Chapter 92-3 IMPLIED CONSENT
| (1) |
This chapter applies to chemical analysis of a person's blood, breath or urine
for the purpose of determining whether such person is under the influence of
alcohol or drugs where such tests are required or authorized under the laws of
this state. It does not apply to analysis of breath, blood or other bodily
substances for other purposes, including, but not limited to, those:
| (a) |
Performed in conjunction with a
postmortem examination; |
| (b) |
Conducted by personnel employed by the Division of Forensic Sciences or by
personnel employed by an agency of the United States; |
| (c) |
Performed pursuant to a court
order; |
| (d) |
Performed as a condition
of probation, parole or pretrial release; |
| (e) |
Performed for the purpose of determining
paternity; |
| (f) |
For initial breath
alcohol screening (except where explicitly addressed); |
| (g) |
For the purpose of preliminary testing
for alcohol or drugs by law enforcement before submission of samples to a
laboratory for confirmatory testing; |
| (i) |
For the purpose of medical diagnosis or
treatment. |
|
| (2) |
Requests
concerning the rules or laws administered by the Georgia Bureau of
Investigation, Division of Forensic Sciences relative to the methods approved
for breath, blood or urine analysis, pursuant to this Chapter, shall be made in
writing to the Director, Division of Forensic Sciences of the Georgia Bureau of
Investigation. |
| (1) |
Pursuant to
this chapter applicants for a permit to perform chemical analysis of a person's
blood for alcohol content and report the results of such analysis as delineated
in O.C.G.A. § 40-6-392 shall meet the following
requirements:
| (a) |
Be employed by an entity
that is accredited in the area of forensic blood alcohol analysis by a
nationally recognized accrediting body; |
| (b) |
Have never been convicted of a crime
involving moral turpitude; |
| (c) |
Have
completed a baccalaureate or advanced degree in chemistry, toxicology,
medicine, pharmacology, or forensic science, including a minimum of 40 semester
hours of chemistry related coursework; |
| (d) |
Have completed a documented training
program in the area of blood alcohol analysis that includes the following
elements:
| 1. |
Theory of alcohol pharmacology
and pharmacokinetics; |
| 2. |
Principles
and theory of analytical techniques for blood alcohol analysis, e.g., head
space gas chromatography and/or enzymatic methods; |
| 3. |
Analysis of samples with known blood
alcohol content using gas chromatography, enzymatic methods, or other generally
accepted techniques; |
| 4. |
Successful
completion of proficiency test samples from the National Highway Transportation
Safety Administration (NHTSA) and/or proficiency test samples from a test
provider approved by the entity's accrediting authority described in
92-3.02(1)(a). |
|
| (e) |
Be an
active participant in an ongoing external proficiency testing
program. |
|
| (2) |
Applicants
for a permit to perform chemical analysis of a person's breath pursuant to this
Chapter shall meet the following requirements:
| (a) |
be a citizen of the United
States; |
| (b) |
be a resident of the
State of Georgia or be employed within the State of Georgia; |
| (c) |
have never been convicted of a crime
involving moral turpitude; |
| (d) |
be
over twenty years of age; |
| (e) |
certified satisfactory completion of a course in breath analysis conducted
under the auspices of the Division of Forensic Sciences. |
|
| (3) |
All peace officers qualified to make
arrests on the highways or streets of this State shall be deemed, and are
hereby declared, qualified to administer the screening test for alcohol in the
breath. Screening tests are not intended to be a quantitative measure of the
specific amount of alcohol in a person's breath, but a presumptive test for the
presence or absence of alcohol. A list of approved breath alcohol screening
devices will be maintained by the Division of Forensic Sciences. |
| (4) |
Pursuant to this chapter, applicants for
a permit to perform chemical analysis of a person's blood or urine for drugs
and report the results of such analysis as delineated in O.C.G.A. § 40-6-392 shall meet the following
requirements:
| (a) |
Be employed by an entity
that is accredited in the area of toxicology analysis by a nationally
recognized accrediting body; |
| (b) |
Have never been convicted of a crime involving moral turpitude; |
| (c) |
Have completed a baccalaureate or
advanced degree in chemistry, toxicology, medicine, pharmacology, or forensic
science, including a minimum of 40 semester hours of chemistry related
coursework; |
| (d) |
Have completed a
training program in the area of drug analysis from biological samples that
includes the following elements:
| 1. |
Theory of
drug pharmacology and pharmacokinetics; |
| 2. |
Principles and theory of analytical
techniques for drug analysis, including presumptive (e.g., immunoassay) and
confirmatory techniques (e.g., gas chromatography/mass spectrometry, liquid
chromatography/mass spectrometry/mass spectrometry); |
| 3. |
Analysis of samples with known drug
content using presumptive and confirmatory methods; |
| 4. |
Successful completion of proficiency test
samples from a test provider approved by the accrediting authority described in
