72-10-502.   Implied consent to chemical tests for alcohol or drugs -- Number of tests -- Refusal -- Person incapable of refusal -- Results of test available -- Who may give test -- Evidence.

       (1) (a)  A person operating an aircraft in this state consents to a chemical test or tests of the person's breath, blood, urine, or oral fluids:
       (i)  for the purpose of determining whether the person was operating or in actual physical control of an aircraft while having a blood or breath alcohol content statutorily prohibited under Section 72-10-501, or while under the influence of alcohol, any drug, or combination of alcohol and any drug under Section 72-10-501, if the test is or tests are administered at the direction of a peace officer having grounds to believe that person to have been operating or in actual physical control of an aircraft in violation of Section 72-10-501; or
       (ii)  if the person operating the aircraft is involved in an accident that results in death, serious injury, or substantial aircraft damage.
       (b) (i)  The peace officer determines which of the tests are administered and how many of them are administered.
       (ii)  The peace officer may order any or all tests of the person's breath, blood, urine, or oral fluids.
       (iii)  If an officer requests more than one test, refusal by a person to take one or more requested tests, even though the person does submit to any other requested test or tests, is a refusal under this section.
       (c) (i)  A person who has been requested under this section to submit to a chemical test or tests of the person's breath, blood, urine, or oral fluids may not select the test or tests to be administered.
       (ii)  The failure or inability of a peace officer to arrange for any specific chemical test is not a defense to taking a test requested by a peace officer, and it is not a defense in any criminal, civil, or administrative proceeding resulting from a person's refusal to submit to the requested test or tests.
       (2) (a)  If the person has been placed under arrest and has then been requested by a peace officer to submit to any one or more of the chemical tests provided in Subsection (1) and refuses to submit to any chemical test, the person shall be warned by the peace officer requesting the test that a refusal to submit to the test is admissible in civil or criminal proceedings as provided under Subsection (8).
       (b)  Following this warning, unless the person immediately requests that the chemical test offered by a peace officer be administered, a test may not be given.
       (3)  Any person who is dead, unconscious, or in any other condition rendering the person incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent provided for in Subsection (1), and the test or tests may be administered whether the person has been arrested or not.
       (4)  Upon the request of the person who was tested, the results of the test or tests shall be made available to that person.
       (5) (a)  Only a physician, registered nurse, practical nurse, or person authorized under  Section 26-1-30 to draw blood under Section 41-6a-523, acting at the request of a peace officer, may withdraw blood to determine the alcohol or drug content. This limitation does not apply to the taking of a urine, breath, or oral fluid specimen.
       (b)  Any physician, registered nurse, practical nurse, or person authorized under Section
26-1-30 to draw blood under Section 41-6a-523 who, at the direction of a peace officer, draws a sample of blood from any person whom a peace officer has reason to believe is flying in violation of this chapter, or hospital or medical facility at which the sample is drawn, is immune from any civil or criminal liability arising from drawing the sample, if the test is administered according to standard medical practice.
       (6) (a)  The person to be tested may, at the person's own expense, have a physician of the person's own choice administer a chemical test in addition to the test or tests administered at the direction of a peace officer.
       (b)  The failure or inability to obtain the additional test does not affect admissibility of the results of the test or tests taken at the direction of a peace officer, or preclude or delay the test or tests to be taken at the direction of a peace officer.
       (c)  The additional test shall be subsequent to the test or tests administered at the direction of a peace officer.
       (7)  For the purpose of determining whether to submit to a chemical test or tests, the person to be tested does not have the right to consult an attorney or have an attorney, physician, or other person present as a condition for the taking of any test.
       (8)  If a person under arrest refuses to submit to a chemical test or tests or any additional test under this section, evidence of any refusal is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was operating or in actual physical control of an aircraft while under the influence of alcohol, any drug, or combination of alcohol and any drug.
       (9)  The results of any test taken under this section or the refusal to be tested shall be reported to the Federal Aviation Administration by the peace officer requesting the test.

