CHAPTER Saf-C 6300 BREATH ALCOHOL PROCEDURE USING THE INTOXILYZER 5000 INSTRUMENT
BEFORE JANUARY 1, 2017 – See Saf-C 7100 for use on or after January 1, 2017

Statutory Authority RSA 265:85, V

REVISION NOTE:

Pursuant to 2003, 319:80, II, effective 1-1-04, rules He-P 2207 entitled “Breath Alcohol Procedure Using the Intoxilyzer 5000 Instrument”, last filed by the Department of Health and Human Services under Document #6208, effective 4-1-96, were transferred to the Department of Safety. The Department of Safety subsequently filed Document #8064, effective 4-1-04, which readopted and renumbered as interim rules in Saf-C 6300 most of the rules in the former He-P 2207.

The following rules in He-P 2207 were not included within Document #8064 and are deemed by the Department of Safety to have expired on 4-1-04:

Definitions in He-P 2207.01(q) “Commissioner”; (s) “Division”, (w) “Forensic breath test supervisor II”; (ab) “Laboratory”; and (ag) “Proficiency testing program”, and

He-P 2201.18 relative to a proficiency testing program.

The rules in Document #8064 therefore replaced all prior filings for rules in the former He-P 2207. The filings of the Department of Health and Human Services or its Division of Public Health Services affecting the former He-P 2207 include the following documents:

#4744-a, effective 1-24-90

#6145, INTERIM, effective 12-21-95

#6208, effective 4-1-96

PART Saf-C 6301 SCOPE

Saf-C 6301.01 Applicability. This chapter shall apply to all breath alcohol procedures using the intoxilyzer 5000 instrument for breath tests conducted before January 1, 2017.

Source. #12064, INTERIM, eff 1-1-17, EXPIRES: 6-30-17; ss by #12216, eff 6-30-17

PART Saf-C 6302 DEFINITIONS

Saf-C 6302.01 “Accuracy” means the closeness of the test result to the true or expected result.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10; renumbered by #12064 (formerly Saf-C 6301.01)

Saf-C 6302.02 “Acetone” means dimethylketone, a volatile chemical which can be found in the blood, urine or breath of a person under certain metabolic conditions such as diabetes.

Saf-C 6302.03 “Alcohol” means ethanol, ethyl alcohol or “intoxicating liquors” as defined in RSA 21:33.

Saf-C 6302.04 “Alcohol concentration” means grams of alcohol per 210 liters of breath (g/210L) as defined in RSA 259:3-b.

Saf-C 6302.05 “Alveolar air” means that portion of a breath sample submitted which is nearest in exchange between the lungs and the blood, the last portion of a maximal expiration.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.04); renumbered by #12064 (formerly Saf-C 6301.05)

Saf-C 6302.06 “Approval” means a statement of authorization signed by the commissioner.

Saf-C 6302.07 “Approved course of training” means a course of instruction approved by the commissioner for proper operation of the breath test instrument.

Saf-C 6302.08 “Approved instrument” means the Intoxilyzer 5000.

Saf-C 6302.09 “Breath test operator” means an individual who has completed the eligibility requirements in Saf-C 6303.02.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.11); renumbered by #12064 (formerly Saf-C 6301.09)

Saf-C 6302.10 “Captured sample” means that sample of breath introduced into an approved instrument and adsorbed onto a silica gel tube.

Saf-C 6302.11 “Captured sample bag” means a pre-numbered tamper resistant envelope in which the subject’s captured samples are placed after completion of the breath test.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.13); renumbered by #12064 (formerly Saf-C 6301.11)

Saf-C 6302.12 “Certification of breath test operator” means a 12 month period in which a law enforcement officer, who meets requirements of Saf-C 6303.02, is authorized to conduct an analysis of a person’s breath for the purpose of determining its alcohol concentration.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.14); renumbered by #12064 (formerly Saf-C 6301.12)

Saf-C 6301.13 “Certification of equipment” means a 6 month interval in which the accuracy and precision of a breath test instrument have been verified by the forensic breath testing supervisor.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.15); renumbered by #12064 (formerly Saf-C 6301.13)

