 g/210L (+/‑ 5%), 0.200 g/210L (+/‑ 5%), and 0.500 g/210L (+/‑ 5%). If the instrument does not pass, initiate the necessary corrective actions to achieve the desired specifications.
(n) Breath Temperature Check. Place the instrument in “ABA” mode. Initiate a testing sequence consisting of three breath samples. When instructed to do so deliver three breath samples into the instrument from a precisely controlled water bath apparatus adjusted to a temperature of approximately 34.0oC. Repeat this procedure using a precisely controlled water bath apparatus adjusted to a temperature of approximately 37.0oC. Record pass if the instrument records a temperature within +/‑ 0.3oC of the actual temperature. If the instrument does not pass initiate the necessary corrective actions to restore the instrument to proper working condition.
(o) Acetone Interference Check. Prepare a solution consisting of 500 milliliters of a manufactured 0.080 g/210L solution of ethanol and 950 microliters of Acetone in a simulator. Initiate an administrative test sequence. At the prompt “Please Blow”, deliver a sufficient sample into the instrument. Record pass if the message “Interference” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(p) Voltage Range Check. Verify the Draeger Alcotest 7110 MKIII’s performance capability throughout a voltage range of approximately 90‑200 volts AC and 12 volts DC.
1. With the instrument connected to a variable AC power supply, adjust the voltage to approximately 90 volts AC. Initiate a standard check sequence consisting of three measurements of a 0.080 g/210L dry gas standard. Record pass if the instrument records an average result between 0.076‑0.084 g/210L. If the instrument does not pass, initiate the necessary corrective actions to achieve the desired specification.
2. With the instrument connected to a variable AC power supply, adjust the voltage to approximately 220 volts AC. Initiate a standard check sequence consisting of three measurements of a 0.080 g/210L dry gas standard. Record pass if the instrument records an average result between 0.076‑0.084 g/210L. If the instrument does not pass, initiate the necessary corrective actions to achieve the desired specification.
3. With the instrument connected to a DC power supply, adjust the voltage to approximately 12 volts DC. Initiate a standard check sequence consisting of three measurements of a 0.080 g/210L dry gas standard. Record pass if the instrument records an average result between 0.076‑0.084 g/210L. If the instrument does not pass initiate the necessary corrective actions to achieve the desired specification.
(q) Barometer Check. Establish communication with the instrument in the diagnostic screen mode. Compare the barometric pressure as indicated by the instrument to the laboratories barometer. Record pass if the difference between the two readings is not greater than 5%. If the instrument does not pass initiate the necessary corrective actions to restore the instrument to proper working condition.
(r) Standard Deviation Check. Initiate a standard check sequence consisting of ten measurements of a 0.080% dry gas standard. Record pass if the instrument records the following: an average result between 0.076‑0.084 g/210L and a standard deviation of less than 0.0025. If the instrument does not pass initiate the necessary corrective actions to restore the instrument to proper working condition.
(2) Data Download Review. The Test Data collected and stored by each Draeger Alcotest 7110 MKIII in the field is transferred to the Alabama Department of Forensic Sciences. Upon transfer, the data is systematically reviewed to identify instrument problems and to perform trend analyses. This data transfer allows the Alabama Department of Forensic Sciences to review essentially 100% of the Breath Alcohol Tests performed statewide.
(a) Communication Check. The Draeger Alcotest 7110 Data Retrieval and Archiving Program produces a Summary of Automatic Data Retrieval. The summary readily identifies those instruments for which communication was not established. For those instruments that automatic communication was unsuccessful, manually establish communication. If communication problems persist investigate the source of the problem and document.
(b) Message Check. Open the Message File (50 File) to identify the automatic Instrument Messages and Operator Messages retrieved by the current download. Review the messages to determine the needs of the instrument, operator, or location (supplies). Document any actions taken.
(c) Instrument Parameter Check. Open the Data File (10 File) to identify Instrument Parameter data retrieved by the current download. Isolate the data corresponding to each of the following parameters collected before and after the subject samples for review: Ambient Air Pressure, 12V DC Power Supply, Battery Voltage, IR Signal, EC Offset, Cuvette Temperature, Breath Hose Temperature, Breath Probe Temperature, Breath Temperature Thermistors, Flow Sensor, Pre‑Test Diagnostic Check, and Post‑Test Diagnostic Check. For each parameter identify when if any an instrument recorded a result outside the specified operating range. Investigate the source of any problem and document any corrective action.
(d) Dry Gas Configuration Check. Open the Data File (10 File) to identify the Dry Gas Configuration data retrieved by the current download. Isolate the data corresponding to each of the following categories for review: 0.02 Gas Lot Number, 0.02 Gas Expiration Date, 0.08 Gas Lot Number, 0.08 Gas Expiration Date, 0.02 Target Concentration, 0.02 Relative Tolerance, 0.02 Absolute Tolerance, 0.08 Target Concentration, 0.08 Relative Tolerance, and 0.08 Absolute Tolerance. For each category identify if the instrument contains the correct configuration. Investigate any discrepancy and document any corrective action.
(e) Error and Accuracy Check. Open the Data File (10 File) to identify the Error and Accuracy Check data retrieved by the current download. Isolate the data corresponding to each of the following errors or measurements: Error, Error 2, Error 3, Error 4, 0.02 gas data, and 0.08 gas data. For each category identify when if any an instrument recorded a result outside the specified operating range. Also review the 0.02 g/210L and 0.08 g/210L gas data to identify low or high trends. Investigate the source of any problem or trend and document any corrective action.
(3) Electronic Inspection. The Electronic Inspection serves primarily as a quality assurance role by being a back‑up inspection to the instrument set‑up procedures and Data Download Review. The Electronic Inspection also is an opportunity to evaluate instrument performance over an extended time frame.
(a) Diagnostic Screen Check. Initiate the Draeger Alcotest 7110 Data Retrieval and Archiving Program. Establish communication with the instrument through the Diagnostic Screen. Evaluate the following displayed parameters: Instrument Serial Number, Instrument Location, Firmware Version, Date, Time, Ambient Air Pressure, 12VDC Power Supply, Battery Voltage, IR Signal, EC Offset, Cuvette Temperature, Breath Hose Temperature, Breath Probe Temperature, Breath Temperature 1, Breath Temperature 2, Function Key, and Flow Sensor. Investigate any discrepancy and document any corrective action.
(b) Interactive Screen Check. Initiate the Draeger Alcotest 7110 Data Retrieval and Archiving Program. Establish communication with the instrument through the Interactive Screen. Evaluate the following displayed parameters: Measuring Units, Calibration Configuration, and Cylinder Pressure Limit. Investigate any discrepancy and document any corrective action.
(c) Calibration Check Plot. Open the Data File (10 File) to identify the Accuracy Check data retrieved by the instrument over the last 6 months. Plot the Accuracy Check data for both the 0.02 and 0.08 g/210L Accuracy Checks. Investigate the source of any problem or trend and document any corrective action.
(4) Annual Re‑Evaluation/Pre‑Installation Evaluation. Regardless of the performance of an instrument in the field each instrument will be brought back to the Alabama Department of Forensic Sciences laboratory once a year for evaluation. This evaluation will consist of the battery of tests described under (1) Pre‑Installation Evaluation.
Authors: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: Code of Ala. 1975, §32‑6‑49.13, as amended.
History: New Appendix: Filed July 7, 2003; effective August 11, 2003.
Ed Note: Appendix is attached to Rule 370‑1‑1‑.01, as per certification filed July 7, 2003; effective August 11, 2003.
ADMINISTRATIVE CODE
CHAPTER 370‑1‑1 CHEMICAL TEST FOR INTOXICATION
TABLE OF CONTENTS
370‑1‑1‑.01 Admissibility Rule For The Evidential Breath Alcohol Test Method
370‑1‑1‑.02 Evidential Breath Alcohol Testing Instrument Inspections (Repealed 8/11/03)
370‑1‑1‑.03 Blood, Urine, And Other Bodily Substances
370‑1‑1‑.04 Field Sobriety Screening Tests
370‑1‑1‑.05 Field Sobriety Screening Devices
Appendix
370‑1‑1‑.01 Admissibility Rule For The Evidential Breath Alcohol Test Method.
(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) 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.
(b) 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.
(c) 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 34.0oC an adjustment to the reported value will be made. When the Breath Temperature is above 34.0oC the adjustment will result in a lower reported Breath Alcohol Concentration.
(d) Alcohol. For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.
(e) Air Blank Check. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument verifies that the analytical pathway is free of contamination.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
(n) 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.
(o) 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).
(p) 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.
(q) Draeger. For the purpose of this rule, Draeger is the appropriate English translation of the German name Dräger.
(r) 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.
(s) EC. For the purpose of this rule, EC will be the abbreviation for the electrochemical cell detector utilized by the Draeger Alcotest 7110 MKIII.
(t) 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.
(u) 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.
(v) 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.
(w) 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.
(x) IR. For the purpose of this rule, IR will be the abbreviation for the infrared detector utilized by the Draeger Alcotest 7110 MK III.
(y) 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.
(z) 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.
(aa) 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.
(ab) 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.
(ac) Out of Measuring Range. When the alcohol concentration of a breath sample exceeds 0.45 g/210L the instrument will abort the testing sequence.
(ad) 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.
(ae) 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.
(af) 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.
(ag) 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
(ah) 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.
(ai) 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.
(aj) 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.
(3) Approved Evidential Breath Alcohol Instrument List.
(a) Alcotest 7110 MKIII, Draeger Safety, Inc., Durango CO. For the purpose of this rule, variations or enhancements that do not have any bearing on the alcohol measuring capability of the instrument, such as the addition of a modem designated as an Alcotest 7110 MKIII C, are approved.
(4) Approved Evidential Breath Alcohol Test Method.
(a) The method of operation of the Draeger Alcotest 7110 MKIII is software driven and controlled so as not to be influenced by operator technique. The method requires the operator to input the following clerical data (steps 1‑18) as prompted. It is appropriate for the operator to enter a “‑“ for steps 6.(i), 6.(ii), 6(iii), 6.(iv), 6.(v), and 10 ‑ 16 when the requested information cannot be obtained. Omission of an entry in any field will prevent the completion of the Breath Alcohol Testing method.
1. PERMIT NO. (NUMBER): The operator must enter and confirm his/her unique Draeger permit number.
2. <1> DUI <2> ADMIN <3> DEMO: The operator must select the type of testing routine to be administered to the subject.
3. ENTER DRY GAS STND (STANDARD) #1 PRESSURE: The operator must observe and record the pressure from the gas regulator gauge on dry gas standard #1 (0.020 g/210L ethanol standard). It should be noted that the gas pressure has no bearing on the analytical result obtained from the DUI testing routine.
4. ENTER DRY GAS STND (STANDARD) #2 PRESSURE: The operator must observe and record the pressure from the gas regulator gauge on dry gas standard #2 (0.080 g/210L ethanol standard). It should be noted that the gas pressure has no bearing on the analytical result obtained from the DUI testing routine.
5. 20 MIN (MINUTE) DEPRIVATION PERIOD: The operator must confirm that the subject has been under the control of the arresting officer, the operator, and/or other employee of a law enforcement agency for a minimum of 20 minutes. Enter “Y” for yes or “N” for no.
6. ARREST OFFICER SAME AS OPERATOR: The operator must designate whether the breath test operator is or is not the arresting officer. Enter “Y” for yes or “N” for no. If the arresting officer is not the breath test operator then the following information identifying the arresting officer will also be required.
(i) ARREST OFFICERS LAST NAME: The operator must enter the last name of the arresting officer.
(ii) ARREST OFFICERS FIRST NAME: The operator must enter the first name of the arresting officer.
(iii) ARREST OFFICERS MIDDLE INITIAL: The operator must enter the middle initial of the arresting officer.
(iv) ARREST OFFICERS IDENTIFICATION NUMBER: The operator must enter the agency identification number of the arresting officer.
(v) ARREST OFFICERS AGENCY: The operator must enter the agency of the arresting officer.