Breath testing in the State of Utah is conducted by either the Intoxilyzer 5000 or 8000.  While an entire discussion of how the Intoxilyzer measures alcohol is omitted here, there are some very specific rules that law enforcement agencies must follow in order for results to be admissible.  First, the law enforcement officer must be certified on the machine at the time of testing.  If the officer is not certified, then it must be assumed that the test was administered inappropriately, and thus the results cannot be admitted.  The second rule is the Baker rule.  The rule essentially states that the officer must check the mouth of the suspect and then let a period of not less than 15 minutes elapse between the time the officer checks the mouth and the test.  In addition, the officer must ensure that the suspect does not put anything in his/her mouth during the 15 minute period.  The reasoning behind the rule is that certain items can affect the results of the Intoxilyzer, including types of gum and residual mouth alcohol.  Research indicates that the passage of 15 minutes eliminates the possibility of false positives.  Finally, the machine itself has to properly calibrated.  The following is the administrative rule that applies to the certification and calibration of the Intoxilyzer machine, be it the 5000 or 8000 models:

A. Acceptance: All breath alcohol testing instruments employed by Utah law enforcement officers, to be used for evidentiary purposes, shall be approved by the department.

(1) The department shall maintain an approved list of accepted instruments for use in the state. Law enforcement entities shall select breath alcohol instruments from this accepted list, which list shall be available for public inspection at the department during normal working hours.

(2) A manufacturer may make application for approval of an instrument by brand and/or model not on the list. The department shall subsequently examine and evaluate each instrument to determine if it meets criteria specified by this rule and applicable purchase requisitions.

B. Criteria: In order to be approved, each manufacturer's brand and/or model of breath testing instrument shall meet the following criteria.

(1) Breath alcohol analysis of an instrument shall be based on the principle of infra-red energy absorption, or any other similarly effective procedure specified by the department.

(2) Breath specimen collected for analysis shall be essentially alveolar and/or end expiratory in composition according to the analysis method utilized.

(3) The instrument shall analyze a reference sample, such as headspace gas from a mixture of water and a known weight or volume of ethanol, held at a constant temperature, or a compressed inert gas and alcohol mixture in a pressurized cylinder. The result of the analysis must agree with the reference sample's predicted value, within plus or minus 5%, or .005, whichever is greater, or such limits as set by the department. For example, if a known reference sample is .10, a plus or minus range of 5%=.005 (.10 x 5 %= .005). The test result, using a known .10 solution or compressed inert gas and alcohol solution, could range from .095-.105.

(4) The instrument shall provide an accurate and consistent analysis of breath specimen for the determination of alcohol concentration for law enforcement purposes. The instrument shall function within the manufacturer's specifications of:

(a) electrical power,

(b) operating temperature,

(c) internal purge,

(d) internal calibration,

(e) diagnostic measurements,

(f) invalid test procedures,

(g) known reference sample testing,

(h) measurements of breath alcohol, as displayed in grams of alcohol per 210 liters of breath.

(5) Any other tests, deemed necessary by the department, may be required in order to correctly and adequately evaluate the instrument, to give the most accurate and correct results in routine breath alcohol testing and be practical and reliable for law enforcement purposes.

C. List: Upon proof of compliance with this rule, an instrument may be approved by brand and/or model and placed on the list of accepted instruments. By inclusion on the department's list of accepted instruments, it will be deemed to have met the criteria listed above.

D. Certification: All breath alcohol instruments purchased for law enforcement evidentiary purposes, shall be certified before being placed into service.

(1) The breath alcohol testing program supervisor, hereinafter, "program supervisor", shall determine if each individual instrument, by serial number, conforms to the brand and/or model that appears on the commissioner's accepted list.

(2) Once an individual instrument has been purchased, found to be operating correctly and placed into service, the Certificate of Calibration with the serial number of that instrument, shall be placed in a file for certified instruments. Certificates of Calibration verifying the certification of any breath testing instrument shall be available during normal business hours through the Department of Public Safety, more specifically the Utah Highway Patrol Training Section, 5681 S. 320 West, Murray, UT 84107.

(3) The department may, at any time, determine if a specific instrument is unreliable and/or unserviceable. Pending such a finding, an instrument may be removed from service and certification may be withdrawn.

(4) Only certified breath alcohol testing technicians, hereinafter "technicians", as defined by Section 7 of this rule when required, shall be authorized to provide expert testimony concerning the certification and all other aspects of the breath testing instrument under his/her supervision.

R714-500-5. Program Certification.

A. All breath alcohol testing techniques, methods, and programs, hereinafter "program", must be certified by the department.

B. Prior to initiating a program, an agency or laboratory shall submit an application to the department for certification. The application shall show the brand and/or model of the instrument to be used and contain a resume of the program to be followed. An on-site inspection shall be made by the department to determine compliance with all applicable provisions in this rule.

