Download BasisandPurposeAttachment2008-01067

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;
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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.
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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.
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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.
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