7. TIME OF OFFENSE: The operator must enter the date and time of the offense using the following format
8. COUNTY OF OFFENSE: The operator must enter the county in which the offense occurred.
9. SUBJECT’S UTC (UNIFORM TRAFFIC COMPLAINT NUMBER): The operator must enter the subject’s Uniform Traffic Complaint number.
10. SUBJECT LAST NAME: The operator must enter the subject’s last name.
11. SUBJECT FIRST NAME: The operator must enter the subject’s first name.
12. SUBJECT MIDDLE INIT (INITIAL): The operator must enter the subject’s middle initial.
13. SUBJECT STREET ADDR/APT (ADDRESS/APARTMENT): The operator must enter the subject’s street or apartment address.
14. SUBJECT TOWN/CITY: The operator must enter the subject’s town or city of residence.
15. SUBJECT STATE: The operator must enter the subject’s state of residence using appropriate two‑letter designation.
16. SUBJECT DL# (DRIVER’S LICENSE NUMBER) OR SS# (SOCIAL SECURITY NUMBER): The operator must enter the subject’s driver’s license number, Alabama file number, social security number or Alabama I.D. number.
17. SUBJECT
18. SUBJECT DOB (DATE OF BIRTH): The operator must designate the subject’s date of birth using the format
(b) Upon completion of clerical data entry the Draeger Alcotest 7110 MKIII continues the Breath Alcohol Testing method by performing or displaying the following automated steps or messages.
1. PURGING
2. AMBIENT AIR CHECK
3. AIR BLANK CHECK
4. ACCURACY CHECK (0.020 g/210L)
5. PURGING
6. AMBIENT AIR CHECK
7. AIR BLANK CHECK
8. INSERT MOUTHPIECE, PRESS BUTTON (Operator Task)
9. PLEASE WAIT
10. PLEASE BLOW (First Subject Sample)
11. STOP
12. REMOVE MOUTHPIECE
13. PURGING
14. AMBIENT AIR CHECK
15. AIR BLANK CHECK
16. PLEASE WAIT
17. PURGING
18. AMBIENT AIR CHECK
19. AIR BLANK CHECK
20. INSERT MOUTHPIECE, PRESS BUTTON (Operator Task)
21. PLEASE WAIT
22. PLEASE BLOW (Second Subject Sample)
23. STOP
24. REMOVE MOUTHPIECE
25. PURGING
26. AMBIENT AIR CHECK
27. AIR BLANK CHECK
28. ACCURACY CHECK (0.080 g/210L)
29. PURGING
30. AMBIENT AIR CHECK
31. AIR BLANK CHECK
32. RESULT
33. DATA STORED
(5) Report of Breath Alcohol Test Result.
(a) The Certificate of Analysis produced for each individual Breath Alcohol Test is confirmation of successful METHOD completion when an analytical result (number) is obtained. For a Breath Alcohol Test result to be reported, indicating successful METHOD completion, the following steps must be performed.
1. “DIAGNOSTIC CHECKS BEFORE AND AFTER OK”: An automated internal diagnostic check is performed by the Draeger Alcotest 7110 MKIII one hundred twenty eight (128) times per second. For each Breath Alcohol Test, the Draeger Alcotest 7110 MKIII stores in memory a record of a single diagnostic “Snap Shot” before the first subject sample is collected and after the second subject sample is collected.
2. “CALIBRATION CHECKS BEFORE AND AFTER OK”: An automated calibration check is performed before the first subject sample is collected and after the second subject sample is collected to verify the calibration of the Draeger Alcotest 7110 MKIII at the time of the breath test. A 0.020 g/210L ethanol standard is introduced into the instrument before the first subject sample is collected. An acceptable result of 0.015 to 0.025 g/210L will allow the Breath Alcohol Test to proceed. A 0.080 g/210L ethanol standard is introduced into the instrument after the second subject sample is collected. An acceptable result of 0.076 to 0.084 g/210L must be obtained before the results of the Breath Alcohol Test will be reported. When results obtained from the calibration checks are not within the stated acceptable ranges, the “Certificate of Analysis” obtained from the Draeger Alcotest 7110 MKIII will indicate ACCURACY CHECK FAIL and no numerical result will be reported at the time of the breath test..
3. "INSPECTION BEFORE AND AFTER TEST OK": Completed Diagnostic Checks and Calibration Checks verify instrument accuracy and reliability and therefore constitute a time of test inspection. When a condition exist which prevents the completion of either the diagnostic checks or the calibration checks the "Certificate of Analysis" will not bear this statement.
4. “THE SUBJECT MUST COMPLETE A DEPRIVATION PERIOD OF AT LEAST TWENTY MINUTES BEFORE PROVIDING THE FIRST BREATH SAMPLE”. An operator must attest that reasonable efforts were made by an employee of a law enforcement agency to deprive the subject of putting potentially interfering substances in their mouth. In event the operator becomes aware of potentially interfering substances in the mouth, the deprivation period should be restarted.
5. “TWO ACCEPTABLE BREATH SAMPLES WERE ANALYZED, THE LOWEST RESULT IS REPORTED”. The subject must provide two acceptable breath samples for analysis. The lowest alcohol result generated from each breath sample must agree within 0.020 g/210L of breath. If the alcohol results from the two breath samples do not agree within 0.020 g/210L of breath, the instrument will begin a second breath sample collection sequence. Failure to provide two (2) acceptable breath samples for the second breath sampling sequence will constitute a refusal of the whole test. When the results of two acceptable breath samples do agree within 0.020 g/210L of breath, the Draeger Alcotest 7110 MKIII will report the lowest result truncated to the second decimal place.
6. When the subject provides a breath sample that does not meet the minimum acceptable criteria or when not prompted to do so, one of the following errors will be recorded in the Subject “Mis‑Try” file: “Minimum Volume Not Achieved”, “Blowing Time Too Short”, or “Blowing Not Allowed”. When the Draeger Alcotest 7110 MKIII determines a sample or samples to be unacceptable 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.
(b) Four copies of the Certificate of Analysis will be generated each bearing the statement “SUPPORTING DATA FOR THIS DOCUMENT IS AVAILABLE UPON WRITTEN REQUEST TO THE ALABAMA DEPARTMENT OF FORENSIC SCIENCES, IMPLIED CONSENT SECTION”. The supporting data or information as referred to in §32‑5A‑194(a)(4) Code of Ala. 1975, as amended, for the Certificate of Analysis consists of the “Data Pack”, “Subject Mis‑Try File”, and when needed IR Curves, EC Profile Plot, and Flow Profile Plot.
(6) Qualifications: An applicant must satisfactorily complete a new operator's course in the operational procedures of the Breath Alcohol Testing Instrument and be an employee for one of the agencies listed in §32‑5A‑194, Code of Ala. 1975, as amended.
(7) Permits:
(a) Permits to perform a chemical analysis of a person's breath pursuant to §32‑5A‑194, Code of Ala. 1975, as amended, will be issued by the Director of the Department of Forensic Sciences upon the recommendation of the Technical Director of the Implied Consent Section of the Department of Forensic Sciences.
(b) Permits issued to new operators will automatically expire at the end of the succeeding calendar year.
(c) Operator permit status can remain active by satisfactorily completing a continuing education session each calendar year and by being an employee for one of the agencies listed in §32‑5A‑194, Code of Ala. 1975, as amended. The permit of an operator failing to complete a continuing education session any year after their new operator's course will automatically expire at the end of that calendar year.
(d) An operator who fails to attend a continuing education session may be reactivated provided they attend a continuing education session within two calendar years. Any operator who remains inactive for more than two successive calendar years must attend a new operator’s class to be reinstated.
(e) Any action or practice which is misleading or deceptive, or the violation of any of the rules of the Alabama Department of Forensic Sciences promulgated under the provisions of §32‑5A‑194, Code of Ala. 1975, as amended, shall constitute grounds upon which the Director may revoke such permit.
(f) If the Director receives a complaint or has reason to believe that an operator is participating in misleading or deceptive practices, violating or has violated any of the rules, he shall notify the operator that a hearing to determine if the alleged infraction has occurred. The Director will designate a place and time for the hearing.
(g) The Director or his designee shall conduct the hearing.
(h) Upon revocation of a permit, the Director shall notify the operator, the operator's immediate superior and the Technical Director of the Implied Consent Section of the Alabama Department of Forensic Sciences.
Relevant Cites:
Designated Instrument: Harper v. City of Troy, 467 So.2d 269 (Ala.Cr.App. 1985)
Method: McDaniel v. State, 706 So. 2d 1305, (Ala.Crim.App. 2001).
Predicate: Ex parte Mayo, 652 So. 2d 201 (Ala. 1994); Ex Parte Vizzina, 533 So.2d 269,271 (Ala. 1988); Ex Parte Bush, 474 So.2d 168 (Ala. 1985); Moore v. State, 442 So.2d 164, 167 (Ala.Cr.App.1983); Patton v. City of Decatur, 337 So.2d 321 (Ala.1976); McGough v. Slaughter, 395 So.2d 972, 977 (Ala.1981).
Testimony: Stubstad v. City of Orange Beach, 575 So.2d 1240 (Ala.Cr.App. 1991)
Author: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: Code of Ala. 1975, §§32‑5A‑194, as amended.
History: New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88‑660 to the Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed December 4, 1998: effective January 8, 1999. Amended: Filed May 7, 1999; effective June 11, 1999. Amended: Filed July 7, 2003; effective August 11, 2003. Amended: Filed June 4, 2004; effective July 9, 2004.
370‑1‑1‑.02 Evidential Breath Alcohol Testing Instrument Inspections. (Repealed 8/11/03)
Author: Department of Forensic Sciences
Statutory Authority: Code of Ala. 1975, §§32‑5A‑194, as amended.
History: New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88‑660 to the Alabama Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed December 4, 1998; effective January 8, 1999. Amended: Filed May 7, 1999; effective June 11, 1999. Repealed ‑ Appendices A, B and D also: Filed July 7, 2003; effective August 11, 2003.
370‑1‑1‑.03 Blood, Urine And Other Bodily Substances.
(1) Purpose. This rule describes the statutory elements required for the admissibility of evidence obtained from chemical analyses of a person’s blood, urine, or other bodily substance. This rule contains the METHODS as referred to by §32‑5A‑194 Code of Ala. 1975, as amended, that insures and verifies each chemical analysis is performed accurately and reliably. IN THE EVENT THAT ONE OF THESE REQUIREMENTS IS NOT FULFILLED, CHEMICAL ANALYSIS EVIDENCE MAY STILL BE OFFERED THROUGH TRADITIONAL EVIDENTIARY PREDICATE as described in Powell v. State, 515 So.2d 140 (Ala. Cr. App. 1986).
(2) Definitions and Abbreviations:
(a) Alcohol‑ For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.
(b) 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 persons blood, urine or other bodily substance to determine the presence and quantity of alcohol (ethanol) or other chemical substances. Therefore the method refers only to those tasks, manual or automated, that result in accurately identifying and quantifying the amount of alcohol or other chemical substance in a particular person’s blood or urine.
(c) Permit‑ For the purpose of this rule, a permit is authorization by the Director allowing an employee to analyze blood, urine, or other bodily substances for alcohol, drugs, or other chemical entities. By assigning a qualified employee this particular task the Director has expressed authorization.
(3) Qualifications. Applicants for a permit to perform a chemical analysis of a person’s blood, urine, or other bodily substance pursuant to the Alabama Chemical Test for Intoxication Act shall meet the following requirements.
(a) Be employed as a Forensic Scientist by the Alabama Department of Forensic Sciences and be assigned to the Toxicology Section or Implied Consent Section by the Director.
(b) Have been approved by the Toxicology Section Discipline Chief to perform analyses on blood, urine, or other bodily substance analyses for the purpose of identification and quantitation of alcohol and/or other drugs.
(4) Certification Permits.
(a) Permits to perform a chemical analysis of a person’s blood, urine, or other bodily substance pursuant to the Alabama Chemical Test for Intoxication Act will be issued by the Director and certified by the Toxicology Section Discipline Chief..
(b) Once issued, permits will remain effective concurrent with the term of employment of the individual. At the Directors discretion permits may be rescinded.
(5) Methods.