92-3.02(4)(a). |
|
| (e) |
Be an
active participant in an ongoing external proficiency testing
program. |
|
| (5) |
Applicants
to perform, under supervision, chemical testing of a person's blood or urine
for alcohol shall meet the following requirements:
| (a) |
Be under the direct supervision of a
person who possesses a valid permit to perform chemical tests as described in
92-3.02(1) and who is responsible for reviewing and reporting the results of
all chemical tests performed by the applicant; |
| (b) |
Be a duly licensed registered nurse,
certified medical technologist, or trained laboratory technician; |
| (c) |
Have completed a training program in the
area of blood alcohol analysis that includes the following elements:
| 1. |
Principles and theory of analytical
techniques for blood alcohol analysis, e.g., head space gas chromatography
and/or enzymatic methods; |
| 2. |
Analysis of samples with known blood alcohol content using gas chromatography,
enzymatic methods, or other generally accepted techniques; |
| 3. |
Successful completion of proficiency test
samples provided by the National Highway Transportation Safety Administration
(NHTSA) and/or proficiency test samples from a test provider approved by the
entity's accrediting authority described in 92-3.02(1)(a). |
|
| (d) |
Be an active participant in an ongoing
external proficiency testing program. |
|
| (6) |
Applicants to perform, under supervision,
chemical testing of a person's blood or urine for drugs shall meet the
following requirements:
| (a) |
Be under the
direct supervision of a person who possesses a valid permit to perform chemical
tests as described in 92-3.02(4) and who is responsible for reviewing and
reporting the results of all chemical tests performed by the
applicant; |
| (b) |
Be a duly licensed
registered nurse, certified medical technologist, or trained laboratory
technician; |
| (c) |
Have completed a
training program in the area of drug analysis from biological samples that
includes the following elements:
| 1. |
Principles
and theory of analytical techniques for drug analysis, including presumptive
(e.g., immunoassay) and confirmatory techniques (e.g., gas chromatography/mass
spectrometry, liquid chromatography/mass spectrometry/mass
spectrometry); |
| 2. |
Analysis of
samples with known drug content using presumptive and confirmatory
methods; |
| 3. |
Successful completion
of proficiency test samples provided by a recognized test provider approved by
the entity's accrediting authority described in 92-3.02(4)(a). |
|
| (d) |
Be an active participant in
ongoing external proficiency testing program. |
|
| (1) |
Applications for permits to perform chemical analyses of a person's blood or
breath pursuant to this Chapter shall be on a form prescribed and approved by
the Georgia Bureau of Investigation and shall be submitted to the Division of
Forensic Sciences, Implied Consent Section. |
| (2) |
Each applicant shall provide as a minimum
the following data:
| (a) |
the name of the
individual seeking the permit; |
| (b) |
the email address, telephone number, fax number and mailing address of the
individual seeking the permit; |
| (c) |
the name and mailing address of the applicant's employer, or if self-employed,
the name and mailing address under and by which the applicant transacts
business; |
| (d) |
place and date of the
applicant's birth; |
| (e) |
the resident
address of the applicant; |
| (f) |
responses to all questions or requests for information in the
application; |
| (g) |
date of the
application. |
|
| (3) |
Where
the application is for a permit to perform chemical analyses of a person's
blood or urine, the applicant shall provide the documentation necessary to
demonstrate that the applicant has met all applicable qualifications. |
| (4) |
Where the application is for a permit to
perform chemical analyses of a person's blood or urine the applicant shall
identify the specific methods and techniques to be employed in the performance
of the analyses. |
| (1) |
Permits to
perform chemical analyses of a person's blood, urine, or breath pursuant to
this Chapter will be issued by the Georgia Bureau of Investigation, Division of
Forensic Sciences, Implied Consent Section. |
| (2) |
The Georgia Bureau of Investigation,
Division of Forensic Sciences shall withhold the issuance of a permit where the
application reveals information that the applicant has not or cannot qualify
pursuant to Rule
92-3-.02. |
| (3) |
Separate and distinct permits shall be
issued for:
| (a) |
analysis and reporting of
blood alcohol levels |
| (b) |
testing
and reporting breath alcohol levels; |
| (c) |
analysis and reporting of drugs in blood
and/or urine |
| (d) |
analysis of blood
alcohol under supervision |
| (e) |
analysis of drugs in blood and/or urine under supervision. |
|
| (4) |
All permits are subject to revocation as
provided by law and Rule
92-3-.08. |
| (5) |
Applications for all permits shall be
filed with the Division of Forensic Sciences Implied Consent Section. Permits
shall be valid for not more than four years from the date of issuance. Proof of
successful completion of annual proficiency tests shall be required to maintain
all permits for testing blood or urine for alcohol or drugs. |
| (6) |
