N.M. Admin. Code § 7.33.2.10

Current through Register Vol. 35, No. 23, December 10, 2024

Section 7.33.2.10 - BREATH ALCOHOL INSTRUMENTS USED BY LAW ENFORCEMENT AGENCIES

A. Initial certification. Any breath alcohol instrument to be used for implied consent evidential testing must be approved and certified by SLD. Certification for breath alcohol instruments shall be for a period of up to one year, expiring September 30. A certificate shall be issued for each instrument and shall be maintained by the responsible agency. Instruments requiring initial certification must meet all of the following criteria and such criteria must be met before placement and use of the instrument in the field.

(1) SLD shall inspect and perform a calibration check. This check may take place at SLD.

(2) At least one certified key operator shall be responsible for the maintenance of each breath alcohol instrument. The key operator is not required to be a member of the agency in which the instrument is placed.

B. Continuing responsibilities.

(1) Instruments.

(a) Copies of the logbook forms should be submitted to SLD no later than the 10th day of the following month. Electronic records pertaining to all tests administered on the instrument(s) will be transmitted as scheduled by SLD.

(b) Four proficiency samples should be analyzed yearly on each such certified instrument.

(c) A calibration check on the instrument(s) shall be conducted at least once every seven calendar days or a 0.08 calibration check shall be conducted with each subject test or both.

(d) All breath alcohol instruments shall be returned to SLD twice annually for inspection. Such inspection shall consist of, but not be limited to:

(i) establishing the current status of the breath alcohol instrument;

(ii) evaluating the breath alcohol instrument's electronic functions and settings;

(iii) analyzing a series of controlled ethyl alcohol solutions with an accuracy requirement of ± 5 percent or .005, whichever is greater, on all target values;

(iv) installing all updates, modifications, or changes that have been approved by SLD;

(v) reviewing the breath alcohol instrument's sensitivity for the detection of any interfering substances.

(2) Instrument location.

(a) All agencies maintaining a breath alcohol instrument in a fixed location shall furnish each instrument with an adequate operational environment.

(b) An adequate operational environment for the breath alcohol instrument shall:

(i) have adequate ventilation to minimize volatile organic compounds;

(ii) restrict access to the instrument to only authorized personnel;

(iii) be evaluated for radio frequency interference.

(c) A breath alcohol instrument assigned to a fixed location may be used as a portable breath alcohol instrument if the option is available. Transitions for instruments between portable and fixed shall be recorded in the logbook.

(d) Any portable, certified breath alcohol instrument is approved for use anywhere in the state of New Mexico.

C. Recertification of instruments.

(1) Certification is renewed annually based on compliance with this rule.

(2) A certificate shall be issued for each instrument and shall be maintained by the responsible agency.

D. Denial, suspension, and revocation.

(1) SLD may refuse to certify or may suspend or revoke the certification of any breath alcohol instrument for implied consent testing for any one or more of the following causes:

(a) the instrument in use is not on the list of SLD approved testing instruments;

(b) calibration results do not meet SLD established criteria;

(c) if an agency fails to identify and maintain a certified key operator for each breath alcohol instrument, certification of the instrument shall be suspended or revoked;

(d) other failures to abide by this rule may also result in suspension or revocation.

(2) SLD shall provide notice to an agency before taking an adverse action with regard to the certification of the agency's instrument.

(3) Agencies seeking review of a denial, suspension or revocation of the instrument's certification may request a stay of suspension or revocation for good cause. The request must be in writing and in accordance with Subsection B of 7.33.2.18 NMAC.

(4) Agencies seeking review of any denial, suspension or revocation of an instrument's certification may request a review in writing pursuant to Subsection B of 7.33.2.18 NMAC.

E. Repair of instruments. SLD is not required to support or service any breath alcohol instruments that are not owned by SLD. Law enforcement agencies shall be required to pay for any repairs or adjustments of an SLD owned instrument caused as a result of any negligence, incompetence or misconduct in the operation or handling of the instrument as determined by SLD review.

N.M. Admin. Code § 7.33.2.10

7.33.2.10 NMAC - Rp, 7.33.2.8 NMAC, 7.33.2.11 NMAC, 7.33.2.16 NMAC and 7.33.2.17 NMAC, 04-30-2010