(a) Analysis of blood, urine, or other bodily substances for the presence of volatile compounds; such as alcohol (ethanol), shall be performed by Gas Chromatography utilizing internal standard headspace injection, in accordance with the Toxicology Section’s Standard Operating Procedure for that analysis.
(b) Analysis of blood, urine, or other bodily substances for drugs or other chemical substances will utilize a screening technology in conjunction with Gas Chromatography Mass Spectrometry confirmation, in accordance with the Toxicology Section’s Standard Operating Procedure for that analysis.
Authors: Dale A. Carpenter, Jack R. Kalin
Statutory Authority: Code of Ala. 1975, §32‑5A‑194, as amended.
History: New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88‑660 to the Alabama Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed July 7, 2003; effective August 11, 2003.
370‑1‑1‑.04 Field Sobriety Screening Tests.
(1) Purpose. This rule describes the approved TECHNIQUE (Procedure) as referred to by §32‑6‑49.13 Code of Ala. 1975, as amended, that insures each Field Sobriety Screening Test performed on an operator of a commercial vehicle is performed in a standardized and reliable fashion.
(2) Definitions and Abbreviations.
(a) Alcohol‑ For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.
(3) Approved Procedure. The test battery comprising the Horizontal Gaze Nystagmus (HGN), One‑leg Stand (OLS), and Walk and Turn (WAT) Field Sobriety Tests as described and applied according to the DUI Detection and Standardized Field Sobriety Testing Student Manual, Publication HS178, Transportation Safety Institute, National Highway Traffic Safety Administration, U.S. Department of Transportation in its June, 1992 or successor printings.
(4) Training Certificates. A certificate will be issued to each officer who successfully passes written and practical examinations during a minimum of 16 hours of Standardized Field Sobriety Test Training which included no less than two controlled drinking workshops using volunteer drinkers and wherein the administration and interpretation of the HGN, OLS, and WAT tests was presented.
Authors: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: §32‑6‑49.13, as amended.
History: New Rule: Filed July 24, 1996; effective August 28, 1996. Amended: Filed July 7, 2003; effective August 11, 2003.
370‑1‑1‑.05 Field Sobriety Screening Devices.
(1) Purpose. This rule list the approved “FIELD BREATHALYZER or OTHER APPROVED DEVICE” as referred to by §32‑6‑49.13 Code of Ala. 1975, as amended. Additionally, this rule describes training requirements and minimal operational criteria necessary for accurate and reliable results.
(2) Definitions and Abbreviations:
(a) Alcohol. For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.
(b) Observation. For the purpose of this rule, use of the term observation shall mean to watch. Prior to the administration of a field sobriety screening test employing an approved field sobriety screening device a subject must be under the observation of the arresting officer for a period of not less than twenty minutes.
(3) Approved Training. Training afforded by the manufacturer of an approved device and/or training received as a part of the Alabama Preliminary Breath Testing Instrument course shall constitute approved training.
(4) Operation of Devices.
(a) Officers shall use the device according to the manufacturer’s operational procedure.
(b) Every subject must be under observation by the arresting officer for a period of twenty minutes before the screening device test is administered.
(5) Calibration. Calibration shall be checked every twelve (12) months. The device passes the calibration check if it renders a reading between 0.030 g/210L and 0.050 g/210L inclusive on a 0.040 g/210L percent standard delivered from either a wet bath simulator or a dry gas cylinder.
(6) Training and Calibration Records. It shall be the responsibility of each law enforcement agency to maintain permanent records documenting the training of each officer in the use of approved field sobriety screening devices and the annual calibration check results on each device in use by the law enforcement agency.
(7) Approved Field Sobriety Screening Device List.
NOTE: For the purpose of this rule, variations or enhancements that do not have any bearing on the alcohol measuring capability of the instrument, such as the addition of a modem, external printer or passive sampling systems are approved.
(a) Alco‑Sensor III (Device Model)
Intoximeters, Inc., Saint Louis, MO (Manufacturer)
(b) Alco‑Sensor IV (Device Model)
Intoximeters, Inc., Saint Louis, MO (Manufacturer)
(c) Alcotest 7410 (Device Model)
Draeger Safety, Inc., Durango CO (Manufacturer)
(d) Lifeloc FC‑10 (Device Model)
Lifeloc Technologies, Wheat Ridge, CO (Manufacturer)
(e) Lifeloc FC‑20 (Device Model)
Lifeloc Technologies, Wheat Ridge, CO (Manufacturer)
(f) Intoxilyzer 300 (Device Model)
CMI, Inc., Owensboro, KY (Manufacturer)
(g) S‑D2 (Device Model)
CMI, Inc., Owensboro, KY (Manufacturer)
Authors: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: Code of Ala. 1975, §32‑6‑49.13, as amended.
History: New Rule: Filed July 24, 1996; effective August 28, 1996. Amended: Filed July 7, 2003; effective August 11, 2003.
Appendix A
Evidential Breath Alcohol Testing Quality Control.
Purpose.
The purpose of this section is to inform the public of the quality control or good laboratory practices that are utilized by the Alabama Department of Forensic Sciences to support Breath Alcohol Testing in the field. The practices described in this section only demonstrate that each Draeger Alcotest 7110 MKIII is capable of performing as expected. The method as described in 370‑1‑1‑.01(4) is the only sequence of steps that isolates alcohol (ethanol) from a subject to accurately determine the amount. Subsequently the quality control built into the method is the only process that verifies a particular Breath Alcohol Test did indeed perform as expected. Since the authority derived from §32‑5A‑194 Code of Ala. 1975, as amended, is limited to a method to perform a chemical analysis to determine the alcoholic content of a subjects blood the following information pertaining to good laboratory practice does not constitute a rule.
(1) Pre‑installation Evaluation. Each Draeger Alcotest 7110 MKIII is evaluated by the Alabama Department of Forensic Sciences Technical Director or his designee prior to being placed in operation. The evaluation will demonstrate the ability of each Draeger Alcotest 7110 MKIII to identify and flag specific conditions; as well as, verify the analytical integrity of the instrument.
(a) Purging Error. Place the instrument in the “Error Check” mode. Restrict the air flow into the ambient air inlet while the pump is running. This will prompt the instrument to display “Check Sampling Hose” and sound an audible alarm. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(b) Minimum Volume Not Achieved. Place the instrument in the “Error Check” mode. At the prompt “Please Blow”, deliver a deficient sample volume. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(c) Blowing Time Too Short. Place the instrument in the “Error Check” mode. At the prompt “Please Blow”, deliver a sample of sufficient volume and deficient duration. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(d) Blowing Not Allowed. Place the instrument in the “Error Check” mode. At any time other than when the instrument indicates “Please Blow” deliver a sample into the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(e) Ready To Blow Expired. Place the instrument in the “Error Check” mode. At the prompt “Please Blow” do not provide a sample. After three (3) minutes has elapsed this error will be triggered by the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(f) Ambient Air Check. Place the instrument in the “Error Check” mode. When the instrument begins to purge itself, direct an ethanol vapor (typically from a 0.020 g/210L dry gas cylinder) near the breath hose inlet, but not directly into the breath hose inlet. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(g) Interference. Place the instrument in the “Error Check” mode. Prepare a methanol control by adding 105 microliters of methanol to 500 milliliters of distilled water and dispense into a simulator. At the prompt “Please Blow”, deliver a sufficient sample into the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(h) Mouth Alcohol. Place the instrument in the “Error Check” mode. At the prompt “Please Blow” the evaluator should rinse his or her mouth with a common mouthwash containing ethanol, then deliver a sufficient sample into the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(i) Accuracy Check Fail. Place the instrument in the “Error Check” mode. Connect the 0.020 g/210L dry gas cylinder to the 0.080 g/210L gas port and initiate a test. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(j) Standard Gas Supply. Disconnect the dry gas cylinders from the instrument and initiate a test. Record pass if the message “Stnd Gas Supply” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(k) Outside +/‑ Tolerance. Initiate an administrative test sequence. At the prompt “Please Blow” deliver a sufficient sample. When prompted to deliver the second sample, deliver a sufficient sample which varies in concentration from the first by at least 0.021 g/ 210 L. Record pass if the message “Outside +/‑ Tol” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(l) No Admittance. The evaluator should attempt to initiate a restricted function without the use of an appropriate key. Record pass if the message “No Admittance” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(m) Linearity Check. Utilizing manufactured solutions prepare simulators with the following ethanol concentrations: 0.000g/210L, 0.020g/210L (+/‑ 0.005 g/210L), 0.040 g/210L (+/‑ 0.005 g/210L), 0.080 g/210L (+/‑ 5%), 0.120 g/210L (+/‑ 5%), 0.200 g/210L (+/‑ 5%), and 0.500 g/210L (+/‑ 5%). Place the instrument in the “Acc‑Check” mode. When instructed, connect the appropriate simulator to the instrument. Repeat this procedure three times for each ethanol control. Average the results obtained for each concentration from the three runs. To record pass, the average results must fall within the following parameters: 0.000 g/210L, 0.020 g/210L (+/‑ 0.005 g/210L), 0.040 g/210L (+/‑ 0.005 g/210L), 0.080 g/210L (+/‑ 5%), 0.120 g/210L (+/‑ 5%), 0.200 g/210L (+/‑ 5%), and 0.500 g/210L (+/‑ 5%). If the instrument does not pass, initiate the necessary corrective actions to achieve the desired specifications.
(n) Breath Temperature Check. Place the instrument in “ABA” mode. Initiate a testing sequence consisting of three breath samples. When instructed to do so deliver three breath samples into the instrument from a precisely controlled water bath apparatus adjusted to a temperature of approximately 34.0oC. Repeat this procedure using a precisely controlled water bath apparatus adjusted to a temperature of approximately 37.0oC. Record pass if the instrument records a temperature within +/‑ 0.3oC of the actual temperature. If the instrument does not pass initiate the necessary corrective actions to restore the instrument to proper working condition.
(o) Acetone Interference Check. Prepare a solution consisting of 500 milliliters of a manufactured 0.080 g/210L solution of ethanol and 950 microliters of Acetone in a simulator. Initiate an administrative test sequence. At the prompt “Please Blow”, deliver a sufficient sample into the instrument. Record pass if the message “Interference” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.
(p) Voltage Range Check. Verify the Draeger Alcotest 7110 MKIII’s performance capability throughout a voltage range of approximately 90‑200 volts AC and 12 volts DC.
1. With the instrument connected to a variable AC power supply, adjust the voltage to approximately 90 volts AC. Initiate a standard check sequence consisting of three measurements of a 0.080 g/210L dry gas standard. Record pass if the instrument records an average result between 0.076‑0.084 g/210L. If the instrument does not pass, initiate the necessary corrective actions to achieve the desired specification.
2. With the instrument connected to a variable AC power supply, adjust the voltage to approximately 220 volts AC. Initiate a standard check sequence consisting of three measurements of a 0.080 g/210L dry gas standard. Record pass if the instrument records an average result between 0.076‑0.084 g/210L. If the instrument does not pass, initiate the necessary corrective actions to achieve the desired specification.
3. With the instrument connected to a DC power supply, adjust the voltage to approximately 12 volts DC. Initiate a standard check sequence consisting of three measurements of a 0.080 g/210L dry gas standard. Record pass if the instrument records an average result between 0.076‑0.084 g/210L. If the instrument does not pass initiate the necessary corrective actions to achieve the desired specification.
(q) Barometer Check. Establish communication with the instrument in the diagnostic screen mode. Compare the barometric pressure as indicated by the instrument to the laboratories barometer. Record pass if the difference between the two readings is not greater than 5%. If the instrument does not pass initiate the necessary corrective actions to restore the instrument to proper working condition.
(r) Standard Deviation Check. Initiate a standard check sequence consisting of ten measurements of a 0.080% dry gas standard. Record pass if the instrument records the following: an average result between 0.076‑0.084 g/210L and a standard deviation of less than 0.0025. If the instrument does not pass initiate the necessary corrective actions to restore the instrument to proper working condition.
