BILL ANALYSIS
AB 599
Page 1
ASSEMBLY THIRD READING
AB 599 (Hall)
As Introduced February 25, 2009
Majority vote
HEALTH 17-0 APPROPRIATIONS 16-0
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|Ayes:|Jones, Fletcher, Adams, |Ayes:|De Leon, Nielsen, |
| |Ammiano, | |Ammiano, |
| |Block, Carter, Conway, De | |Charles Calderon, Davis, |
| |Leon, | |Duvall, Fuentes, Hall, |
| |Emmerson, Hall, Hayashi, | |Harkey, Miller, |
| |Hernandez, Bonnie | |John A. Perez, Price, |
| |Lowenthal, | |Skinner, Solorio, Audra |
| |Nava, V. Manuel Perez, | |Strickland, Torlakson |
| |Salas, | | |
| |Audra Strickland | | |
| | | | |
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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 requires:
1)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)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.)
3)DPH to establish the Review Committee with specified
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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 :
1)Specify the procedures and conditions for collecting blood,
urine, and breath samples for alcohol analysis.
2)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.
3)Specify procedural standards, and require a specified quality
control program, for methods of forensic alcohol analysis.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, no direct fiscal impact.
COMMENTS : The author contends that this bill is needed because
the removal of DPH oversight of ASCLD/LAB accredited
laboratories would eliminate the duplicative process that is now
in place, allowing for more regular inspection by DPH of
non-accredited laboratories.
According to DPH, in California, 38 forensic alcohol
laboratories annually conduct approximately 200,000 alcohol
tests, including breath alcohol tests conducted by law
enforcement officials. City, county, and state governmental law
enforcement agencies operate 28 of these forensic alcohol
laboratories, and ten are private laboratories, some of which
provide testing services for law enforcement through contractual
arrangements with cities and counties. Twenty-six of the 38
forensic alcohol laboratories are accredited by ASCLD/LAB.
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 per 100,000
licensed drivers. Of all DUI arrests, three-quarters led to
convictions for DUI, and 7.4% led to convictions for
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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.
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. The goals of the
DPH 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 accuracy is critically important in forensic
alcohol testing, where the difference between a blood alcohol
concentration of 0.07% and 0.08% determines whether a law has
been violated.
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. 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 a
laboratory does not pass, DPH works with the laboratory to
correct the problem.
Pursuant to SB 1623 (Johnson), Chapter 337, Statutes of 2004, 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. 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, but did not have a quorum.
According to the 2006 ASCLD/LAB 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
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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 toxicology and numerous other
disciplines. Additionally, ASCLD/LAB-International published
supplemental requirements for the accreditation of breath
alcohol calibration laboratories. The ASCLD/LAB-International
accreditation criteria generally require a lab to have a
procedure to address a specific issue but are generally not
prescriptive as to what that procedure should be. 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.
The California Attorneys for Criminal Justice (CACJ) and the
California DUI Lawyers Association (CDLA) write in opposition to
this bill that it 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 administrative action to suspend the driver's
license of DUI arrestees; this administrative action enjoys
shortcuts 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 a presumption that a
government agent performs his or her duties properly in testing
for blood alcohol, and the DPH 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 as evidence only if the
individuals 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
desire to meet the ASCLD/LAB 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
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states accreditation should not take the place of regulation,
and that exception from regulation will open a floodgate of
litigation.
Analysis Prepared by : Allegra Kim / HEALTH / (916) 319-2097
FN: 0000803