stmt basis & purpose & specific statutory auth & reg analysis

(5 CCR 1005-2)
Adopted by the Board of Health on September 19, 2012
Basis and Purpose.
Under Section 42-4-1304(4), C.R.S., the Board of Health has the authority to
promulgate these rules concerning the testing for alcohol and other drugs,
including rules designed “as are necessary to ensure that collection and testing of
samples is accomplished to the fullest extent.” Section § 42-4-1301.1(5), C.R.S.,
requires the Colorado Department of Public Health and Environment to set
standards concerning the health of the person being tested and the accuracy of
such tests.
Through the State Board of Health Rules, the following are governed:
Collection of specimens, specimen type, specimen storage, certification of
evidential breath alcohol test (EBAT) instrumentation, certification of operators
and instructors of evidential breath alcohol test instruments, certification of
standard solutions, standard operating procedure for evidential breath alcohol
test(s), permanent and mobile facility requirements, and certification of
laboratories performing alcohol and drug testing.
These rules establish minimum standards for certification and approval of entities
and processes utilized for alcohol and drug testing. These rules are applicable to:
samples taken while driving under the influence, driving while impaired, driving
with excessive alcohol content; vehicular assaults and vehicular homicides
involving an operator while under the influence of alcohol or one or more drugs
or both; the testing of samples of blood or other bodily substances from the bodies
of pilots in command, motorboat or sailboat operators in command, or drivers and
pedestrians fifteen years of age or older who die within four hours after
involvement in a crash involving a motor vehicle, a motorboat, a sailboat or an
aircraft; and consumption of alcohol by underage persons and records related
The purposes for revisions to 5 CCR 1005-2 are as follows:
 To establish relevant and consistent language that reflect the certification,
and testing of breath alcohol samples using new EBAT instrumentation
statewide by law enforcement for DUI/DWAI enforcement purposes.
 To update the forensic toxicology laboratory certification requirements for
the purpose of maintaining consistency with recognized standards of best
practices for forensic toxicology laboratories performing testing for
DUI/DUID purposes.
To remove outdated, non-applicable requirements and to clarify existing
language found in the Rule.
Specific Statutory Authority.
These rules are promulgated pursuant to the following statutes:
Sections 42-4-1301, 42-4-1301.1, 42-4-1303, 42-4-1304, and 25-1-108, C.R.S.
and are consistent with Sections 18-3-106, 18-3-205 and 18-13-122, C.R.S.
These statutes address Vehicle and Traffic Alcohol and Drug Offenses, Vehicular
Assaults, Vehicular Homicides and Consumption of Alcohol by Underage
Major Factual and Policy Issues Encountered.
The decision to make changes to these Rules is based on the following reasons:
 The existing EBAT instrumentation used statewide for DUI/DWAI
purposes is being replaced with new instrumentation. The increased
capabilities and efficiencies with the new instrumentation will impact the
current requirements found in the Rule. Many of the responsibilities
placed upon law enforcement agencies will be substantially reduced as a
result of the efficiencies gained.
 To continue the ongoing commitment to ensure no gaps between
recognized industry standards of best practices for forensic toxicology
laboratories and the certification requirements occur over time.
 To add clarification to existing language and requirements wherever
possible throughout the Rule.
 Removal of outdated language and/or non-applicable
Alternative Rules Considered and Why Rejected.
The Department has identified the necessity to establish and/or revise existing
language to accurately reflect the certification and testing protocols that will be
used with the new EBAT instrumentation.
Additionally, to ensure the requirements found within the Rule remain consistent
with industry best practices for forensic toxicology laboratories performing
DUI/DUID testing, periodic review and where indicated, requirement revision
must be performed.
Providing clarification to existing language in conjunction with the removal of
outdated, non-applicable requirements must also be performed to ensure the Rule
remains accurate.
The objectives cannot be achieved by leaving the existing language in place, thus
requiring changes to the Rule.
The Department’s options to address these identified needs are as follows:
 Leave the existing language unchanged.
The Department has identified that the need to use the rule making process
is necessary to remove the outdated language, clarify existing rules, and
improve the laboratory standards. Without the rule making process, the
Department is unable to change any language to the rules to address the
identified needs. Therefore, the option of leaving the existing language
unchanged could not be considered by the Department.
 Revise the existing language.
The Department’s proposed rules incorporate changes to the language of
the current rule that facilitate revisions consistent with the Department’s
goals. Revision to the existing language will improve the understanding
and thus application of the state’s DUI/DUID enforcement programs.
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