(2) Data Download Review. The Test Data collected and stored by each Draeger Alcotest 7110 MKIII in the field is transferred to the Alabama Department of Forensic Sciences. Upon transfer, the data is systematically reviewed to identify instrument problems and to perform trend analyses. This data transfer allows the Alabama Department of Forensic Sciences to review essentially 100% of the Breath Alcohol Tests performed statewide.
(a) Communication Check. The Draeger Alcotest 7110 Data Retrieval and Archiving Program produces a Summary of Automatic Data Retrieval. The summary readily identifies those instruments for which communication was not established. For those instruments that automatic communication was unsuccessful, manually establish communication. If communication problems persist investigate the source of the problem and document.
(b) Message Check. Open the Message File (50 File) to identify the automatic Instrument Messages and Operator Messages retrieved by the current download. Review the messages to determine the needs of the instrument, operator, or location (supplies). Document any actions taken.
(c) Instrument Parameter Check. Open the Data File (10 File) to identify Instrument Parameter data retrieved by the current download. Isolate the data corresponding to each of the following parameters collected before and after the subject samples for review: Ambient Air Pressure, 12V DC Power Supply, Battery Voltage, IR Signal, EC Offset, Cuvette Temperature, Breath Hose Temperature, Breath Probe Temperature, Breath Temperature Thermistors, Flow Sensor, Pre‑Test Diagnostic Check, and Post‑Test Diagnostic Check. For each parameter identify when if any an instrument recorded a result outside the specified operating range. Investigate the source of any problem and document any corrective action.
(d) Dry Gas Configuration Check. Open the Data File (10 File) to identify the Dry Gas Configuration data retrieved by the current download. Isolate the data corresponding to each of the following categories for review: 0.02 Gas Lot Number, 0.02 Gas Expiration Date, 0.08 Gas Lot Number, 0.08 Gas Expiration Date, 0.02 Target Concentration, 0.02 Relative Tolerance, 0.02 Absolute Tolerance, 0.08 Target Concentration, 0.08 Relative Tolerance, and 0.08 Absolute Tolerance. For each category identify if the instrument contains the correct configuration. Investigate any discrepancy and document any corrective action.
(e) Error and Accuracy Check. Open the Data File (10 File) to identify the Error and Accuracy Check data retrieved by the current download. Isolate the data corresponding to each of the following errors or measurements: Error, Error 2, Error 3, Error 4, 0.02 gas data, and 0.08 gas data. For each category identify when if any an instrument recorded a result outside the specified operating range. Also review the 0.02 g/210L and 0.08 g/210L gas data to identify low or high trends. Investigate the source of any problem or trend and document any corrective action.
(3) Electronic Inspection. The Electronic Inspection serves primarily as a quality assurance role by being a back‑up inspection to the instrument set‑up procedures and Data Download Review. The Electronic Inspection also is an opportunity to evaluate instrument performance over an extended time frame.
(a) Diagnostic Screen Check. Initiate the Draeger Alcotest 7110 Data Retrieval and Archiving Program. Establish communication with the instrument through the Diagnostic Screen. Evaluate the following displayed parameters: Instrument Serial Number, Instrument Location, Firmware Version, Date, Time, Ambient Air Pressure, 12VDC Power Supply, Battery Voltage, IR Signal, EC Offset, Cuvette Temperature, Breath Hose Temperature, Breath Probe Temperature, Breath Temperature 1, Breath Temperature 2, Function Key, and Flow Sensor. Investigate any discrepancy and document any corrective action.
(b) Interactive Screen Check. Initiate the Draeger Alcotest 7110 Data Retrieval and Archiving Program. Establish communication with the instrument through the Interactive Screen. Evaluate the following displayed parameters: Measuring Units, Calibration Configuration, and Cylinder Pressure Limit. Investigate any discrepancy and document any corrective action.
(c) Calibration Check Plot. Open the Data File (10 File) to identify the Accuracy Check data retrieved by the instrument over the last 6 months. Plot the Accuracy Check data for both the 0.02 and 0.08 g/210L Accuracy Checks. Investigate the source of any problem or trend and document any corrective action.
(4) Annual Re‑Evaluation/Pre‑Installation Evaluation. Regardless of the performance of an instrument in the field each instrument will be brought back to the Alabama Department of Forensic Sciences laboratory once a year for evaluation. This evaluation will consist of the battery of tests described under (1) Pre‑Installation Evaluation.
Authors: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: Code of Ala. 1975, §32‑6‑49.13, as amended.
History: New Appendix: Filed July 7, 2003; effective August 11, 2003.
Ed Note: Appendix is attached to Rule 370‑1‑1‑.01, as per certification filed July 7, 2003; effective August 11, 2003.
Ala.Code 1975 § 12-21-300 is now unconstitutional
Melendez-Diaz v. Massachusetts was decided today by the United States Supreme Court. This much anticipated opinion clears up the debate about whether certificates prepared by a lab technician or similar person are admissible against a defendant in trial without the witness being present to actually testify about what the certificate says.It is very clear that lab reports are produced in anticipation of trial and they are in fact “testimonial” as defined by Crawford v. Washington and Davis v. Alaska. Those cases hold that the defendant has the right to confront the witnesses against him and that testimonial evidence shall not be admissible unless the witness is “unavailable” and the defendant has previously had the right to cross-examine the witness.Justice Scalia delivered the opinion of the court and was joined by Stevens, Souter, Thomas and Ginsburg. Justice Kennedy wrote the dissent and was joined by Roberts, Alito, and Breyer. The dissent argues that these reports should be exempt from the confrontation because they are not normal witnesses, they are neutral scientists. Justice Scalia does a masterful job of demonstrating what a bunch of garbage that is.
“Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.”
I really like the fact that Justice Scalia isn’t afraid to recognize that many times these “scientists” or other examiners are really playing for the home team. Several other rationales for allowing this in without making the witnesses come were made by the dissent and all of them were shot down as well. This really is simple…the defendant has the right to confront the witnesses against him so the prosecutor needs to bring them to court.Where do we go from here? The court gave it’s blessing to two different ways to handle these witnesses. Some states can require them in every case. Some states have laws that makes the prosecutor give notice of intent to introduce the certificates and then the defendant has to object. Either way will pass constitutional muster.As it relates to DUI cases, all blood and urine cases will need to have the witnesses from the lab there at trial. Additionally, I believe that this case invalidates Ala.Code 1975 § 12-21-300 et seq. These statute deal with testimonial evidence that the defendant has the right to confront. All lawyers need to read this case and be able to articulate the proper objections.
“Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.”
I really like the fact that Justice Scalia isn’t afraid to recognize that many times these “scientists” or other examiners are really playing for the home team. Several other rationales for allowing this in without making the witnesses come were made by the dissent and all of them were shot down as well. This really is simple…the defendant has the right to confront the witnesses against him so the prosecutor needs to bring them to court.Where do we go from here? The court gave it’s blessing to two different ways to handle these witnesses. Some states can require them in every case. Some states have laws that makes the prosecutor give notice of intent to introduce the certificates and then the defendant has to object. Either way will pass constitutional muster.As it relates to DUI cases, all blood and urine cases will need to have the witnesses from the lab there at trial. Additionally, I believe that this case invalidates Ala.Code 1975 § 12-21-300 et seq. These statute deal with testimonial evidence that the defendant has the right to confront. All lawyers need to read this case and be able to articulate the proper objections.
Saturday, February 28, 2009
How can you defend drunk driving?
It always surprises me how many people are outraged that I would defend someone accused by the police of a crime – particularly of drunk driving. Arrest increasingly means guilt, and there is a public perception of criminal defense attorneys as being obstructionist, nefarious and somehow unethical. Certainly, every defense attorney tires of the ubiquitous cocktail party question: “How can you defend guilty people?”
The answer to that question is complex, involving issues of possible innocence, inaccurate evidence, overcharging by the prosecutor, guarding constitutional rights, untrustworthy testimony, ensuring a fair trial, protection from unfair laws and harsh/illegal punishment — and just keeping the government honest. One of the better answers was provided some years ago by United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.
Some fine day, you or someone close to you will be arrested and charged with a criminal offense. That person may or may not be innocent, but you will pray that he or she is defended against the overwhelming forces of the government by a competent attorney.
If that doesn’t do it, read To Kill a Mockingbird by Harper Lee.
Preliminary Breath Test Not Reliable
A preliminary breath test (PBT) is a small handheld breath testing device used by police officers to determine whether or not to arrest a person for DUI. Typically, administration of the PBT follows field sobriety tests. Based upon a motorist’s performance of field sobriety tests and the results of the PBT, a police officer makes a determination to arrest or release the driver.
PBTs are also used to convict minors of “possessing” alcohol. When police are summoned to an underage party where they suspect minors have consumed alcohol, PBT testing results can be used to establish that a minor had consumed alcohol. Courts regularly accept these PBT results, concluding beyond a reasonable doubt that the minor had consumed alcohol based upon the test.
But what if the PBT establishes that a driver is under the legal limit?
Livingston County District Court Judge Theresa M. Brennan recently ruled that a person accused of driving drunk could not rely upon a preliminary breath test to establish his innocence. Despite the fact that this judge routinely relies upon PBTs to justify arrests and even to convict minors of consuming alcohol, Judge Brennan held that PBT results are “too unreliable” to disclose to jurors. Too unreliable? Or is it that Judge Brennan is so pro-prosecution that she feels it is undesirable to let an innocent man escape a wrongful conviction?
HGN: How reliable is the Horizontal Gaze Nystagmus test?
“The Robustness of the Horizontal Gaze Nystagmus (HGN) Test,” an article by the top federal researcher of Standardized Field Sobriety Tests, Marcelline Burns, was supposed to be released in 2004. This study was supposed to explore different variations of the mysterious HGN eye test, where officers move a finger or pen before a person’s face, declaring the person drunk or sober in under a minute. The study was designed to explore the impact of varying speeds of moving the finger, whether holding the finger too high mattered, and if laying down could produce flawed results. But the study was never released in 2004. Or in 2005. Or in 2006…
In 2007, a lot of DUI defense lawyers started asking, “Whatever happened to that ‘robustness’ study those fellas in Washington were supposed to release?”
According to NHTSA, if a person has four or more clues out of six possible clues on the HGN eye test, they are correctly categorized as over 0.10 BAC. According to these folks, officers are correct 77% of the time, and police love nothing more than to talk about this “Gigmus” test before juries because it sounds so cool, like CSI. When the legal limit dropped to .08, the same researchers “proved” that the tests were accurate at the new lower limit without modification, and they even started to claim greater accuracy. In recent years, NHTSA has been claiming something akin to a nearly flawless ability to discriminate between drunk and sober people based solely upon the eye test.
Well, I kept looking for this robustness study because I’m stubborn, surfing the NHTSA site to see if the study was published. One naysayer claimed it would never be published because something didn’t sit well with the field sobriety gurus.
In March 2008, I came across a study claiming to be the so-called “robustness” study and reported my findings to DUI lawyers across the country. I flipped through it, and it essentially claimed that no matter how an officer does the test or under what conditions, the test can always prove that a person was drunk. I guess that is what “robustness” means. But I tend to disagree with the conclusions of the report since I see first hand how police officers screw the eye test up day after day. That, and I do not see how a study could be named four years before it is published, unless the researchers had a goal in mind and something to prove.
Jim Medley, a great Texas DUI lawyer (www.jimmedley.com), actually sat down and worked on the numbers based upon the raw data reported in the study. Apparently the NHTSA people did have something to prove, and they intentionally set out to do it regardless of the evidence.
Mr. Medley found that 67% of people tested by experienced police officers found sober people to be drunk even though the officers properly performed the test. When the test was improperlyperformed too fast, that number rose to 78%. It was even more alarming when Mr. Medley uncovered the fact that 92% of sober participants were declared intoxicated when the officers held the eyes too high or held the finger or pen too close to the eyes.
Steve Rubenzer, PhD, ABPP, (http://www.forensicsobrietyassessment.com) one of the nation’s leading field sobriety test experts in statistical analysis of field sobriety tests and the HGN test pointed out that 77% of sober people failed the HGN test overall, bringing us full circle to the original numbers touted by NHTSA. This leads one to wonder, “If the test was ever 77% accurate, how can it also be 77% inaccurate too?”