Saf-C 6302.14 “Commissioner” means the commissioner of the department of safety or his or her designee.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.17); renumbered by #12064 (formerly Saf-C 6301.14)

Saf-C 6302.15 “Control” means a sample or solution of a known concentration, similar to the sample which is analyzed, for quality control purposes and not used for quality control purposes and not used in the calibration of a method.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.18); renumbered by #12064 (formerly Saf-C 6301.15)

Saf-C 6302.16 “External standard reference” means a simulator test performed on the approved instrument, using a known alcohol/water solution, to verify the accuracy of the approved instrument.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.20); renumbered by #12064 (formerly Saf-C 6301.16)

Saf-C 6302.17 “Field” means a police department or law enforcement agency located within New Hampshire.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.21); renumbered by #12064 (formerly Saf-C 6301.17)

Saf-C 6302.18 “Forensic breath test supervisor” means an individual who is authorized by the commissioner and has met the requirements of Saf-C 6303.01.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.22); renumbered by #12064 (formerly Saf-C 6301.18)

Saf-C 6302.19 “Gas chromatography” means a method of analysis in which a sample is injected into a stream of carrier gas moving through a column containing a stationary phase composed of a liquid or particulate solid. The sample is then separated into its component compounds according to their affinity for the stationary phase.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.23); renumbered by #12064 (formerly Saf-C 6301.19)

Saf-C 6302.20 “Headspace vapor” means a volume of gaseous sample above a liquid in a closed container.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.24); renumbered by #12064 (formerly Saf-C 6301.20)

Saf-C 6301.21 “Internal standard” means a substance which is added to the sample vial in a known concentration, which is chemically similar to the analyte being determined and against which the analyte can be measured.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.25); renumbered by #12064 (formerly Saf-C 6301.21)

Saf-C 6302.22 “Internal standard reference” means an automatic check conducted by the approved instrument to determine the readiness of that instrument to analyze a sample of breath.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.26); renumbered by #12064 (formerly Saf-C 6301.22)

Saf-C 6302.23 “Laboratory” means the forensic science laboratory or a laboratory accredited pursuant to RSA 265-A:5,V.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.27); renumbered by #12064 (formerly Saf-C 6301.23)

Saf-C 6302.24 “Modification” means an alteration to the approved instrument affecting the accuracy or precision of the breath test.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.29); renumbered by #12064 (formerly Saf-C 6301.24)

Saf-C 6302.25 “Precision” means a measure of the agreement between replicate tests.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.30); renumbered by #12064 (formerly Saf-C 6301.25)

Saf-C 6302.26 “Preventive maintenance check” means a scheduled or routine maintenance performed on the approved instrument to ensure its continued accuracy and precision.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.31); renumbered by #12064 (formerly Saf-C 6301.26)

Saf-C 6302.27 “Recertifying supervisor” means a breath test operator, authorized by the commissioner, who has met the eligibility requirements in Saf-C 6303.02.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.33); renumbered by #12064 (formerly Saf-C 6301.27)

Saf-C 6302.28 “Repairs” means an adjustment or replacement of parts or components to return the equipment to proper operating condition.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.34); renumbered by #12064 (formerly Saf-C 6301.28)

Saf-C 6302.29 “Simulator” means a device used as an external standard reference which is designed to produce a similar result as that obtained from an actual breath sample, when operated under predefined conditions.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.35); renumbered by #12064 (formerly Saf-C 6301.29)

Saf-C 6302.30 “Standard” means a silica gel tube containing a known concentration of analyte.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.36); renumbered by #12064 (from Saf-C 6301.30)

Saf-C 6302.31 “Subject sample” means a sample of alveolar air, given by a person being tested to determine a breath alcohol concentration.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6301.37); renumbered by #12064 (formerly Saf-C 6301.31)

PART Saf-C 6303 EQUIPMENT

Saf-C 6303.01 Approval of Equipment.

(a) The commissioner shall approve the breath test instrument and simulator by make and model in accordance with (b) below. Pursuant to RSA 265-A:12, breath tests conducted on an approved instrument to determine the alcohol concentration of one’s breath shall be offered for evidentiary purposes when performed by certified personnel in accordance with procedures established in Saf-C 6302.02.

