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. |