BILL ANALYSIS
AB 599
Page 1
Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON HEALTH
Dave Jones, Chair
AB 599 (Hall) - As Introduced: February 25, 2009
SUBJECT : Forensic blood alcohol testing laboratories.
SUMMARY : Exempts a laboratory that is accredited in forensic
alcohol analysis by the American Society of Crime Laboratory
Directors/Laboratory Accreditation Board (ASCLD/LAB) or by
another accrediting body approved by the Forensic Alcohol Review
Committee (review committee) from oversight by the Department of
Public Health (DPH).
EXISTING LAW :
1)Requires laboratories engaged in forensic alcohol analysis by
or for law enforcement agencies for the purposes of
determining alcohol concentration in persons involved in
traffic accidents or violations (forensic alcohol
laboratories) to comply with DPH regulations in existence on
December 31, 2004, until those regulations are revised, as
specified.
2)Prohibits DPH from requiring licensing of forensic alcohol
laboratories, notwithstanding licensing requirements in
regulations in 1) above.
3)Requires forensic alcohol laboratories to follow the ASCLD/LAB
guidelines for annual external proficiency testing, as
specified. (Proficiency testing in forensic alcohol analysis
is a quality assurance activity in which a laboratory or
analyst analyzes samples to determine whether they correctly
identify the alcohol concentration of the samples.)
4)Requires DPH to establish the review committee with specified
membership to review DPH regulations concerning forensic
alcohol laboratories, suggest revisions, and provide these
suggested revisions to the California Health and Human
Services Agency (CHHSA) for approval. Requires DPH to adopt
CHHSA-approved recommendations of the review committee.
Existing Regulations :
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1)Require each forensic alcohol laboratory to have a valid
license issued in accordance with regulations, and establish
qualifications for licensing, including staffing and personnel
functions and qualifications, maintenance of a quality control
program, satisfactory performance in proficiency tests
conducted by DPH, and passing on-site inspections. However,
SB 1623 (Johnson), Chapter 337, Statutes of 2004, eliminates
the licensing authority of DPH while leaving regulations in
place until revised, as specified.
2)Require organizations conducting training for forensic alcohol
analysts to obtain approval from DPH, and authorize DPH to
contract with qualified persons to administer examinations of
applicants for analysts.
3)Specify the procedures and conditions for collecting blood,
urine, and breath samples for analysis.
4)Require each forensic alcohol laboratory to file with DPH a
detailed and current written description of methods used for
forensic alcohol analysis, including calibration procedures
and a quality control program for each method, and for these
descriptions to be readily available to those performing
analyses and to DPH.
5)Establish forensic alcohol laboratory performance standards,
including accuracy and precision within 5% of the known value
of a sample and adequate specificity for traffic law
enforcement, among others, as evaluated by DPH through
proficiency tests.
6)Specify procedural standards, and require a specified quality
control program, for methods of forensic alcohol analysis.
7)For breath alcohol analysis, authorize the use of breath
analysis instruments outside of forensic alcohol laboratories
by non-forensic alcohol laboratory analysts only if such
places and persons are under the jurisdiction of a
governmental agency or licensed forensic alcohol laboratory,
as specified.
8)Require forensic alcohol analysis instruments to meet
specified federal standards. For each person tested, require
two samples which result in blood alcohol determinations that
differ by no more than 0.02%. Specify test procedures, error
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tolerances, and frequency for performance testing of breath
alcohol testing equipment.
9)Require forensic alcohol laboratories to maintain records of
personnel, analysis samples and results, quality control
program, proficiency tests, equipment performance tests, and
training.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, DPH oversight
of a laboratory that is accredited by ASCLD/LAB results in a
duplicative process, wasting thousand of dollars a year, and
does nothing to ensure that the highest quality of forensic
blood alcohol testing is achieved in the State of California.
The author states this bill is needed because the removal of
DPH oversight of ASCLD/LAB accredited laboratories would
eliminate the duplicative process that is currently in place,
resulting in savings of taxpayer resources and allowing for
more regular inspection by DPH of non-accredited laboratories.