(b) The following criteria shall be used by the commissioner for approval of the breath test instrument:

(1) Breath samples collected for analysis shall be alveolar in composition;

(2) The instrument shall be capable of analyzing a series of headspace vapor samples from a simulator at known concentrations;

(3) The instrument shall be capable of performing an internal standard reference check;

(4) The instrument shall be capable of capturing the subject’s breath sample for delayed analysis;

(5) The instrument shall be identified on the “Conforming Products List” by the National Highway Traffic Safety Administration as an “Evidential Breath Measurement Device.”

(c) Any approved instrument submitted to the manufacturer for modification or repair shall be returned to the forensic science laboratory upon completion of servicing and shall pass a preventive maintenance check in accordance with Saf-C 6302.04 prior to returning the approved instrument to the field.

Saf-C 6303.02 Sample Collection.

(a) All breath samples shall be alveolar air and shall be collected at the direction of the breath test operator.

(b) Immediately prior to testing, the subject shall be observed by a breath test operator for a period of 20 minutes to ensure the integrity of the sample. Prior to the observation period, the breath test operator shall inform the subject not to place any material in his/her mouth. Should vomiting, regurgitation or belching occur or any external material enter the mouth of the person to be examined, an additional 20 minute wait period shall occur before testing. Should the breath test operator determine that the subject is not complying with the requirements of this paragraph or (d) below at any point during the testing process, or the subject decides not to complete the sampling requirements in (d), the breath test operator shall stop the test and record the test as a refusal pursuant RSA 265-A:8.

(c) The breath test operator shall record and shall print out on the test record the identification of the subject, the name of the breath test operator, and the date and time of the sample collection. Identification of the approved instrument used to conduct the test shall include the make, model, serial number and field location.

(d) A minimum of 2 subject samples shall be collected for each complete breath test. If the alcohol concentration readings of the first 2 samples do not agree within +/- 0.02 g/210L, a third subject sample shall be collected.

(e) A reported value shall be printed on the test record upon completion of the following:

(1) A 20 minute observation period before the initial sample is taken;

(2) The identification of the subject, breath test operator and instrument;

(3) An ambient or room air check performed by the approved instrument;

(4) An internal standard reference check performed by the approved instrument;

(5) The satisfactory collection of a minimum of 2 subject samples which agree with +/- 0.02 g/210L;

(6) The collection of a captured sample for each satisfactory subject sample collected in accordance with (a), (b) and (d);

(7) An external standard reference check performed by the approved instrument in accordance with (h) below; and

(8) The printout of test results and required information.

(f) During the testing process there shall be 2 reference checks on the approved instrument.

(g) The approved instrument shall be programmed to perform an internal standard reference check at separate set points. If any one of the set points gives a reading greater than +/- 5% of the assigned value, the approved instrument shall be so designed that it shall not allow a subject sample to be taken.

(h) An external standard reference check shall be conducted via the external reference port on the approved instrument. The external standard reference check shall consist of a known alcohol/water solution held at a constant temperature of 34°C +/- 0.2°C, whose vapor shall give an alcohol concentration reading on the approved instrument of no less than 0.09 g/210L nor greater than 0.10 g/210L. The approved instrument shall be so designed that a test cannot be completed if the external standard reference result is not within the acceptable range.

Saf-C 6303.03 Reporting of Findings.

(a) All completed test results shall be printed on the breath test record and shall be reported to the second decimal place without rounding.

(b) A reported value shall be printed when a breath test is completed in accordance with Saf-C 6302.02(e) above;

(d) Breath test results shall be expressed as grams of alcohol per 210L.

Saf-C 6303.04 Preventive Maintenance-Equipment.

(a) The forensic breath testing supervisor shall conduct a preventive maintenance on each approved instrument 6 months after the initial check and at 6 month intervals.