Permit renewals to perform chemical
analyses on a person's breath shall not be approved unless one refresher course
in breath alcohol analysis conducted under the auspices of the Division of
Forensic Sciences has been satisfactorily completed. Individuals possessing
permits that are more than one year past the expiration date will not be
allowed to renew their permits by attending a refresher course unless
specifically authorized by the Director of the Division of Forensic Sciences or
his or her designee. Additional refresher courses may be required at the
discretion of the Director of the Division of Forensic Sciences. |
| (7) |
Existing permit holders may obtain a
permit to operate instruments approved pursuant to this rule by the Division of
Forensic Sciences for the chemical analysis of a person's breath by
successfully completing a transition course in breath alcohol analysis under
the auspices of the Division of Forensic Sciences. |
Permits issued by the Division of Forensic Sciences authorizing
individuals to perform chemical analyses of a person's blood, urine, or breath
pursuant to this Chapter shall be in a form approved by the Division of
Forensic Sciences. Permits will indicate the individual approved to perform
analysis, an issue and expiration date, and the type of analysis approved to
perform, i.e., breath alcohol, blood alcohol, or blood and urine drug testing.
In addition the permit will clearly indicate whether testing must be performed
under supervision. In the case of breath analysis the type of instrument
approved for use will also be indicated.
| (2) |
All chemical tests on
blood and/or urine not performed by Georgia Bureau of Investigation personnel
must be performed on instruments approved by the Director of the Division of
Forensic Sciences. Requests for approval of instruments to perform chemical
testing of blood and urine along with proposed maintenance guidelines will be
submitted to the Director of the Division of Forensic Sciences or his or her
designee. Approval of such request is at his or her discretion pursuant to
O.C.G.A. § 40-6-392. Upon approval of any
testing instrument for the analysis of blood and/or urine a certificate of
approval shall be issued detailing the agency, the date approved, the
instrument serial number, and the date of the approval expiration. Such
certificate shall be self authenticating and evidence that the instrument was
approved by the Division of Forensic Sciences as required by O.C.G.A. § 40-6-392. Such approval shall not
apply when any substantial modification to the instrument's original design has
been made such that it no longer has all its parts attached and in working
order as prescribed by the manufacturer or when the instrument is not in
substantial compliance with the maintenance guidelines submitted. Failure to
maintain testing instruments as stated in the guidelines for instrument
maintenance may be considered grounds for revocation of the certificate of
approval. Factors evaluated in the approval of maintenance guidelines for
testing instruments shall include but are not limited to:
| (a) |
Documentation of substantial compliance
with the manufacturer's recommendations for maintenance; |
| (b) |
Documentation of all maintenance
performed including the date, action taken, the individual performing the
maintenance, and the results of the maintenance including acceptable
performance of known quality control samples following such
maintenance; |
| (c) |
Documentation that
instrument maintenance is performed by individuals sufficiently trained to
perform instrument maintenance; |
| (d) |
Documentation that the instrument has all its parts attached and in good
working order as prescribed by the manufacturer; |
| (e) |
Documentation that the instrument is
suitable for the purpose for which it is being used; |
| (f) |
Documentation of quality control measures
to ensure reliable analysis such as positive and negative controls; |
| (g) |
Documentation that the instrument
exhibits the sensitivity, resolution, and specificity necessary for its
intended purpose and is evaluated for suitability prior to use. |
|
| (3) |
Types of instruments
considered for confirmatory testing of blood or urine for drug content include
gas chromatography mass spectrometry, gas chromatography tandem mass
spectrometry, liquid chromatography mass spectrometry, liquid chromatography
tandem mass spectrometry, or other comparable structural elucidation technique
as determined by the Director of the Division of Forensic Sciences or his or
her designee. |
| (4) |
Types of
instruments considered for testing of blood for alcohol content include head
space gas chromatograph, fluorescence polarization immunoassay, cloned enzyme
donor immunoassay, enzyme immunoassay, or other comparable technique as
determined by the Director of the Division of Forensic Sciences or his or her
designee. |
| (5) |
Breath tests other
than the original alcohol-screening test shall be conducted on a breath alcohol
analyzer approved by the Director of the Division of Forensic Sciences or his
or her designee. Any other type of breath alcohol analyzer not specifically
listed in this paragraph must be approved by the Director of the Division of
Forensic Sciences or designee prior to its use in the State.