The author contends the accreditation of crime laboratories
through ASCLD/LAB would ensure a higher standard for crime
laboratories that has not been achieved under the oversight of
DPH.
2)FORENSIC ALCOHOL LABORATORIES . According to DPH, in
California, 38 forensic alcohol laboratories conduct alcohol
analysis and other forensic tests. City, county, and state
governmental law enforcement agencies operate 28 of these
forensic alcohol laboratories, and ten are private
laboratories. Some of these private laboratories provide
testing services for law enforcement through contractual
arrangements with cities and counties. Twenty-six of the
forensic alcohol laboratories (all governmental) are
accredited by ASCLD/LAB. The 38 forensic alcohol laboratories
annually conduct approximately 200,000 alcohol tests,
including breath alcohol tests conducted by law enforcement
officials.
3)dui . According to the Department of Motor Vehicles (DMV),
there were nearly 204,000 driving under the influence of
alcohol (DUI) arrests in California in 2007, for a rate of 863
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per 100,000 licensed drivers. Approximately 3% of DUI arrests
were felony arrests and 97% were misdemeanor arrests. Of all
DUI arrests, three-quarters led to convictions for DUI, and
7.4% led to convictions for alcohol-related reckless driving.
DMV reports that the 1,489 alcohol-involved fatalities
represented 37.5% of the state's motor vehicle-related deaths.
DMV also reports there were 30,783 traffic injuries that
involved alcohol use.
4)DPH FORENSIC ALCOHOL PROGRAM . According to the DPH Web site,
the conviction and removal of drunk drivers from California's
streets and highways provides important public health and
safety benefits. DPH notes that in 2005, alcohol-related
collisions killed 1,719 California residents, and thousands
more were injured. DPH states enforcement of the state's DUI
laws by testing for concentration of alcohol in persons
involved in traffic violations is a critical component of the
state's efforts to control drunk driving. The goals of the
Forensic Alcohol Program (FAP) are to ensure the competency of
forensic alcohol laboratories, the qualifications of the
employees of the laboratories, and the accuracy of breath
alcohol testing procedures used by law enforcement agencies.
DPH states that unlike other forensic testing, which typically
yields qualitative results, forensic alcohol testing is
quantitative, and accuracy is critically important when the
difference between a blood alcohol concentration of 0.07% and
0.08% determines whether a law has been violated.
DPH states that SB 1623 removed its statutory authority to
license forensic alcohol laboratories. DPH also ceased
routine onsite inspections at that time, but maintains
authority to conduct inspections for cause, and is still
required to regulate forensic alcohol laboratories. The DPH
forensic alcohol analysis regulatory program staff includes
three chemists and one administrative support position.
Proficiency Tests . DPH annually requires two proficiency
testing events of each forensic alcohol laboratory, and
laboratories are required to participate in an additional
ASCLD/LAB-approved proficiency test and provide these results
to DPH. Each proficiency testing event includes four samples
at two levels of alcohol concentration. Laboratories that use
more than one method for forensic alcohol analysis must submit
test reports for each method used. A laboratory must reach a
finding within 5% of the correct answer in order to pass. If
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a laboratory does not pass, DPH works with the laboratory to
correct the problem.
Laboratory Personnel . DPH regulations allow only DPH-approved
forensic alcohol supervisors, analysts, and trainees to
perform forensic alcohol analysis. DPH approves individuals
nominated by their laboratories based on education and
experience, demonstrated accuracy in the analysis of
proficiency test samples provided by DPH, and successful
completion of an examination prescribed by DPH. DPH states
that it generally reviews nominees' qualifications within one
week, and provides examinations for nominees three to four
times per year. DPH states it has not recently received
complaints about the frequency of examinations.
Forensic Alcohol Methods . DPH no longer requires each forensic
alcohol laboratory to annually submit its lab procedures for
review. However, laboratories are still required to maintain
detailed and current written descriptions of each method and
to make them available to DPH on request.
Training Programs . Laboratories providing training for persons
to meet requirements for forensic alcohol testing, for
example, for law enforcement officers operating breath alcohol
instruments, must submit descriptions of the training to DPH
for review and approval.