(b) A preventive maintenance check pursuant to RSA 265-A:12,II shall include:

(1) Analysis of a series of simulated breath tests at known alcohol concentrations, to verify the accuracy and precision of the approved instrument which shall meet the following criteria:

a. For known alcohol concentrations less than 0.10g/210L:

1. The accuracy of the readings shall deviate no more than +/- 0.005 g/210L from the known alcohol concentration; and

2. The total precision range of the readings shall not exceed +/- 0.005 g/210L; and

b. For known alcohol concentrations equal to or greater than 0.10 g/210L:

1. The accuracy of the readings shall be within +/- 5% of the known alcohol concentration; and

2. The total precision range of the readings shall not exceed 5% of the target value;

(2) Verification of the approved instrument’s ability to detect and correct for acetone;

(3) Collection of captured samples at known alcohol concentrations to verify the accuracy of the captured sample method which shall meet the following criteria:

a. For infrared values less than 0.10 g/210L, results shall agree within 0.01 g/210L of the infrared value; and

b. For infrared values equal to or greater than 0.10 g/210L, results shall agree within +/- 10% of the infrared value;

(4) Performance of routine maintenance on the approved instrument and simulator as necessary to maintain proper analytical functions; and

(5) Documentation of maintenance performed on each approved instrument and simulator at the time of service.

(c) The forensic breath testing supervisor shall certify the accuracy and precision of the approved instrument on the preventive maintenance check form, pursuant to RSA 265-A:12, II, once the requirements of (b)(1) – (5) are completed.

(d) The preventive maintenance check form shall specify the following:

(1) The approved instrument and simulator by make, model and serial number;

(2) The field location of the equipment;

(3) The date of certification and expiration; and

(4) That the forensic breath testing supervisor has found the approved instrument and simulator to be in proper working order and that the equipment meets the preventive maintenance requirements as outlined in (b) above and RSA 265-A:12, II.

(e) Repairs performed on the approved instrument shall be documented and kept on file at the forensic science laboratory. The approved instrument shall not be required to pass a preventive maintenance check if the repair does not affect the accuracy or precision of the breath test.

PART Saf-C 6304 QUALIFICATIONS OF INDIVIDUALS CONDUCTING TESTS

Saf-C 6304.01 Forensic Breath Testing Supervisor.

(a) Pursuant to RSA 265-A:5, the commissioner shall designate a forensic breath testing supervisor as competent and qualified to conduct such breath tests.

(b) To be considered for designations as a forensic breath test supervisor, an applicant shall meet the following requirements:

(1) A forensic breath testing supervisor shall meet the minimum qualifications under division of personnel position classification requirements as a laboratory scientist, a criminalist or a toxicologist; and

(2) Complete the manufacturer’s equipment maintenance course for the approved instrument.

(1) Perform preventive maintenance on the approved instrument;

(2) Certify the accuracy and precision of the approved instrument as required in Saf-C 6302.04;

(3) Train and recertify breath test operators and recertifying supervisors; and

(4) Evaluate new breath test instruments, as necessary, following the criteria for approval in accordance with Saf-C 6302.01(b).

Saf-C 6304.02 Breath Test Instrument Operator/Recertifying Supervisor.

(a) Personnel certified by the commissioner, pursuant to RSA 265-A:5, V, shall be designated as a breath test instrument operator or as a recertifying supervisor.

(b) Criteria for breath test operators and recertifying supervisors shall be as follows:

(1) To be eligible for training as a breath test operator of the approved instrument, for purposes of RSA 265-A:4, the applicant shall be currently employed as a law enforcement official within the state of New Hampshire; and

(2) To be eligible as a recertifying supervisor:

a. The applicant shall meet the eligibility requirements in (1) above;

b. The applicant shall have taken and passed an approved course of training as outlined in (h) below;

c. The applicant shall be currently certified as a breath test instrument operator;

d. The applicant shall have experience in conducting actual breath tests by:

1. Maintaining the certification in accordance with (k) below for a period of not less than one year; and

2. Conducting a minimum of 10 subject tests in accordance with Saf-C 6302.02 during one calendar year.

(c) A breath test operator who has met the eligibility requirements of (b) above and has passed the approved course of training as outlined in (h) below shall be approved by the commissioner to conduct breath tests pursuant to RSA 265-A:5.