In 1996, Michigan courts acknowledged that the HGN test was scientifically acceptable and reliable without ever holding an evidentiary hearing. The courts jumped on a case where nobody understood the test, with the officer improperly describing how the test was supposed to be performed. See People v. Berger, 217 Mich. App. 213, 551 N.W.2d 421 (1996). Despite several motions and appeals, Michigan courts refuse to revisit the issue.
Road Block Procedures
November 1990
DOT HS 807 656
The Use of Sobriety Checkpoints
for
Impaired Driving Enforcement
TRAFFIC SAFETY PROGRAMS
Office of Enforcement
and
Emergency Services
PREFACE
Impaired driving and impaired-related crashes constitute one of the nation's leading
health problems. These events result in more deaths each year than do total
homicides. The impact is particularly severe among young people, age 15-24, where
impaired driving is the leading cause of death. Clearly, impaired driving and impaired
related crashes constitute a major threat to the safety and well-being of the public. The
costs resulting from alcohol-related crashes should be recognized and weighed against
the costs and inconveniences associated with efforts to reduce them.
These guidelines have been designed to provide law enforcement agencies with a
uniform and successful method to plan, operate and evaluate sobriety checkpoints.
When implemented in conjunction with departmental policy and any constraints
imposed by state or local courts, sobriety checkpoints provide an effective enforcement
tool to combat the impaired driving problem.
Any agency considering the use of sobriety checkpoints should integrate them with a
continuing, systematic and aggressive program, including vigorous enforcement, public
information and education. The purpose of the program is to maximize the deterrent
effect and increase the perception of "risk of apprehension" of motorists who would
operate a vehicle while impaired by alcohol or drugs. There is convincing evidence
that the use of checkpoints has a marked, dramatic effect on reducing alcohol-related
crashes in a community.1
The National Highway Traffic Safety Administration wishes to express its appreciation
to Sergeant Barbara Bent, Dayton Police Department, Dayton, Ohio; Sheriff Earl Smith,
Franklin County Sheriff's Department, Columbus, Ohio; 1st Sergeant Larry Larkin,
Indiana State Police; Maryland State Police; Lieutenant Nancy Brunzos, Sergeant
David Kochubka and Technician Floyd Wing, Metropolitan Police Department,
Washington, D.C.; 1st Lieutenant Al Slaughter, Michigan State Police; Major Raymond
Dutcher, New York State Police; Deputy Charles Fortunato, Palm Beach County
Sheriff's Department, West Palm Beach, Florida; Sergeant Keith Adams, Redding
Police Department, Redding, California. We are grateful for the effort and contribution
from each of these individuals.
We also wish to acknowledge the International Association of Chiefs of Police (IACP)
and the National Sheriffs' Association for their recommendations and participation. Mr.
Charles Peltier (IACP) provided valuable technical assistance.
1 "Sobriety Checkpoints for DWI Enforcement - A Review of Current Research,"
National Highway Traffic Safety Administration, 1987
GUIDELINES FOR SOBRIETY CHECKPOINTS
These guidelines suggest and describe operational procedures that police
administrators may want to consider in order to ensure that sobriety checkpoints are
used legally, effectively and safely. These points are consistent with those specified in
recent court decisions, including the United States Supreme Court ruling in Michigan
Department of State Police v. Sitz, upholding the constitutionality of sobriety
checkpoints. An effective sobriety checkpoint program consists of the following
components:
Ongoing Program to Deter Impaired Driving
Judicial Support
Existing Departmental Policy
Site Selection
Special Warning Devices
Visible Police Authority
Chemical Testing Logistics
Contingency Planning
Detection and Investigation Techniques
Operational Briefings
Comprehensive Public Information and Education Programs
Data Collection and Evaluation
Ongoing Program to Deter Impaired Driving - Agencies considering
implementing sobriety checkpoints should integrate them with a continuing,
systematic and aggressive enforcement program. Vigorous enforcement, public
information and education need to be part of this program. The purpose of the
checkpoint is to maximize the deterrent effect and increase the perception of "risk
of apprehension" to motorists who would operate a vehicle while impaired by
alcohol or other drugs. The use of checkpoints alone will not maintain the
perception of risk essential to an effective general deterrence program.
Judicial Support - When officials decide to use sobriety checkpoints, they should
involve their prosecuting attorney (district attorney, attorney general, etc.) in the
planning process to determine legally acceptable procedures. This person can
assist in identifying any legally mandated requirements and the types of evidential
information that will be needed to prosecute cases emanating from checkpoint
apprehension.
The jurisdiction's presiding judge should be informed of the proposed checkpoints
and procedures, an essential step if the judiciary is to accept their use. The judge
2
can provide insight on what activities would be required to successfully adjudicate
such cases.
Prosecutors, judges, and other involved members of the criminal justice system can
be invited to observe the actual operation of the checkpoint.
Existing Policy/Guidelines - Before using sobriety checkpoints, the agency must
have specifically established procedures outlining how the checkpoints are to be
conducted. The courts have been very clear in requiring the advance planning of
sobriety checkpoints. Failure to do so has been used as evidence that the
checkpoint techniques involved unfettered discretion. The policy should also
assure that the checkpoints are conducted with a minimal amount of intrusion or
motorist inconvenience.
Site Selection - Planning should assure the safety of the general public and law
enforcement officers when selecting an operational site. Sobriety checkpoints
must not create more of a traffic hazard than the results of the driving behavior they
are trying to modify.
Planners should remember to select a site that allows officers to pull vehicles out of
the traffic stream without causing significant subjective intrusion (fright) to the
drivers (United States v. Ortiz 422 U.S. 891 (1975)) and/or creating a safety
hazard, e.g., by creating a traffic backup. Furthermore, officers' safety must be
taken into account when deciding where to locate the checkpoint.
The department should objectively outline criteria used in the site selection
process, e.g., an unusual incidence of alcohol/drug involved crashes or driving
violations, unusual number of nighttime single vehicle crashes or other
documented alcohol/drug related vehicular incidents.
The site should permit the safe flow of traffic through the checkpoint.
Consideration should be given to the posted speed limits, traffic volume and
visibility. Most jurisdictions have the capability to review the Average Traffic
Volume (ATV) during the surveillance period for major roadways in their area.
Once a jurisdiction has decided on possible locations for the sobriety checkpoints,
the effect on traffic flow can be determined by ascertaining how long each interview
takes, then, multiplying that time by the number of available officers, and finally,
dividing that figure into the average number of vehicles which can be expected at
that location. This will suggest whether all vehicles can be examined without
causing a traffic build-up.
If the traffic volume precludes stopping every vehicle, a nondiscretionary scheme
should be adopted, in advance, for stopping some subset of vehicles. In Delaware
3
v. Prouse, 440 U.S. 648 (1979) the United States Supreme Court indicates that
stopping all cars would be an acceptable method of conducting spot checks. In a
concurring opinion, Justice Blackmum (joined by Justice Powell) suggests that
other methods would also be acceptable, such as stopping every tenth car that
passes a given point. If every vehicle is not stopped, the method used to
determine which ones will be stopped must appear in the administrative order
authorizing the use of the sobriety checkpoint.
The site should have maximum visibility from each direction and sufficient
illumination for the safety of both the motorists and officers. If permanent lighting is
unavailable, ensure that adequate portable lighting is provided. Planners should
also ensure that sufficient adjoining space is available to pull vehicles off the
traveled portion of the roadway. Any other conditions that may pose a hazard
should be taken into consideration.
Warning Devices - Special care should be taken to warn approaching motorists of
the sobriety checkpoint. Such notice can be accomplished using warning signs
indicating the upcoming checkpoint; flares or fusees (if weather permits) and safety
cones or similar devices for marking and/or closing lanes on the roadway;
permanent or portable lighting to illuminate the checkpoint area; and, marked patrol
vehicles with warning lights flashing.
A sign or device should be placed to provide advance warning stating why
motorists are stopped. The U.S. Supreme Court has found that visible signs of the
officers' authority generate less concern and fright on the part of lawful travelers,
and is therefore less of a subjective intrusion (United States v. Martinez-Fuerte,
428 U.S. 643 (1976)).
The placement and types of traffic control devices used should comply with federal,
state or local transportation codes. Planners should check with appropriate
agencies administering the location and placement of signing devices.
Visible Police Authority - The visibility of uniformed officers and their marked
vehicles makes the police presence obvious. It also serves to reassure motorists
of the legitimate nature of the activity. This is an important aspect of the sobriety
checkpoint and part of the effort to reduce the intrusion to the passing motorists
affected by the checkpoint.
A sworn, uniformed officer should be assigned to provide on- site supervision of
the checkpoint operation. This officer should be responsible for the overall
operation and should be well versed in contingency planning for the checkpoint.
The checkpoint should be staffed by a sufficient number of uniformed personnel to
4
assure a safe and efficient operation, based on traffic volume, roadway size, type
of location, etc.
Chemical Testing Logistics - Since impaired driving arrests are anticipated at the
selected location, the logistics of chemical testing must also be included. If
possible, a mobile breath testing unit with a qualified operator could be physically
located at the checkpoint. If one is not available, a system for expeditiously
transporting suspected violators to chemical test sites should be established. In
applicable locations, a Drug Recognition Technician (DRT) should be available, at
a suitable location, to examine subjects who may be impaired by drugs other than
or in combination with alcohol.
Contingency Planning - Any deviation from the predetermined plan for stopping
vehicles should be thoroughly documented and the reason for the deviation given
(e.g., traffic backing up, intermittent inclement weather). Courts have allowed this
as long as documentation of the reason requiring the deviation from the interview
sequence is kept (United States v. Prichard, 645 F2d 854). If such an event
occurs, jurisdictions should have prepared an alternative plan, in advance, to
handle the checkpoint.
Detection and Investigation Techniques - An agency considering the use of
sobriety checkpoints should ensure that the participating officers are properly
trained in detecting impaired drivers. The use of sobriety checkpoints which allow
impaired drivers to pass through undetected will not achieve the desired
deterrence effect. Officers should look for the following indicators of impairment
during initial contact with a driver at a checkpoint: odor of alcoholic beverages or
other drugs (marijuana, hashish, some inhalants); bloodshot eyes; alcohol
containers or drug paraphernalia; fumbling fingers; slurred speech; admission of
drinking or drug use; inconsistent responses; detection of alcohol by a passive
alcohol sensor; etc. It is highly desirable that officers assigned to conduct the
sobriety checkpoint receive the DWI Detection and Standardized Field Sobriety
Testing (SFST) training. Police are using these techniques taught in the SFST
course to quickly detect whether a driver is impaired.
Once an officer's suspicion is raised, further investigation can take place out of the
traffic lane without impeding the flow of traffic. If an officer believes it is necessary
to move a suspect's car after he or she has reasonable suspicion of impairment, it
should be moved by someone other than the suspect.
The officer should then continue the investigation using non- incriminating divided
attention questions (e.g., by the officer simultaneously asking for driver's license
and vehicle registration, requiring the subject to do two things at once) and the
administration of the SFST battery, which includes the Walk and Turn test,
5
One-Leg Stand test, and Horizontal Gaze Nystagmus. After the completion of the
SFST, the officer may use a portable breath testing device (PBT), if permissible in
that jurisdiction. An evidential test to determine the blood alcohol concentration
(BAC) should then be administered.
If the officer determines the subject is impaired and obtains a low BAC, a DRT
should be utilized for further investigation. If a DRT is not available, normal
departmental procedures regarding drug impaired drivers should be followed.
Operational Briefings - The success of a sobriety checkpoint depends greatly
upon smooth and efficient operations. The persons selected as supervisors of the
operation should be briefed thoroughly on all procedures. This includes
maintaining as little delay to the motoring public as possible and keeping records of
any deviation from the original operational plan.
Persons selected to staff the checkpoint should be briefed on both its purpose and
operation. They should understand the necessity for standard and uniform
questions asked of drivers to avoid subjectivity. The use of an operational briefing
is one way to accomplish this.
Public Information and Education - To obtain maximum benefit in terms of its
general deterrent effect, sobriety checkpoints should be publicized aggressively.