| (a) |
The Intoxilyzer Model 5000 manufactured
by CMI, Inc. is an approved instrument for breath alcohol tests conducted on or
before December 31, 2015; |
| (b) |
The
Intoxilyzer Model 9000 manufactured by CMI, Inc. is an approved instrument for
breath alcohol tests conducted on or after January 1, 2013; |
|
| (6) |
All breath tests other than
the original alcohol-screening test will be performed in accordance with Rule
92-3-.02(2) of
these regulations. The operator's permit will be conspicuously displayed in the
room and in the immediate vicinity of the place where the test is conducted, or
the operator will have on his or her person or immediate possession for display
upon request a valid permit in accordance with Rule
92-3-.02(2). |
| (7) |
All blood and urine drug tests will be
performed by the Georgia Bureau of Investigation, Division of Forensic Sciences
or by entities specifically approved by the Director of the Division of
Sciences for this purpose. All entities approved by the Division of Forensic
Sciences to perform chemical analyses of blood and urine for drugs shall be
accredited by a nationally recognized accrediting body. A list of all entities
approved for the purpose of conducting chemical tests for drugs will be kept on
file at the Georgia Bureau of Investigation to be made available upon request.
Approval of entities to perform chemical tests of blood or urine for drugs
shall be at the discretion of the Director of the Division of Forensic Sciences
or his or her designee. Such approval shall not apply when any substantial
change to the method submitted has been made or when any person executing such
method fails to substantially comply with the method as written when submitted
for approval. Entities requesting approval to perform chemical tests of blood
and/or urine for drugs must submit all methods used for chemical testing under
O.C.G.A. § 40-6-392 as well as accompanying
calibration procedures and validation documents. All blood and urine drug
testing methods submitted to the Division of Forensic Sciences for approval
shall be evaluated for the following:
| (a) |
Whether the method is suitable for the purpose for which it was
submitted; |
| (b) |
Whether the method
employs a minimum of two analytical techniques for positive identification of
an analyte where at least one of the techniques is structurally elucidating
(e.g., gas chromatography/ mass spectrometry, liquid chromatography/ mass
spectrometry or liquid chromatography/ mass spectrometry/mass
spectrometry); |
| (c) |
Whether the
method includes quality control measures to ensure reliable analysis such as
positive and negative controls; |
| (d) |
Whether the method's accuracy and measurement uncertainty for quantification
meet acceptance criteria as determined by the Director of the Division of
Forensic Sciences or his or her designee. These acceptance criteria are based
on minimum acceptability requirements set forth for the Division of Forensic
Sciences and will be made available to the applicant agency on
request; |
| (e) |
Whether the method's
working range for quantification includes the relevant pharmacological
concentrations for the analytes of interest; |
| (f) |
Whether the method is specific for the
analytes of interest; |
| (g) |
Whether
the method complies with a nationally recognized quality control standard such
as ISO/IEC 17025. |
|
| (8) |
The Director, Division of Forensic Sciences:
| (a) |
will cause each instrument used in the
administration of breath tests to be checked periodically for calibration and
operation and a record of the results of all such checks maintained; |
| (b) |
at his discretion may cause any operator
administering breath tests to be checked for operating proficiency.