(d) A recertifying supervisor who has met the eligibility requirements of (b)(2) above shall perform the following duties:

(1) Conduct breath tests pursuant to RSA 265-A:5;

(2) Recertify breath test operators within their own agency in accordance with (j) below; and

(3) Assist the forensic breath testing supervisor in the training of breath test operators.

(e) Recertifying supervisors shall not recertify equipment.

(f) Applicants shall meet the eligibility requirements in (b) above and have completed a course of training provided by the division covering the topics outlined in (h) below. A certificate shall be issued to the breath test operator by the agency sponsoring the course of training. This certificate of training shall be submitted to the commissioner when applying for certification as a breath test operator.

(g) A comprehensive practical and written examination shall be developed and administered by the forensic breath testing supervisor at the completion of the course.

(h) The exam required in accordance with (g) shall cover the following subject matter:

(1) The value and purpose of breath alcohol testing;

(2) The physiological action of alcohol on the human body;

(3) The pharmacology and toxicology of alcohol;

(4) The methods of alcohol analysis and theory of breath testing;

(5) The instruments and procedures for breath testing;

(6) Laboratory practice and demonstration of competency by:

a. Using proper technique in collecting and capturing a sample;

b. Obtaining accurate results; and

c. Following established operating and reporting procedures; and

(7) Legal procedures and decisions affecting breath testing.

(i) A breath test operator or recertifying supervisor certification shall be valid for a period of 12 months from date of issue unless terminated or revoked.

(j) A breath test operator shall renew his/her certification prior to its expiration through:

(1) Demonstration of competence in performing an analysis under the supervision of a forensic breath testing supervisor or recertifying supervisor by:

a. Using proper technique in collecting and capturing a sample;

b. Obtaining accurate results; and

c. Following established operating and reporting procedures; and

(2) Completion of a review course provided by the division which shall include:

a. Instrument operating and sampling technique;

b. Analysis and reporting procedures; and

c. Procedural changes and legal decisions affecting breath testing.

(k) A certified recertifying supervisor shall renew his/her certification prior to its expiration through:

(1) Demonstration of competence in performing an analysis under the supervision of a forensic breath testing supervisor by:

a. Using proper technique in collecting a sample;

b. Obtaining accurate results; and

c. Following established operating and reporting procedures; and

(2) Completion of a review course provided by the division which shall include:

a. Instrument operating and sampling technique;

b. Analysis and reporting procedures; and

c. Procedural changes and legal decisions affecting breath testing.

(l) Reinstatement of breath test operators and recertifying supervisors shall be as follows:

(1) A breath test operator's certification shall be reinstated by the forensic breath testing supervisor or recertifying supervisor if he or she meets the requirements of (j) above within one year from the date of expiration; and

(2) A recertifying supervisor's certification shall be reinstated by the forensic breath testing supervisor if he or she meets the requirements of (k) above within one year from the date of expiration.

(m) A breath test operator's or recertifying supervisor's certification shall remain valid unless expired or revoked after notice and opportunity for a hearing for the following reasons:

(1) Failure to follow the operating procedure for the approved instrument in accordance with Saf-C 6302.02(e);

(2) Failure to follow the procedure for reporting and keeping of records;

(3) Failure to renew certification within a 12 month period prior to expiration;

(4) Termination of employment as a law enforcement official at any time during the 12 month certification period, except for those individuals transferring from one law enforcement agency to another within the State of New Hampshire; and

(5) Failure to become reinstated after a period of one year from expiration of their last certification.

(n) To become certified again, the former breath test operator or recertifying supervisor shall attend and complete an approved course of training as described in (h) above.

(o) A breath test operator or recertifying supervisor's certification shall be revoked upon recommendation by the forensic breath testing supervisor in accordance with (m)(1) and (2) above. Notification of this revocation shall be forwarded to the breath test operator or recertifying supervisor by the commissioner by certified mail.

PART Saf-C 6305 BREATH ALCOHOL SAMPLES

Saf-C 6305.01 Preservation of Breath Alcohol Sample.