Most drivers will probably never encounter a sobriety checkpoint, but will only learn
of it through media reports or by word of mouth. These two valuable forms of
public communication will greatly enhance any such program and should be
employed consistently.
Checkpoints are an ideal opportunity to give educational materials regarding
impaired driving, speeding, child restraint and seat belt usage, as well as seasonal
reminders such as schools opening, to persons stopped at the checkpoint.
Data Collection and Evaluation - A systematic method of data collection and
evaluation should be used to monitor and ensure standardization and consistency
of sobriety checkpoints. This may be done by measuring the reaction of the public
to the checkpoint and administrative evaluation of collected data.
Public reaction - This can be measured by immediate feedback received by
officers at the site of the sobriety checkpoint. Also, a short questionnaire which
includes an explanation of why the checkpoint is conducted, given to drivers
stopped at the checkpoint, can provide data. It may ask of the driver such
questions as; Does the driver believe the checkpoint is fair? Did the driver mind
being stopped briefly? Did the driver feel checkpoints help deter driving while
impaired? The response can be completed later and mailed back to the agency.
6
If the jurisdiction has the resources, a stamped, self-addressed postcard can be
used as the questionnaire.
Evaluation - This concerns the extent to which the program's implementation,
operation and efficiency meets targets set for the program. The following items
may be addressed:
Number of vehicles passing through the checkpoint
Average time delay to motorists
Number of motorists detained for field sobriety testing
Number and types of arrests
Identification of unusual incidents such as safety problems or other
concerns
Reaction of police officers participating in the sobriety checkpoint,
including degree of support and effect on morale
Perception of the quality of checkpoint cases brought before
prosecutors and judges, including special problems
Change in number of impaired driving arrests
Change in number of impaired driving related nighttime crashes
Other information deemed necessary by individual agencies
The National Highway Traffic Safety Administration strongly supports the regular use of
sobriety checkpoints. They should be integrated into an overall drunk and drugged
driving program, along with vigorous selective enforcement, public information and
education. Effective enforcement of drunk driving laws, combined with swift and sure
license removal, provides the most important element for reducing alcohol-related fatal
and serious injury crashes. Roadside sobriety checkpoints have provided among the
most effective results of any enforcement procedure. Checkpoints are an important
part of a comprehensive enforcement program designed to raise the perceived
probability among potential impaired drivers that they will be stopped and arrested for
DWI.
7
Sample Questionnarie
SOBRIETY CHECKPOINTS
1. Has your agency used sobriety checkpoints in the past?
YES _______ NO _______
2. Is your agency currently using sobriety checkpoints?
YES _______ NO _______
3. Does your agency plan on using sobriety checkpoints in the future?
YES _______ NO _______
4. If your agency uses checkpoints, how many arrests were made at checkpoints for
impaired driving offenses? Add additional years if necessary.
NUMBER _______ YEAR _______
5. List other law enforcement agencies in your state who conduct sobriety checkpoints.
_________________________________________________________________
_________________________________________________________________
6. List any significant decline in blood alcohol levels of impaired
driving arrests or reduction in alcohol related crashes attributed to sobriety
checkpoints.
_________________________________________________________________
________________________________________________________________
_________________________________________________________________
7. Does your agency have a written policy governing sobriety checkpoints?
YES _______ NO _______
A - 1
APPENDIX A
SOBRIETY CHECKPOINTS BRIEFING GUIDE
Prior to conducting the sobriety checkpoint, the following items should be discussed
and thoroughly explained to all officers and supervisors participating in the detail.
Routine information, such as location, times, and personnel assignments, including
chemical test operators, should be included at each briefing.
Explain the goal(s) of the roadside sobriety checkpoint.
Discuss the sobriety checkpoint location and the statistical data
supporting the chosen checkpoint site.
Stress the need for safety for both the officers and motorists
Assign the sobriety checkpoint operational supervisor. The
supervisor shall remain at the checkpoint location to oversee all
on-site enforcement activities.
Discuss the placement of personnel and traffic control devices in
conformance with established roadside sobriety checkpoint
guidelines and federal, state and/or municipal signing regulations.
Develop and establish a systematic approach to stopping the
vehicles as they enter the checkpoint location. For example, all
vehicles or every fifth vehicle will be stopped. At no time will a
random stop be utilized. If a problem such as traffic congestion
occurs and requires a change in the pattern of stopping vehicles,
the on-scene supervisor will determine if there will be a change
from the systematic vehicles stopping sequence. All changes, no
matter how slight, shall be documented including the time of
change with an appropriate explanation of the reason for the
change.
Instruct all participating officers to explain the purpose of the
checkpoint to the motorist as they approach a vehicle. A uniform
statement/question to the driver should be used, for example:
A - 2
"Good Evening. You have been stopped at a Department Name
sobriety checkpoint. We use checkpoints in an effort to detect and
deter the impaired driver. Have you consumed any alcohol or
controlled substance today?"
If the driver's answer is no and there is no other compelling reason
to detain the vehicle, the officer should permit the motorist to
proceed.
If the driver's answer is yes, ask how much and when. Depending
on the answers and other circumstances, the officer should decide
if further investigation is warranted. If so, direct the driver to safely
exit the vehicle and escort him or her to the designated area for
further investigation. If not, permit the motorist to proceed.
Sobriety checkpoint pamphlets, questionnaires and occupant
protection booklets should be given to each motorist stopped
during the detection phase.
Also during the detection phase, the officer should see if the
occupants of the stopped vehicle are properly using required
safety restraints (including child safety seats). If a violation exists
a verbal reminder may be given.
Instruct officers to inspect the driver for the smell of alcoholic
beverages or other drugs, bloodshot eyes, fumbling fingers, slurred
speech, admission of drinking or drug use, abusive language,
inconsistent responses, etc. Be observant of the interior of the
vehicle for alcoholic beverage containers, drug paraphernalia or
other contraband, such as weapons, that are in plain view.
The motorist should be permitted to proceed on his/her way unless
the officer observes evidence of intoxication, or there is evidence
of another serious violation requiring immediate action.
Those persons suspected of impairment should be subjected to the
battery of Standardized Field Sobriety Tests. If impairment is
obvious and the blood alcohol level (BAC) is low, a Drug
Recognition Technician (DRT) should evaluate the subject. If a
DRT is not available, normal departmental policy for handling
impaired drivers should be followed.
A - 3
Searches of a motor vehicle, the driver, or passengers, shall be
conducted only when consistent with departmental policies or when
legally permissible.
A motorist who wishes to avoid the checkpoint by legally turning
before enterning the checkpoint area should be allowed to do so
unless a traffic violation(s) is observed or probable cause exists to
take other action. The act of avoiding a sobriety checkpoint does
not consititute grounds for a stop.
An accurate and complete written evaluation report shall be
prepared for each sobriety checkpoint operation. Items in the
report should include but are not limited to:
- number of vehicles passing through the checkpoints
- number of motorists detained for Standardized Field
Sobriety Testing
- average time delay for motorists
- number and types of arrests
- identification of unusual incidents such as safety problems
or other concerns
- reaction of police officers participating in the sobriety
checkpoint, including the effect on morale and degree of
officer support
- reaction of the motoring public to the sobriety checkpoint
B - 1
MODEL POLICY
SOBRIETY CHECKPOINT GUIDELINES
I. PURPOSE
The purpose of this policy is to provide guidelines for the physical
construction and operation of a sobriety checkpoint in order to maximize
the deterrent effect and increase the perception of "risk of apprehension"
of motorists who would operate a vehicle while impaired by alcohol or
other drugs.
II. POLICY
It shall be the policy of this law enforcement agency to implement a
sobriety checkpoint program. This will be done as part of a
comprehensive enforcement program. To ensure standardization of this
program a clear and concise set of written guidelines has been developed
governing procedures on how checkpoints will be operated within this
jurisdiction.
To implement this policy this agency must:
. Satisfy federal, state and local legal requirements.
. Conduct checkpoints with a minimal amount of intrusion or motorist
inconvenience.
. Assure the safety of the general public as well as law enforcement
officers involved.
. Provide for an objective site selection process based on relevant
data.
. Provide for public information and education to maximize the
deterrent effect and heighten awareness of the impaired driving
problem.
B - 2
. Provide for a systematic procedure for data collection and after
impact analysis report to monitor and ensure standardization and
consistency of the sobriety checkpoint program.
. Officer selection should be based on experience and training.
Operational procedures will be covered during a briefing period
prior to each checkpoint.
III. DEPARTMENTAL GUIDELINES
Written guidelines, consistent with existing agency policies, prepared in
advance of the checkpoint program must:
A. Be approved by the agency's chief law enforcement official or
designee prior to commencement of the checkpoint.
B. Specify signing, safety equipment, warning devices, barriers, etc. that
will be used, their placement and proper use at the scene. This
specification will be consistent with applicable standards and
regulations. (See the relevant state or local manuals on traffic control
devices, etc.)
C. Specify the method for selecting motorists to be contacted, e.g.,
"every vehicle, every fifth vehicle," etc. to ensure objectivity.
D. Provide for an operational briefing of personnel prior to each
checkpoint. At this time designate assignments and respective
duties.
E. Specify dialogue and educational material to be used by checkpoint
personnel.
F. Provide for the removal of vehicles to the predetermined area when
further investigation is required.
G. Public reaction to the use of sobriety checkpoints can be obtained by
several different methods. Recommended procedures for obtaining
feedback are:
1. Mail in surveys.
2. Verbal feedback from motorists at checkpoint site.
3. Periodic public opinion polls.
B - 3
IV. PROCEDURES
A. Site Selection
This department must be able to objectively outline criteria utilized in the
site selection process:
1. Alcohol/Drug related traffic experiences.
a. Unusual incidence of alcohol/drug related crashes.
b. Alcohol/drug impaired driving violations.
c. Unusual number of nighttime single vehicle crashes.
d. Any other documented alcohol/drug related vehicular incidents.
2. Select locations which permit the safe flow of traffic through the
checkpoint.
a. Consideration should be given to posted speed limits, traffic
volume and visibility.
b. Ensure sufficient adjoining space is available to pull vehicles off
the traveled portion of the roadway.
c. Consider other conditions that may pose a hazard.
3. The site should have maximum visibility from each direction and
sufficient illumination. If permanent lighting is unavailable ensure that
portable lighting is provided.
B. PERSONNEL
1. A sworn, uniformed officer will be assigned to provide on-scene
supervision of the checkpoint.
2. The checkpoint will be staffed by a sufficient number of uniformed
personnel to assure a safe and efficient operation.
C. ADVANCE NOTIFICATION
1. For the purpose of public information and education, this agency will
announce to the media that checkpoints will be conducted.
B - 4
2. This agency will encourage media interest in the sobriety checkpoint
program to enhance public perception of aggressive enforcement, to
heighten the deterrent effect and to assure protection of constitutional
rights.
3. This agency will provide advance notification of the checkpoint to
public safety agencies expected to be impacted.
D. MOTORISTS WARNINGS / SAFETY METHODS
1. Special care is required to warn approaching motorists of the sobriety
checkpoint.
2. Basic equipment will include, but is not limited to:
a. Warning signs placed in advance of the checkpoint
b. Flares, fusees, or similar devices
c. Safety cones or similar devices
d. Permanent/portable lighting
e. Marked patrol vehicles
3. The use, placement and types of traffic control devices must comply
with federal, state, or local transportation codes.
E. CONTINGENCY PLANNING
Any deviation from the predetermined guidelines must thoroughly
document the reason for the deviation. (i.e. traffic backing up, intermittent
inclement weather.)
F. DATA COLLECTION AND EVALUATION
To monitor and ensure standardization and consistency of the sobriety
checkpoint program a systematic method of data collection will be
incorporated.
1. After action report may include, but is not limited to:
a. Time, date, and location of checkpoint.
b. Weather conditions.
c. Number of vehicles passing through checkpoint.
d. Average time delay to motorists.
e. Predetermined order of selecting motorists.
B - 5
f. Number and types of arrests.
g. Number of motorists detained for field sobriety testing.
h. Identification of unusual incidents such as safety problems/other
concerns.