C. Certification of a program may be denied, suspended, or revoked by the department if, based on information obtained by the department, program supervisor, or technician, the agency or laboratory fails to meet the criteria as outlined by the department.

D. All programs, in order to be certified, shall meet the following criteria:

(1) The results of tests to determine the concentration of alcohol on a person's breath shall be expressed as equivalent grams of alcohol per 210 liters of breath. The results of such tests shall be entered in a permanent record book for department use.

(2) Printed checklists, outlining the method of properly performing breath tests shall be available at each location where tests are given. Test record cards used in conjunction with breath testing shall be available at each location where tests are given. Both the checklist and test record card, after completion of a test should be retained by the operator.

(3) The instruments shall be certified on a routine basis, not to exceed 40 days between calibration tests, by a technician, depending on location of instruments and area of responsibility.

(4) Certification procedures to certify the breath testing instrument shall be performed by a technician as required in this rule, or by using such procedures as recommended by the manufacturer of the instrument to meet its performance specifications, as derived from:

(a) electrical power tests,

(b) operating temperature tests,

(c) internal purge tests,

(d) internal calibration tests,

(e) diagnostic tests,

(f) invalid function tests,

(g) known reference samples testing, and

(h) measurements displayed in grams of alcohol per 210 liters of breath.

(5) Results of tests for certification shall be kept in a permanent record book retained by the technician. A report of the certification procedure shall be recorded on the approved form Certificate of Calibration and sent to the program supervisor.

(6) Except as set forth in paragraph 7 in this section, all analytical results on a subject test shall be recorded, using terminology established by state statute and reported to three decimal places. For example, a result of 0.237g/210L shall be reported as 0.237.

(7) Internal standards on a subject test do not have to be recorded numerically.

(8) The instrument must be operated by either a certified operator or technician.

R714-500-6. Operator Certification.

A. All breath alcohol testing operators, hereinafter "operators", must be certified by the department.

B. All training for initial and renewal certification will be conducted by a program supervisor and/or technician.

C. Initial Certification

(1) In order to apply for certification as an operator of a breath testing instrument, an applicant must successfully complete a course of instruction approved by the department, which must include as a minimum the following:

a. One hour of instruction on the effects of alcohol in the human body.

b. Two hours of instruction on the operational principles of breath testing.

c. One hour of instruction on the D.U.I. Summons and Citation/D.U.I. Report Form.

d. One and one half hours of instruction on the legal aspects of chemical testing, driving under the influence, case law and other alcohol related laws.

e. One and one half hours of laboratory participation performing simulated tests on the instruments, including demonstrations under the supervision of a class instructor.

f. One hour for examination and critique of course.

(2) After successful completion of the initial certification course a certificate will be issued that will be valid for two years.

D. Renewal Certification

(1) The operator is required to renew certification prior to its expiration date. The minimum requirement for renewal of operator certification will be:

a. Two hours of instruction on the effects of alcohol in the human body.

b. Two hours of instruction on the operational principles of breath testing.

c. One hour of instruction on the D.U.I. Summons and Citation/D.U.I. Report Form and testimony of arresting officer.

d. Two hours of instruction on the legal aspects of chemical testing and detecting the drinking driver.

e. One hour for examination and critique of course.

f. Or the operator must successfully complete the Compact Disc Computer program including successful completion of exam. Results of exams must be forwarded to program supervisor and a certification certificate will be issued.

(2) Any operator who allows his/her certification to expire one year or longer must retake and successfully complete the initial certification course as outlined in paragraph C of this section.

R714-500-7. Technician Certification.

A. All technicians, must be certified by the department.

B. The minimum qualifications for certification as a technician are:

(1) Satisfactory completion of the operator's initial certification course and/or renewal certification course.

(2) Satisfactory completion of the Breath Alcohol Testing Supervisor's course offered by Indiana University, or an equivalent course of instruction, as approved by the program supervisor.

(3) Satisfactory completion of the manufacturer's maintenance/repair technician course.

(4) Maintain technician's status through a minimum of eight hours training each calendar year. This training must be directly related to the breath alcohol testing program, and must be approved by the program supervisor.

C. Any technician who fails to meet the requirements of paragraph B, sub-paragraph (4) of this section and allows his/her certification to expire for more than one year, must renew his/her certification by meeting the minimum requirements as outlined in paragraph B, sub-paragraphs (1), (2), and (3) of this section.

under construction

under construction