Unsatisfactory operation proficiency checks shall be one of several criteria
for permit revocation. |
|
| (9) |
All blood and/or urine alcohol tests will
be performed in accordance with a quantitative Gas Chromatographic technique or
any equivalent procedure comparable in accuracy to Gas Chromatography. Any
method used by an entity other than the Division of Forensic Sciences will be
evaluated for approval by the Director of the Division of Forensic Sciences or
his or her designee and such approval shall be at his or her discretion. Upon
approval of any testing method a certificate of approval shall be issued
detailing the agency, the date approved, and the date of the approval
expiration. Such certificate shall be self authenticating and evidence that the
method submitted was approved by the Division of Forensic Sciences as required
by law. Such approval shall not apply when any substantial change to the method
submitted has been made or when any person executing such method fails to
substantially comply with the method as written when submitted for approval.
Entities requesting approval to perform blood and/or urine alcohol tests must
submit all methods used for testing under O.C.G.A. § 40-6-392 as well as accompanying
calibration procedures and validation documents. Factors evaluated in the
approval of testing methods by outside agencies shall include:
| (a) |
Whether the method is generally accepted
in the scientific community for the purpose for which it is being
submitted; |
| (b) |
Whether the method
employs replicate analysis; |
| (c) |
Whether the method includes quality control measures to ensure reliable
analysis such as positive and negative controls; |
| (d) |
Whether the method's accuracy and
measurement uncertainty for quantification meet acceptance criteria as
determined by the Director of the Division of Forensic Sciences or his or her
designee. These acceptance criteria are based on minimum acceptability
requirements set forth for the Division of Forensic Sciences and will be made
available to the applicant agency on request; |
| (e) |
Whether the method's working range for
quantification includes all alcohol levels between 0.02 and 0.40 g/dL of blood
or equivalent; |
| (f) |
Whether the
method is specific for ethanol; |
| (g) |
Whether the method complies with a nationally recognized quality control
standard such as ISO/IEC 17025. |
|
| (10) |
The Director of the Division of Forensic
Sciences, at his discretion, may require any person authorized to perform
chemical tests and/or report results of such testing of blood or urine to
divide a specimen and after analysis submit it to the Director, with his report
of the specimen. Alternatively, the Director may submit a sample of known
alcohol or drug content to any person holding a permit to analyze blood or
urine or require them to participate in an external proficiency testing program
of his or her choice at his or her discretion. The failure to submit a sample
or to satisfactorily analyze a specimen on request will be one of several
criteria for revocation of a permit. |
| (11) |
Except as forbidden by law, a report of
every evidential breath test, excluding initial alcohol-screening tests, shall
be made by the individual authorized to issue such reports. |
| (12) |
| (a) |
The
methods approved by the Division of Forensic Sciences for conducting an
evidential breath alcohol analysis shall consist of the following:
| (1) |
the analysis shall be conducted on an
approved instrument as defined in
92-3-.06(5). |
| (2) |
the analysis shall be performed by an
individual holding a valid permit, in accordance with Rule
92-3-.02(2);
and |
| (3) |
the testing instrument
shall have been checked periodically for calibration and operation, in
accordance with Rule
92-3-.06(8)(a); |
|
| (b) |
Administrative, procedural,
and/or clerical steps performed in conducting a test shall not constitute a
part of the approved method of analysis. |
|
The fee charged for the withdrawal of a person's blood pursuant
to O.C.G.A. Section
40-5-55 and
40-6-392 shall not exceed the
reasonable and customary charges for such service in the local medical
community. All statements for such services shall be submitted to and paid by
the jurisdiction (municipal corporation or political subdivision) in which the
arrest or accident giving rise to such procedure occurred.
| (1) |
The
violation of any of the rules and regulations of the Georgia Bureau of
Investigation promulgated under the provisions of the Uniform Rules of the Road
by a permit holder shall constitute ground upon which the Director of the
Division of Forensic Sciences may revoke such permit. |
| (2) |
If the Director of the Division of
Forensic Sciences receives a complaint or has reason to believe that a permit
holder is violating any provision of the rules and regulations, he shall notify
such permit holder that a hearing will be held at a place and time designated
by the Director to determine if the alleged infraction has occurred. |
| (3) |
The hearing shall be conducted by the
Director of the Division of Forensic Sciences or by someone he shall
designate. |
| (4) |
Upon revocation of a
permit, the Director of the Division of Forensic Sciences or designee shall
notify the permit holder, the permit holder's immediate supervisor and the
Court(s) of the county or city where the permit holder is employed and in which
the results of any tests performed by the permit holder could have been
introduced as evidence. |