2. To assist in determining the effectiveness of a checkpoint operation, a
periodic impact analysis will include the following types of information.
a. Crash rate reduction.
b. Impaired driving offenses.
c. Impaired driving convictions
d. Public opinion survey to determine increased perception of
detection and apprehension of impaired drivers.
DOT HS 807 656
The Use of Sobriety Checkpoints
for
Impaired Driving Enforcement
TRAFFIC SAFETY PROGRAMS
Office of Enforcement
and
Emergency Services
PREFACE
Impaired driving and impaired-related crashes constitute one of the nation's leading
health problems. These events result in more deaths each year than do total
homicides. The impact is particularly severe among young people, age 15-24, where
impaired driving is the leading cause of death. Clearly, impaired driving and impaired
related crashes constitute a major threat to the safety and well-being of the public. The
costs resulting from alcohol-related crashes should be recognized and weighed against
the costs and inconveniences associated with efforts to reduce them.
These guidelines have been designed to provide law enforcement agencies with a
uniform and successful method to plan, operate and evaluate sobriety checkpoints.
When implemented in conjunction with departmental policy and any constraints
imposed by state or local courts, sobriety checkpoints provide an effective enforcement
tool to combat the impaired driving problem.
Any agency considering the use of sobriety checkpoints should integrate them with a
continuing, systematic and aggressive program, including vigorous enforcement, public
information and education. The purpose of the program is to maximize the deterrent
effect and increase the perception of "risk of apprehension" of motorists who would
operate a vehicle while impaired by alcohol or drugs. There is convincing evidence
that the use of checkpoints has a marked, dramatic effect on reducing alcohol-related
crashes in a community.1
The National Highway Traffic Safety Administration wishes to express its appreciation
to Sergeant Barbara Bent, Dayton Police Department, Dayton, Ohio; Sheriff Earl Smith,
Franklin County Sheriff's Department, Columbus, Ohio; 1st Sergeant Larry Larkin,
Indiana State Police; Maryland State Police; Lieutenant Nancy Brunzos, Sergeant
David Kochubka and Technician Floyd Wing, Metropolitan Police Department,
Washington, D.C.; 1st Lieutenant Al Slaughter, Michigan State Police; Major Raymond
Dutcher, New York State Police; Deputy Charles Fortunato, Palm Beach County
Sheriff's Department, West Palm Beach, Florida; Sergeant Keith Adams, Redding
Police Department, Redding, California. We are grateful for the effort and contribution
from each of these individuals.
We also wish to acknowledge the International Association of Chiefs of Police (IACP)
and the National Sheriffs' Association for their recommendations and participation. Mr.
Charles Peltier (IACP) provided valuable technical assistance.
1 "Sobriety Checkpoints for DWI Enforcement - A Review of Current Research,"
National Highway Traffic Safety Administration, 1987
GUIDELINES FOR SOBRIETY CHECKPOINTS
These guidelines suggest and describe operational procedures that police
administrators may want to consider in order to ensure that sobriety checkpoints are
used legally, effectively and safely. These points are consistent with those specified in
recent court decisions, including the United States Supreme Court ruling in Michigan
Department of State Police v. Sitz, upholding the constitutionality of sobriety
checkpoints. An effective sobriety checkpoint program consists of the following
components:
Ongoing Program to Deter Impaired Driving
Judicial Support
Existing Departmental Policy
Site Selection
Special Warning Devices
Visible Police Authority
Chemical Testing Logistics
Contingency Planning
Detection and Investigation Techniques
Operational Briefings
Comprehensive Public Information and Education Programs
Data Collection and Evaluation
Ongoing Program to Deter Impaired Driving - Agencies considering
implementing sobriety checkpoints should integrate them with a continuing,
systematic and aggressive enforcement program. Vigorous enforcement, public
information and education need to be part of this program. The purpose of the
checkpoint is to maximize the deterrent effect and increase the perception of "risk
of apprehension" to motorists who would operate a vehicle while impaired by
alcohol or other drugs. The use of checkpoints alone will not maintain the
perception of risk essential to an effective general deterrence program.
Judicial Support - When officials decide to use sobriety checkpoints, they should
involve their prosecuting attorney (district attorney, attorney general, etc.) in the
planning process to determine legally acceptable procedures. This person can
assist in identifying any legally mandated requirements and the types of evidential
information that will be needed to prosecute cases emanating from checkpoint
apprehension.
The jurisdiction's presiding judge should be informed of the proposed checkpoints
and procedures, an essential step if the judiciary is to accept their use. The judge
2
can provide insight on what activities would be required to successfully adjudicate
such cases.
Prosecutors, judges, and other involved members of the criminal justice system can
be invited to observe the actual operation of the checkpoint.
Existing Policy/Guidelines - Before using sobriety checkpoints, the agency must
have specifically established procedures outlining how the checkpoints are to be
conducted. The courts have been very clear in requiring the advance planning of
sobriety checkpoints. Failure to do so has been used as evidence that the
checkpoint techniques involved unfettered discretion. The policy should also
assure that the checkpoints are conducted with a minimal amount of intrusion or
motorist inconvenience.
Site Selection - Planning should assure the safety of the general public and law
enforcement officers when selecting an operational site. Sobriety checkpoints
must not create more of a traffic hazard than the results of the driving behavior they
are trying to modify.
Planners should remember to select a site that allows officers to pull vehicles out of
the traffic stream without causing significant subjective intrusion (fright) to the
drivers (United States v. Ortiz 422 U.S. 891 (1975)) and/or creating a safety
hazard, e.g., by creating a traffic backup. Furthermore, officers' safety must be
taken into account when deciding where to locate the checkpoint.
The department should objectively outline criteria used in the site selection
process, e.g., an unusual incidence of alcohol/drug involved crashes or driving
violations, unusual number of nighttime single vehicle crashes or other
documented alcohol/drug related vehicular incidents.
The site should permit the safe flow of traffic through the checkpoint.
Consideration should be given to the posted speed limits, traffic volume and
visibility. Most jurisdictions have the capability to review the Average Traffic
Volume (ATV) during the surveillance period for major roadways in their area.
Once a jurisdiction has decided on possible locations for the sobriety checkpoints,
the effect on traffic flow can be determined by ascertaining how long each interview
takes, then, multiplying that time by the number of available officers, and finally,
dividing that figure into the average number of vehicles which can be expected at
that location. This will suggest whether all vehicles can be examined without
causing a traffic build-up.
If the traffic volume precludes stopping every vehicle, a nondiscretionary scheme
should be adopted, in advance, for stopping some subset of vehicles. In Delaware
3
v. Prouse, 440 U.S. 648 (1979) the United States Supreme Court indicates that
stopping all cars would be an acceptable method of conducting spot checks. In a
concurring opinion, Justice Blackmum (joined by Justice Powell) suggests that
other methods would also be acceptable, such as stopping every tenth car that
passes a given point. If every vehicle is not stopped, the method used to
determine which ones will be stopped must appear in the administrative order
authorizing the use of the sobriety checkpoint.
The site should have maximum visibility from each direction and sufficient
illumination for the safety of both the motorists and officers. If permanent lighting is
unavailable, ensure that adequate portable lighting is provided. Planners should
also ensure that sufficient adjoining space is available to pull vehicles off the
traveled portion of the roadway. Any other conditions that may pose a hazard
should be taken into consideration.
Warning Devices - Special care should be taken to warn approaching motorists of
the sobriety checkpoint. Such notice can be accomplished using warning signs
indicating the upcoming checkpoint; flares or fusees (if weather permits) and safety
cones or similar devices for marking and/or closing lanes on the roadway;
permanent or portable lighting to illuminate the checkpoint area; and, marked patrol
vehicles with warning lights flashing.
A sign or device should be placed to provide advance warning stating why
motorists are stopped. The U.S. Supreme Court has found that visible signs of the
officers' authority generate less concern and fright on the part of lawful travelers,
and is therefore less of a subjective intrusion (United States v. Martinez-Fuerte,
428 U.S. 643 (1976)).
The placement and types of traffic control devices used should comply with federal,
state or local transportation codes. Planners should check with appropriate
agencies administering the location and placement of signing devices.
Visible Police Authority - The visibility of uniformed officers and their marked
vehicles makes the police presence obvious. It also serves to reassure motorists
of the legitimate nature of the activity. This is an important aspect of the sobriety
checkpoint and part of the effort to reduce the intrusion to the passing motorists
affected by the checkpoint.
A sworn, uniformed officer should be assigned to provide on- site supervision of
the checkpoint operation. This officer should be responsible for the overall
operation and should be well versed in contingency planning for the checkpoint.
The checkpoint should be staffed by a sufficient number of uniformed personnel to
4
assure a safe and efficient operation, based on traffic volume, roadway size, type
of location, etc.
Chemical Testing Logistics - Since impaired driving arrests are anticipated at the
selected location, the logistics of chemical testing must also be included. If
possible, a mobile breath testing unit with a qualified operator could be physically
located at the checkpoint. If one is not available, a system for expeditiously
transporting suspected violators to chemical test sites should be established. In
applicable locations, a Drug Recognition Technician (DRT) should be available, at
a suitable location, to examine subjects who may be impaired by drugs other than
or in combination with alcohol.
Contingency Planning - Any deviation from the predetermined plan for stopping
vehicles should be thoroughly documented and the reason for the deviation given
(e.g., traffic backing up, intermittent inclement weather). Courts have allowed this
as long as documentation of the reason requiring the deviation from the interview
sequence is kept (United States v. Prichard, 645 F2d 854). If such an event
occurs, jurisdictions should have prepared an alternative plan, in advance, to
handle the checkpoint.
Detection and Investigation Techniques - An agency considering the use of
sobriety checkpoints should ensure that the participating officers are properly
trained in detecting impaired drivers. The use of sobriety checkpoints which allow
impaired drivers to pass through undetected will not achieve the desired
deterrence effect. Officers should look for the following indicators of impairment
during initial contact with a driver at a checkpoint: odor of alcoholic beverages or
other drugs (marijuana, hashish, some inhalants); bloodshot eyes; alcohol
containers or drug paraphernalia; fumbling fingers; slurred speech; admission of
drinking or drug use; inconsistent responses; detection of alcohol by a passive
alcohol sensor; etc. It is highly desirable that officers assigned to conduct the
sobriety checkpoint receive the DWI Detection and Standardized Field Sobriety
Testing (SFST) training. Police are using these techniques taught in the SFST
course to quickly detect whether a driver is impaired.
Once an officer's suspicion is raised, further investigation can take place out of the
traffic lane without impeding the flow of traffic. If an officer believes it is necessary
to move a suspect's car after he or she has reasonable suspicion of impairment, it
should be moved by someone other than the suspect.
The officer should then continue the investigation using non- incriminating divided
attention questions (e.g., by the officer simultaneously asking for driver's license
and vehicle registration, requiring the subject to do two things at once) and the
administration of the SFST battery, which includes the Walk and Turn test,
5
One-Leg Stand test, and Horizontal Gaze Nystagmus. After the completion of the
SFST, the officer may use a portable breath testing device (PBT), if permissible in
that jurisdiction. An evidential test to determine the blood alcohol concentration
(BAC) should then be administered.
If the officer determines the subject is impaired and obtains a low BAC, a DRT
should be utilized for further investigation. If a DRT is not available, normal
departmental procedures regarding drug impaired drivers should be followed.
Operational Briefings - The success of a sobriety checkpoint depends greatly
upon smooth and efficient operations. The persons selected as supervisors of the
operation should be briefed thoroughly on all procedures. This includes
maintaining as little delay to the motoring public as possible and keeping records of
any deviation from the original operational plan.
Persons selected to staff the checkpoint should be briefed on both its purpose and
operation. They should understand the necessity for standard and uniform
questions asked of drivers to avoid subjectivity. The use of an operational briefing
is one way to accomplish this.
Public Information and Education - To obtain maximum benefit in terms of its
general deterrent effect, sobriety checkpoints should be publicized aggressively.
Most drivers will probably never encounter a sobriety checkpoint, but will only learn
of it through media reports or by word of mouth. These two valuable forms of
public communication will greatly enhance any such program and should be
employed consistently.