5)Review committee . Pursuant to SB 1623, in 2005, DPH
established the review committee to review DPH regulation of
forensic alcohol laboratories and recommend revisions to limit
the regulations to those that are reasonably necessary to
ensure the competence of the laboratories. The review
committee membership is required to include eight members
representing prosecuting attorneys; defense attorneys; law
enforcement; coroners, medical examiners, or pathologists;
criminalists; toxicologists; crime laboratory directors; and,
DPH. According to DPH, the review committee has met eight
times but has not yet completed its determinations. Last
year, the review committee created a subcommittee to develop
draft regulations. The subcommittee has met three times and
has drafted revisions to existing regulations. The review
committee met on April 10, 2009 to review the draft
regulations developed by the subcommittee.
6)ASCLD/LAB ACCREDITATION . According to the 2006 ASCLD/LAB
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Accreditation Program Overview, the ASCLD/LAB-International
laboratory accreditation program uses International Standards
Organization (ISO) standard "ISO/IEC 17025 General
requirements for the competence of testing and calibration
laboratories," published in 2005. ISO/IEC 17025 is not
specific to forensic alcohol analysis labs, but instead
applies to testing and calibration laboratories generally.
ASCLD/LAB-International published supplemental requirements
for the accreditation of forensic science laboratories, which
include the following disciplines: controlled substances;
trace evidence; biology; questioned documents; digital
evidence; toxicology; firearms and toolmarks; latent prints;
and, crime scene. Additionally, ASCLD/LAB-International
published supplemental requirements for the accreditation of
breath alcohol calibration laboratories.
The ASCLD/LAB-International accreditation criteria address
numerous aspects of laboratory operations, and generally
require a lab to have a procedure to address a specific issue
but in many areas are not prescriptive as to the specific
methods for accomplishing a given objective. For example, the
criteria for personnel include a requirement that the
management of the laboratory formulate the goals with respect
to education, training, and skills of the laboratory
personnel. The supplemental requirements for the
accreditation of breath alcohol calibration laboratories also
generally are not prescriptive as to how a lab must accomplish
an objective. For example, the laboratory must have a
director whose responsibilities and authorities must be
defined, or documentation to support calibrations must be such
that another competent analyst could evaluate what was done
and interpret the data. However, the ASCLD/LAB criteria do
specify that an analyst who works in breath alcohol
calibration must have a baccalaureate or advanced degree in a
natural science, toxicology, criminalistics, or a closely
related field.
ASLCD/LAB grants accreditation for five years, provided a
laboratory continues to meet standards, including completion
of an annual report and participation in prescribed
proficiency testing programs. A new application and on-site
inspection are required every fifth year.
7)BUREAU OF state auditS report . In 1999, the California Bureau
of State Audits (BSA) published a report that concluded the
DPH (then Department of Health Services (DHS)) FAP needed to
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reevaluate its regulation of forensic alcohol laboratories.
BSA stated DPH's efforts emphasized reviewing written methods,
did not focus on issues that would improve laboratories'
analyses, and were not completed promptly. BSA recommended
the FAP should spend more time on site visits and increase
proficiency testing, noting that proficiency testing evaluates
the abilities of the analysts but also indirectly assesses the
laboratory's written methods. The BSA report also noted that
FAP review might duplicate a great deal of the ASCLD/LAB's
evaluation and might not be fully necessary. FAP responded by
stating that it was implementing recommendations to ensure
timely reviews, and would be able to double its staffing and
therefore be able to improve timeliness and increase
inspections. FAP also responded that ASCLD/LAB does not
actually have performance standards or procedure requirements
specific to forensic alcohol analysis, among other concerns.
