Breath Tests

The proper procedures for breath testing are clearly laid out in the Pa. Code. You need an attorney who can cross examine the police officer to see that these procedures were followed. Beyond just following proper procedures for observance and calibration, there are other problems with breathalyzers. For example, they can be disrupted by mouth alcohol, and the calculations they do assume every person has the same body weight, metabolism, genetic makeup, medical history and diseases. These inadequacies can be used at trial.  

 

§ 77.24. Breath test procedures.

 (a)  Observation. The person to be tested with breath test equipment shall be kept under observation by a police officer or certified breath test operator for at least 20 consecutive minutes immediately prior to administration of the first alcohol breath test given to the person, during which time the person may not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or smoked. Custody of the person may be transferred to another officer or certified breath test operator during the 20 consecutive minutes or longer period as long as the person to be tested is under observation for at least 20 consecutive minutes prior to initial administration of the alcohol breath test.

 (b)  Procedures. Alcohol breath tests shall be conducted by a certified breath test operator. Accuracy inspection tests and calibrations conducted using breath test equipment shall be performed by a certified breath test operator, the manufacturer or its authorized representative or a person who has received comparable training or instruction. Alcohol breath tests, accuracy inspection tests and calibrations conducted using breath test equipment shall be performed in accordance with accepted standard procedures for operation specified by the manufacturer of the equipment or comparable procedures. The procedures for alcohol breath testing shall include, at a minimum:

   (1)  Two consecutive actual breath tests, without a required waiting period between the two tests.

   (2)  One simulator test using a simulator solution designed to give a reading of .10%, to be conducted immediately after the second actual alcohol breath test has been completed. The lower of the two actual breath test results will be the result used for prosecution. The test results will be disregarded, and the breath test device will be removed from service under §  77.25(b)(4) (relating to accuracy inspection tests for Type A equipment) if one of the following occurs:

     (i)   If the difference between the results of the two actual alcohol breath tests is .02 or more, for machines read to the second decimal place, or .020 or more for machines read to the third decimal place.

     (ii)   If the simulator test yields a result less than .09% or greater than .10% when the breath test device is read to the second decimal place, or if the simulator test yields a result less than .090% or greater than .109% when the breath test device can be read to the third decimal place.

 (c)  Procedures for adjustment. Breath test equipment which fails the testing under §  77.25(b) or subsection (b) shall be placed out of service and shall be serviced, repaired and adjusted, as necessary, by the manufacturer or its authorized representative or a person who has received comparable training or instruction prior to being placed back into service. In addition, the breath test device shall be tested under subsection (b) prior to being placed back into service.

 (d)  Simulator solution certification. The manufacturer of simulator solution shall certify to the test user that its simulator solution is of the proper concentration to produce the intended results when used for accuracy inspection tests or for calibrating breath test devices. This certification shall be based on gas chromatographic analysis by a laboratory independent of the manufacturer.

 (e)  Ampoule certification. The manufacturer of ampoules utilized in Type A breath testing devices shall certify to the user that its ampoules will produce the intended results when used for actual breath tests, accuracy inspection tests or for calibrating breath test devices. The certification shall be based on laboratory testing conducted by a laboratory independent of the manufacturer. The laboratory testing shall employ generally accepted scientific methods sufficient to insure that the ampoules conform to manufacturer specification.

 

Call or email today for a free consultation.

 

M.P.Kelly Law

216 North River Street

Courthouse Square Towers

Suite 570

Wilkes-Barre PA, 18702

Phone: (570) 417-5561

Fax: (570) 822-2164

Email: mike@mikepkelly.com

Print Print | Sitemap
© Michael Kelly