Checkpoints are an ideal opportunity to give educational materials regarding
impaired driving, speeding, child restraint and seat belt usage, as well as seasonal
reminders such as schools opening, to persons stopped at the checkpoint.
Data Collection and Evaluation - A systematic method of data collection and
evaluation should be used to monitor and ensure standardization and consistency
of sobriety checkpoints. This may be done by measuring the reaction of the public
to the checkpoint and administrative evaluation of collected data.
Public reaction - This can be measured by immediate feedback received by
officers at the site of the sobriety checkpoint. Also, a short questionnaire which
includes an explanation of why the checkpoint is conducted, given to drivers
stopped at the checkpoint, can provide data. It may ask of the driver such
questions as; Does the driver believe the checkpoint is fair? Did the driver mind
being stopped briefly? Did the driver feel checkpoints help deter driving while
impaired? The response can be completed later and mailed back to the agency.
6
If the jurisdiction has the resources, a stamped, self-addressed postcard can be
used as the questionnaire.
Evaluation - This concerns the extent to which the program's implementation,
operation and efficiency meets targets set for the program. The following items
may be addressed:
Number of vehicles passing through the checkpoint
Average time delay to motorists
Number of motorists detained for field sobriety testing
Number and types of arrests
Identification of unusual incidents such as safety problems or other
concerns
Reaction of police officers participating in the sobriety checkpoint,
including degree of support and effect on morale
Perception of the quality of checkpoint cases brought before
prosecutors and judges, including special problems
Change in number of impaired driving arrests
Change in number of impaired driving related nighttime crashes
Other information deemed necessary by individual agencies
The National Highway Traffic Safety Administration strongly supports the regular use of
sobriety checkpoints. They should be integrated into an overall drunk and drugged
driving program, along with vigorous selective enforcement, public information and
education. Effective enforcement of drunk driving laws, combined with swift and sure
license removal, provides the most important element for reducing alcohol-related fatal
and serious injury crashes. Roadside sobriety checkpoints have provided among the
most effective results of any enforcement procedure. Checkpoints are an important
part of a comprehensive enforcement program designed to raise the perceived
probability among potential impaired drivers that they will be stopped and arrested for
DWI.
7
Sample Questionnarie
SOBRIETY CHECKPOINTS
1. Has your agency used sobriety checkpoints in the past?
YES _______ NO _______
2. Is your agency currently using sobriety checkpoints?
YES _______ NO _______
3. Does your agency plan on using sobriety checkpoints in the future?
YES _______ NO _______
4. If your agency uses checkpoints, how many arrests were made at checkpoints for
impaired driving offenses? Add additional years if necessary.
NUMBER _______ YEAR _______
5. List other law enforcement agencies in your state who conduct sobriety checkpoints.
_________________________________________________________________
_________________________________________________________________
6. List any significant decline in blood alcohol levels of impaired
driving arrests or reduction in alcohol related crashes attributed to sobriety
checkpoints.
_________________________________________________________________
________________________________________________________________
_________________________________________________________________
7. Does your agency have a written policy governing sobriety checkpoints?
YES _______ NO _______
A - 1
APPENDIX A
SOBRIETY CHECKPOINTS BRIEFING GUIDE
Prior to conducting the sobriety checkpoint, the following items should be discussed
and thoroughly explained to all officers and supervisors participating in the detail.
Routine information, such as location, times, and personnel assignments, including
chemical test operators, should be included at each briefing.
Explain the goal(s) of the roadside sobriety checkpoint.
Discuss the sobriety checkpoint location and the statistical data
supporting the chosen checkpoint site.
Stress the need for safety for both the officers and motorists
Assign the sobriety checkpoint operational supervisor. The
supervisor shall remain at the checkpoint location to oversee all
on-site enforcement activities.
Discuss the placement of personnel and traffic control devices in
conformance with established roadside sobriety checkpoint
guidelines and federal, state and/or municipal signing regulations.
Develop and establish a systematic approach to stopping the
vehicles as they enter the checkpoint location. For example, all
vehicles or every fifth vehicle will be stopped. At no time will a
random stop be utilized. If a problem such as traffic congestion
occurs and requires a change in the pattern of stopping vehicles,
the on-scene supervisor will determine if there will be a change
from the systematic vehicles stopping sequence. All changes, no
matter how slight, shall be documented including the time of
change with an appropriate explanation of the reason for the
change.
Instruct all participating officers to explain the purpose of the
checkpoint to the motorist as they approach a vehicle. A uniform
statement/question to the driver should be used, for example:
A - 2
"Good Evening. You have been stopped at a Department Name
sobriety checkpoint. We use checkpoints in an effort to detect and
deter the impaired driver. Have you consumed any alcohol or
controlled substance today?"
If the driver's answer is no and there is no other compelling reason
to detain the vehicle, the officer should permit the motorist to
proceed.
If the driver's answer is yes, ask how much and when. Depending
on the answers and other circumstances, the officer should decide
if further investigation is warranted. If so, direct the driver to safely
exit the vehicle and escort him or her to the designated area for
further investigation. If not, permit the motorist to proceed.
Sobriety checkpoint pamphlets, questionnaires and occupant
protection booklets should be given to each motorist stopped
during the detection phase.
Also during the detection phase, the officer should see if the
occupants of the stopped vehicle are properly using required
safety restraints (including child safety seats). If a violation exists
a verbal reminder may be given.
Instruct officers to inspect the driver for the smell of alcoholic
beverages or other drugs, bloodshot eyes, fumbling fingers, slurred
speech, admission of drinking or drug use, abusive language,
inconsistent responses, etc. Be observant of the interior of the
vehicle for alcoholic beverage containers, drug paraphernalia or
other contraband, such as weapons, that are in plain view.
The motorist should be permitted to proceed on his/her way unless
the officer observes evidence of intoxication, or there is evidence
of another serious violation requiring immediate action.
Those persons suspected of impairment should be subjected to the
battery of Standardized Field Sobriety Tests. If impairment is
obvious and the blood alcohol level (BAC) is low, a Drug
Recognition Technician (DRT) should evaluate the subject. If a
DRT is not available, normal departmental policy for handling
impaired drivers should be followed.
A - 3
Searches of a motor vehicle, the driver, or passengers, shall be
conducted only when consistent with departmental policies or when
legally permissible.
A motorist who wishes to avoid the checkpoint by legally turning
before enterning the checkpoint area should be allowed to do so
unless a traffic violation(s) is observed or probable cause exists to
take other action. The act of avoiding a sobriety checkpoint does
not consititute grounds for a stop.
An accurate and complete written evaluation report shall be
prepared for each sobriety checkpoint operation. Items in the
report should include but are not limited to:
- number of vehicles passing through the checkpoints
- number of motorists detained for Standardized Field
Sobriety Testing
- average time delay for motorists
- number and types of arrests
- identification of unusual incidents such as safety problems
or other concerns
- reaction of police officers participating in the sobriety
checkpoint, including the effect on morale and degree of
officer support
- reaction of the motoring public to the sobriety checkpoint
B - 1
MODEL POLICY
SOBRIETY CHECKPOINT GUIDELINES
I. PURPOSE
The purpose of this policy is to provide guidelines for the physical
construction and operation of a sobriety checkpoint in order to maximize
the deterrent effect and increase the perception of "risk of apprehension"
of motorists who would operate a vehicle while impaired by alcohol or
other drugs.
II. POLICY
It shall be the policy of this law enforcement agency to implement a
sobriety checkpoint program. This will be done as part of a
comprehensive enforcement program. To ensure standardization of this
program a clear and concise set of written guidelines has been developed
governing procedures on how checkpoints will be operated within this
jurisdiction.
To implement this policy this agency must:
. Satisfy federal, state and local legal requirements.
. Conduct checkpoints with a minimal amount of intrusion or motorist
inconvenience.
. Assure the safety of the general public as well as law enforcement
officers involved.
. Provide for an objective site selection process based on relevant
data.
. Provide for public information and education to maximize the
deterrent effect and heighten awareness of the impaired driving
problem.
B - 2
. Provide for a systematic procedure for data collection and after
impact analysis report to monitor and ensure standardization and
consistency of the sobriety checkpoint program.
. Officer selection should be based on experience and training.
Operational procedures will be covered during a briefing period
prior to each checkpoint.
III. DEPARTMENTAL GUIDELINES
Written guidelines, consistent with existing agency policies, prepared in
advance of the checkpoint program must:
A. Be approved by the agency's chief law enforcement official or
designee prior to commencement of the checkpoint.
B. Specify signing, safety equipment, warning devices, barriers, etc. that
will be used, their placement and proper use at the scene. This
specification will be consistent with applicable standards and
regulations. (See the relevant state or local manuals on traffic control
devices, etc.)
C. Specify the method for selecting motorists to be contacted, e.g.,
"every vehicle, every fifth vehicle," etc. to ensure objectivity.
D. Provide for an operational briefing of personnel prior to each
checkpoint. At this time designate assignments and respective
duties.
E. Specify dialogue and educational material to be used by checkpoint
personnel.
F. Provide for the removal of vehicles to the predetermined area when
further investigation is required.
G. Public reaction to the use of sobriety checkpoints can be obtained by
several different methods. Recommended procedures for obtaining
feedback are:
1. Mail in surveys.
2. Verbal feedback from motorists at checkpoint site.
3. Periodic public opinion polls.
B - 3
IV. PROCEDURES
A. Site Selection
This department must be able to objectively outline criteria utilized in the
site selection process:
1. Alcohol/Drug related traffic experiences.
a. Unusual incidence of alcohol/drug related crashes.
b. Alcohol/drug impaired driving violations.
c. Unusual number of nighttime single vehicle crashes.
d. Any other documented alcohol/drug related vehicular incidents.
2. Select locations which permit the safe flow of traffic through the
checkpoint.
a. Consideration should be given to posted speed limits, traffic
volume and visibility.
b. Ensure sufficient adjoining space is available to pull vehicles off
the traveled portion of the roadway.
c. Consider other conditions that may pose a hazard.
3. The site should have maximum visibility from each direction and
sufficient illumination. If permanent lighting is unavailable ensure that
portable lighting is provided.
B. PERSONNEL
1. A sworn, uniformed officer will be assigned to provide on-scene
supervision of the checkpoint.
2. The checkpoint will be staffed by a sufficient number of uniformed
personnel to assure a safe and efficient operation.
C. ADVANCE NOTIFICATION
1. For the purpose of public information and education, this agency will
announce to the media that checkpoints will be conducted.
B - 4
2. This agency will encourage media interest in the sobriety checkpoint
program to enhance public perception of aggressive enforcement, to
heighten the deterrent effect and to assure protection of constitutional
rights.
3. This agency will provide advance notification of the checkpoint to
public safety agencies expected to be impacted.
D. MOTORISTS WARNINGS / SAFETY METHODS
1. Special care is required to warn approaching motorists of the sobriety
checkpoint.
2. Basic equipment will include, but is not limited to:
a. Warning signs placed in advance of the checkpoint
b. Flares, fusees, or similar devices
c. Safety cones or similar devices
d. Permanent/portable lighting
e. Marked patrol vehicles
3. The use, placement and types of traffic control devices must comply
with federal, state, or local transportation codes.
E. CONTINGENCY PLANNING
Any deviation from the predetermined guidelines must thoroughly
document the reason for the deviation. (i.e. traffic backing up, intermittent
inclement weather.)
F. DATA COLLECTION AND EVALUATION
To monitor and ensure standardization and consistency of the sobriety
checkpoint program a systematic method of data collection will be
incorporated.
1. After action report may include, but is not limited to:
a. Time, date, and location of checkpoint.
b. Weather conditions.
c. Number of vehicles passing through checkpoint.
d. Average time delay to motorists.
e. Predetermined order of selecting motorists.
B - 5
f. Number and types of arrests.
g. Number of motorists detained for field sobriety testing.
h. Identification of unusual incidents such as safety problems/other
concerns.
2. To assist in determining the effectiveness of a checkpoint operation, a
periodic impact analysis will include the following types of information.
a. Crash rate reduction.
b. Impaired driving offenses.
c. Impaired driving convictions
d. Public opinion survey to determine increased perception of
detection and apprehension of impaired drivers.
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