8)PREVIOUS LEGISLATION .
a) SB 1623 eliminates the licensing authority of DHS (now
DPH) over forensic alcohol laboratories, and requires
laboratories to ensure that blood alcohol testing
instruments and calibrating devices meet specifications,
and follow ASCLD/LAB guidelines.
b) SB 1849 (Johnson) of 2000 would have required DHS (now
DPH) to revise regulations of laboratories engaged in
breath alcohol testing in accordance with specified
reference materials and to submit the proposed regulations
to a review committee. SB 1849 would have also required
DPH to license a laboratory accredited by ASCLD/LAB to
perform forensic alcohol tests, if the director of DPH
determined that ASCLD/LAB's published standards met those
of DPH regulations, and would have exempted an accredited
laboratory from departmental regulations, except
proficiency testing requirements. Governor Davis vetoed SB
1849, stating:
While the August, 1999 report by the Bureau of
State Audits regarding the DHS forensic alcohol
regulatory program raised some serious concerns,
I am confident that the DHS can address the
issues that have been raised and am directing DHS
to make these concerns a high priority.
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In addition, this bill goes beyond the
recommendations of the Bureau of State Audits.
If I am not convinced that sufficient progress
has been made by DHS within the next year, I will
consider signing a modified version of this bill.
9)SUPPORT . Numerous proponents, including the Ventura County
Sheriff's Department, the District Attorney of Santa Clara
County, the San Diego County Sheriff's Department, the
Sheriff-Coroner Department of San Bernardino County, the
Sheriff-Coroner Department, County of Orange, the Los Angeles
County Sheriff's Department, and the City and County of San
Francisco Police Department, write in support of this bill
that DPH regulation of forensic alcohol laboratories is
duplicative and unnecessary to ensure the highest quality, and
this bill will allow DPH to direct limited resources to
regulating non-accredited laboratories. Proponents further
argue that ASCLD/LAB standards are much higher than those of
DPH, and pertain not only to alcohol but other forensic
laboratory functions as well.
10)OPPOSITION . The California Attorneys for Criminal Justice
(CACJ) and the California DUI Lawyers Association (CDLA) write
in opposition to this bill that it precludes public
participation and oversight of critical regulations,
negatively impacts DMV hearings related to driver's license
suspensions, and disrupts standardized approaches to DUI
cases. CACJ and CDLA write that DMV is authorized to take an
administrative action to suspend the driver's license of
anyone arrested for DUI; this administrative action enjoys
shortcuts based on the Evidence Code which allow DMV to base
its case on documentary evidence rather than requiring live
testimony from witnesses. CDLA states one of the shortcuts
relies on the regulations governing forensic alcohol
laboratories based on a presumption that a government agent
performs its duties properly. The regulations provide the
basis for the presumption that the results obtained by the
forensic alcohol laboratory are reliable. CACJ and CDLA write
that the blood alcohol reports are proper only if the
individual who conducted the analyses and prepared the reports
comply with the regulations. CDLA writes that without the
regulations, there will be no official duty to follow any
specific standard and DMV will be forced to call witnesses to
establish that the ASCLD/LAB accreditation criteria form an
adequate basis for reliable results. CDLA further argues that
under this bill, laboratories could choose whatever means they
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desired to meet the accreditation criteria because the
criteria allow the individual laboratories to justify their
procedures. CDLA states the ASCLD/LAB standards are not
specific and that accreditation is a five-year cycle. CDLA
states accreditation is a good thing but should not take the
place of regulation, and exception from regulation will open a
floodgate of litigation. CDLA suggests as an alternative to
this bill that the work of the review committee be adopted in
statute, thereby preserving the intent of SB 1623.
11)POLICY QUESTIONS .
a) Given the importance of ensuring the safety of our
roads, the magnitude of the DUI problem, and the potential
consequences of a DUI conviction, is it prudent to
relinquish regulation of forensic alcohol laboratories?
b) The review committee has had a subcommittee working on
draft regulations. Should the Legislature consider
enacting in statute the revised regulations if they are
approved by the review committee?
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Crime Lab Directors (sponsor)
American Federation of State, County, and Municipal Employees,
AFL-CIO
California Peace Officers' Association
California Police Chiefs Association
City and County of San Francisco Police Department
District Attorney, County of Santa Clara
Los Angeles County Sheriff's Department
San Diego County Sheriff's Department
Sheriff-Coroner Department, County of Orange
Sheriff-Coroner Department, San Bernardino County
Ventura County Sheriff's Department
Opposition
California Attorneys for Criminal Justice
California DUI Lawyers Association
Analysis Prepared by : Allegra Kim / HEALTH / (916) 319-2097