(a) When a subject submits to a breath test on an approved instrument to determine his/her alcohol concentration, pursuant to RSA 265-A:4 a captured sample of their breath shall be collected by the breath test operator.

(b) The breath test operator shall identify each captured sample of breath collected in accordance with Saf-C 6302.02 by the following:

(1) The lot number of the tube;

(2) The name of the individual tested;

(3) The date of collection; and

(4) The number in the sequence of samples collected.

(c) The captured samples of breath shall be placed in a captured sample bag along with a copy of the subject's test record.

(d) The breath test operator shall record on the outside of the captured sample bag:

(1) The subject's name; and

(2) The date the captured samples were collected.

(e) Each subject who submits to a breath test and successfully completes the requirements of Saf-C 6302.02(e) shall be given the captured samples of his or her breath at the completion of the test.

PART Saf-C 6306 INDEPENDENT LABORATORY ACCREDITATION

Saf-C 6306.01 Laboratory Accreditation, Independent Analysis. Any laboratory that performs an analysis of a captured sample to determine its alcohol concentration pursuant to RSA 265-A:7, shall be accredited by a nationally recognized accrediting body pursuant to RSA 265-A:5, V.

Saf-C 6306.02 Method of Analysis of Captured Samples-Independent Laboratory.

(a) An independent laboratory accredited pursuant to RSA 265-A:5, V shall employ the following in its analytical method:

(1) Gas chromatography;

(2) Internal standard;

(3) Captured sample standards prepared with the same type and amount of trapping material as utilized to collect a captured sample of breath;

(4) Captured sample standards prepared on the same series of approved instrument as used in the original collecting procedure;

(5) Analysis of the captured sample which corresponds to the reported value as determined in Saf-C 6302.03; and

(6) Analysis of the captured sample identified in (5) above in duplicate.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6305.04); renumbered by #12064 (formerly Saf-C 6305.02)

Saf-C 6306.03 Reporting of Findings.

(a) The reported value of a captured sample analyzed in accordance with Saf-C 6305.02 shall be determined by:

(1) Taking the lower of the 2 duplicate results; and

(2) Truncating the result determined in (1) to the second decimal place.

(b) The reported value determined in (a) shall be expressed as grams of alcohol per 210 liters of breath (g/210L), pursuant to RSA 259:3-b.

(c) The deviation between the reported value of the approved instrument and the independent laboratory’s reported value shall be derived by subtracting the independent laboratory’s reported value determined in (a) from the reported value of the approved instrument.

(d) The deviation determined in (c) shall be expressed as grams of alcohol per 210 liters of breath (g/210L).

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6305.07); renumbered by #12064 (formerly Saf-C 6305.03)

Saf-C 6306.04 Captured Sample Analysis Report.

(a) The report of the analysis of a captured sample performed by an independent laboratory pursuant to RSA 265-A:7 shall include:

(1) The serial number of the captured sample bag;

(2) The serial number of the approved instrument from which the breath sample was captured;

(3) The subject’s reported value identified on the printout from the approved instrument in accordance with Saf-C 6302.04;

(4) The results of the captured sample analyzed in duplicate in accordance with Saf-C 6305.02(a)(5) and (6);

(5) The independent laboratory’s reported value as determined in accordance with Saf-C 6305.03(a); and

(6) The name of the person conducting the analysis.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6305.08); renumbered by #12064 (formerly Saf-C 6305.04)

Saf-C 6306.05 Interpretation of Results.

(a) Captured samples of breath collected in accordance with Saf-C 6302.02(e) and Saf-C 6304.01 and analyzed by an independent laboratory in accordance with Saf-C 6305.02-04 shall be used to corroborate the reported value obtained by the approved instrument.

