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STATEMENT OF BASIS AND PURPOSE AND SPECIFIC STATUTORY AUTHORITY FOR Amendments to 5 CCR 1005-2 Rules Pertaining to Testing for Alcohol and Other Drugs Adopted by the State Board of Health on January 21, 2009 Basis and Purpose. Under Section 42-4-1304(4), C.R.S., the Board of Health has the authority to promulgate these rules concerning the testing for alcohol and other drugs, including rules designed “as are necessary to ensure that collection and testing of samples is accomplished to the fullest extent.” Section § 42-4-1301.1(5), C.R.S., requires the Colorado Department of Public Health and Environment to set standards concerning the health of the person being tested and the accuracy of such tests. Through the State Board of Health Rules, the following are governed: Collection of specimens, specimen type, specimen storage, certification of evidential breath alcohol test (EBAT) devices, certification of operators and instructors of evidential breath alcohol test devices, certification of standard solutions, standard operating procedure for evidential breath alcohol test(s), permanent and mobile facility requirements, and certification of laboratories performing alcohol and drug testing. These rules establish minimum standards for certification and approval of entities and processes utilized for alcohol and drug testing. These rules are applicable to: samples taken while driving under the influence, driving while impaired, driving with excessive alcohol content; vehicular assaults and vehicular homicides involving an operator while under the influence of alcohol or one or more drugs or both; the testing of samples of blood or other bodily substances from the bodies of pilots in command, motorboat or sailboat operators in command, or drivers and pedestrians fifteen years of age or older who die within four hours after involvement in a crash involving a motor vehicle, a motorboat, a sailboat or an aircraft; and consumption of alcohol by underage persons and records related thereto. The purposes for revisions to 5 CCR 1005-2 are as follows: To remove language from the rules referencing the delayed breath specimens and testing procedures. Collection of delayed breath specimens was discontinued July 1, 2007, consistent with legislative authority to do so through the adoption of SB 04-159 (effective April 1, 2004) (relevant portions codified at 42-4-1301(6)©, C.R.S.); Effective July 1, 2008, laboratories are no longer certified to perform testing on delayed breath specimens; To update the forensic toxicology laboratory certification requirements for the purpose of making the rules more consistent with the recognized standards of practice these laboratories follow. This is to ensure that the most accurate blood and breath alcohol and blood and urine drug results are reported; 1 To clarify language in the existing rules to reduce confusion or vagueness after the removal of obsolete testing requirements; Removal of the statement read by the law enforcement officer, because state statutes and case law do not require that a law enforcement officer explicitly offer a choice of testing method to a subject, only that they honor any choice expressed by a subject (unless otherwise provided by law); Increase the number of years that a laboratory and law enforcement agency must retain documentation of testing, from 2 years to 5 years; Establish standardized documentation regarding testing that must be retained for every test; Establish additional requirements for the collection of specimens from deceased persons; and Clarify the Department’s ability to investigate complaints. Specific Statutory Authority. These rules are promulgated pursuant to the following statutes: Sections 42-4-1301, 42-4-1301.1, 42-4-1303, 42-4-1304, and 25-1-108, C.R.S. and are consistent with Sections 18-3-106, 18-3-205 and 18-13-122, C.R.S. These statutes address Vehicle and Traffic Alcohol and Drug Offenses, Vehicular Assaults, Vehicular Homicides and Consumption of Alcohol by Underage Persons. Major Factual and Policy Issues Encountered. The decision to make changes to these Rules is based on the following reasons: Update and remove wording referencing delayed breath specimen collection and testing after the update and certification process was completed July 1, 2008 in accordance with the adoption of SB 04-159 (relevant portions codified at Section 42-4-1301(6)(c)) (Effective Apr. 1, 2004). To address the concerns and comments the laboratories, certified under these rules, have submitted to the Department during the certification process regarding the gap between the recognized industry standards of practice laboratories follow and the current laboratory requirements in the current rules. To add clarification to the existing rules in conjunction with recommendations submitted to the Department from the Defense Bar, District Attorneys, Department of Revenue, Law Enforcement Agencies, Certified Operators, Certified Instructors, and the Certified Laboratories during the stakeholder process. To address concerns received by the Department from the Defense Bar, District Attorneys, Department of Revenue and Law Enforcement Agencies regarding the statutory authority of the Rules requiring the law enforcement officers to read the expressed consent statement as written to subjects arrested for DUI offenses. To remove inconsistent record retention requirements listed in the rules and to make these requirements uniform for both laboratories and law enforcement agencies. To address concerns received by the Department from the laboratories and legal community regarding the inconsistencies in documentation presented to the courts by the labs for review. 2 To add requirements consistent with industry standards related to the collection of specimens from deceased persons involved in vehicular deaths, or persons who died as a result of a vehicular accident. To add authority and guidance to the Department when complaints are received in order to conduct any investigation processes and to take any applicable actions. Alternative Rules Considered and Why Rejected. The Department has identified the need remove outdated language and to clarify current language with respect to the breath alcohol testing process, and to modify forensic toxicology laboratory certification requirements. The rule changes establish the creation of a standardized litigation packet, intended to improve documentation associated with testing. None of these goals can be achieved by leaving the existing language in place. The Department’s options to address these identified needs are as follows: Leave the existing language unchanged. The Department has identified that the need to use the rule making process is necessary to remove the outdated language, clarify existing rules, and improve the laboratory standards. Without the rule making process, the Department is unable to change any language to the rules to address the identified needs. Therefore, the option of leaving the existing language unchanged could not be considered by the Department. Revise the existing language. The Department’s proposed rules incorporate changes to the language of the current rules that facilitate revisions consistent with the Department’s goals. Because the testing procedure specified in Part 5 of the rules was discontinued effective July 1, 2007, those obsolete rules and others referring to them should be eliminated. Another reason for the proposed rule change was to modify the standards that must be met for certification of forensic toxicology laboratories and their staff to make those standards consistent with federally-recognized standards. Other rule changes establish the creation of a standardized litigation packet, intended to improve documentation associated with testing. Finally, the proposed rule changes clarify the intent of portions of the current rules. For those reasons, the proposed revisions to the rules were the only revisions that could accomplish the goals of the Department. 3