(b) The result of the breath test shall be considered to be corroborated when the reported value of the approved instrument is within the deviation limits for the alcohol concentration levels outlined below:

(1) For alcohol concentrations less than 0.05 g/210L and the deviation does not exceed 0.01 g/210L;

(2) For alcohol concentrations equal to 0.05 g/210L but less than 0.10 g/210L and the deviation does not exceed 0.02 g/210L;

(3) For alcohol concentrations equal to 0.10 g/210L but less than 0.15 g/210L and the deviation does not exceed 0.03 g/210L;

(4) For alcohol concentrations equal to 0.15 g/210L but less than 0.20 g/210L and the deviation does not exceed 0.04 g/210L; and

(5) For alcohol concentrations equal to or greater than 0.20 g/210L and the deviation does not exceed 0.05 g/210L.

(c) When the result of the breath test is not corroborated in (b) above, further evaluation shall be required in order to determine the weight to be given to the reported value of either the approved instrument or the independent laboratory.

(d) Pursuant to RSA 265-A:12, the evaluation of results shall include a review of the following materials provided by:

(1) The arresting officer or breath test operator to include:

a. A copy of the preventive maintenance check form completed in accordance with Saf-C 6302.04 and dated prior to the subject’s test;

b. A copy of the documentation of any repairs performed on the approved instrument within the certification period encompassing the subject’s test; and

c. A copy of the breath test printout showing the completed test, in accordance with Saf-C 6302.03; and

(2) The independent laboratory to include:

a. Proof of the independent laboratory’s accreditation as required by RSA 265-A:5, V(e) for the period encompassing the date of analysis;

b. A copy of the captured sample analysis report;

c. A copy of the run log for the day the subject’s captured sample was analyzed;

d. Copies of the gas chromatograph instrument printouts of the subject’s captured sample results which correspond to the reported value obtained by the approved instrument;

e. Copies of all the gas chromatograph instrument printouts of the blanks, standards and controls analyzed on the day the captured sample was analyzed; and

f. Documentation of any repairs or preventive maintenance performed on the gas chromatograph instrument within a 2 month period before and after the analysis of the subject’s captured sample.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6305.09); renumbered by #12064 (formerly Saf-C 6305.05)

Saf-C 6306.06 Statistics.

(a) Laboratories accredited to perform independent analyses of captured samples of breath shall submit a monthly summary of their results to the forensic science laboratory. The summary shall be submitted no later than 10 working days after the end of each month.

(b) The summary shall consist of:

(1) The approved instrument serial number;

(2) The date of the breath test and the reported value; and

(3) The independent laboratory’s reported value determined in accordance with Saf-C 6305.03.

(1) Written on 8.5 inch by 11 inch paper;

(2) Via e-mail with an attached Microsoft Excel, Word or ASCII file.

(d) The summary data shall be used by the forensic science laboratory to monitor the performance of the approved instruments to ensure the accuracy of the testing program.

Source. #8064, INTERIM, eff 4-1-04, EXPIRES: 9-28-04 (See Revision Note at Chapter Heading for Saf-C 6300); ss by #8114, eff 7-14-04; ss by #9683, eff 3-23-10 (from Saf-C 6305.10); renumbered by #12064 (formerly Saf-C 6305.06)

APPENDIX

Rule	Specific State or Federal Statutes or Regulations which the Rule Implements

Saf-C 6301	RSA 541-A:7
Saf-C 6302	RSA 541-A:7
Saf-C 6303.01(a)	RSA 265-A:5, V & RSA 265-A:12, IV
Saf-C 6303.01(b) to 6303.03	RSA 265:-A:5, V
Saf-C 6303.04(a)–(d)	RSA 265-A:V, V(f) & RSA 265-A:12, II
Saf-C 6303.04(e)	RSA 265-A:5, V(f)
Saf-C 6304	RSA 265:85, V(b)
Saf-C 6305	RSA 265:85, V(c) & RSA 265:86, II
Saf-C 6306.01	RSA 265:85, V(e)
Saf-C 6306.02-6306.04	RSA 265-A:5, V(a) & (e)
Saf-C 6306.05(a)-(c)	RSA 265-A:5, V(a) &(e)
Saf-C 6306.05(d)(1)a.	RSA 265-A:5, V(d) & RSA 265-A:12, II
Saf-C 6306.05(d)(1)b.–6306.05(d)(2)	RSA 265-A:5, V(d)
Saf-C 6306.06	RSA 265-A:5, V(e) &(f)