BILL ANALYSIS
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Elaine K. Alquist, Chair
BILL NO: AB 599
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AUTHOR: Hall
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AMENDED: As Introduced
HEARING DATE: July 8, 2009
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REFERRAL: Public Safety
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CONSULTANT:
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Hansel/
SUBJECT
Forensic alcohol testing laboratories
SUMMARY
Exempts forensic alcohol laboratories that are accredited
by the American Society of Crime Laboratory
Directors/Laboratory Accreditation Board, or by another
accrediting body approved by the forensic alcohol review
committee, from the requirement to comply with state
regulations pertaining to forensic alcohol laboratories.
CHANGES TO EXISTING LAW
Existing law:
Requires laboratories that perform forensic alcohol
analysis tests by or for law enforcement agencies on blood,
urine, tissue, or breath samples to comply with regulations
pertaining to competence, staffing, and laboratory
procedures, as specified, but provides that such
laboratories shall not be licensed by the Department of
Public Health (DPH).
Requires DPH to establish a forensic alcohol review
committee consisting of law enforcement officials, defense
attorneys, coroners and other members, as specified, to
Continued---
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evaluate and recommend revisions to regulations that the
committee determines are necessary to ensure the competence
of laboratories and employees to prepare, analyze, and
report the results of tests.
Requires all laboratories that perform forensic alcohol
analysis tests by or for law enforcement agencies to follow
guidelines for proficiency testing established by the
American Society of Crime Laboratory Directors/Laboratory
Accreditation Board (ASCLD/LAB).
Existing state regulations:
Establish qualifications for forensic alcohol supervisors,
forensic alcohol analysts, or forensic alcohol analyst
trainees.
Require forensic laboratories to:
Meet established laboratory performance and procedure
standards;
Employ at least one forensic alcohol supervisor;
Maintain a quality control program in forensic alcohol
analysis procedures;
Demonstrate satisfactory performance in a proficiency
testing program conducted by, or approved by, DPH to
evaluate the accuracy of the forensic alcohol analyses
performed by the laboratory;
Maintain records pertaining to personnel, analysis
results, equipment, proficiency testing; and
Pass on-site inspections by the department.
This bill:
Exempts forensic alcohol laboratories that are accredited
by the ASCLD/LAB, or by another accrediting body approved
by the forensic alcohol review committee, from the
requirement to comply with state regulations pertaining to
forensic alcohol laboratories.
FISCAL IMPACT
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According to the Assembly Appropriations Committee analysis
of AB 599, no direct fiscal impact to DPH to continue
oversight of testing forensic alcohol labs in California.
BACKGROUND AND DISCUSSION
The author states that many of the forensic alcohol
laboratories that DPH regulates are also accredited by
ASCLD/LAB, which has higher standards than DPH for testing
procedures. The author argues that DPHs oversight is
duplicative, wastes thousands of dollars per year, and does
nothing to ensure high quality forensic blood alcohol
testing. By exempting accredited laboratories from
oversight by DPH, the department would be able to direct
its limited resources to overseeing unaccredited labs.
Forensic alcohol labs in California
According to DPH, 38 forensic alcohol laboratories in
California conduct alcohol
analysis and other forensic tests. City, county, and state
governmental law enforcement agencies operate 28 of these
forensic alcohol laboratories, and 10 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.
The department's regulations are designed to ensure the
competency of local forensic alcohol laboratories, the
qualifications of the employees of the laboratories, and
the accuracy of breath alcohol testing procedures used by
law enforcement agencies, which affects the admissibility
of tests into evidence in drunk driving cases.
Legislation in 2004 (SB 1623, Johnson, Chapter 337,
Statutes of 2004) removed the department's authority to
license the laboratories. Prior to this, the department
operated a forensic alcohol laboratory licensing and
regulatory program for more than 30 years. Current statute
still requires forensic alcohol labs to comply with all of
the department's regulations, and requires the department
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to enforce the regulations.
SB 1623 also established a review committee to evaluate the
department's regulations pertaining to forensic alcohol
testing in order to determine revisions that the review
committee determines are reasonably necessary. Under
current statute, the Health and Human Services Agency
(HHSA) can disapprove revisions proposed by the review
committee, but neither it or DPH can promulgate regulations
on its own.
DPH states that the review committee is composed of
representatives of groups involved in, or affected by, the
department's regulations (including the sponsor of AB 599,
the California Association of Crime Lab Directors). The
committee has met nine times, but has not completed its
determinations.
DPH also states that, with the passage of SB 1623, it has
ceased routine onsite inspections of forensic alcohol labs,
but it maintains authority to conduct inspections for
cause, and is still required to regulate forensic alcohol
laboratories. DPH annually requires two proficiency tests
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.
According to DPH, the conviction and removal of drunk
drivers from California's streets and highways provides
important public health and safety benefits. In 2005, 1,719
California residents were killed in alcohol-related
crashes, and thousands more were injured. Chemical testing
to determine the concentration of alcohol in the blood of
persons involved in traffic violations is a critical
component of the state's efforts to control drunk driving.
American Society of Crime Laboratory Directors/Laboratory
Accreditation Board
The ASCLD/LAB is a body affiliated with the American
Society of Crime Laboratory Directors that accredits crime
laboratories. To be accredited, a lab must submit an
application and supporting documents and pass an on-site
inspection. Accreditation is good for five years.
ASCLD/LAB conducts a proficiency testing program to assist
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labs in identifying areas where more training or more
stringent quality controls are necessary, and in
demonstrating their competency. According to ASCLD/LABs
website, there are 39 accredited crime labs in California,
including 13 that are operated by the state Department of
Justice.
Regulation versus accreditation
According to DPH, ASCLD/LAB accredits laboratories in nine
disciplines (not forensic alcohol analysis) and the
requirements are very general. The ASCLD/LAB requirements
are mostly related to the management of the laboratory, and
they are not the equivalent of laboratory regulations.
According to DPH, the ASCLD/LAB accreditation requirements
do not provide any specific laboratory performance or
procedure standards for blood or breath alcohol analysis.
In contrast, the department's regulations include specific
requirements to calibrate testing methods with specified
standards and provide analysis of quality control samples.
There are also standards of procedure covering sample
collection and retention.
DUI testing in California
In California, there is an "implied consent" law which
requires that a person being arrested for a DUI violation
must provide a blood or breath sample to determine the
person's blood alcohol level. Likewise, a blood or urine
sample may be required to determine if the person was under
the influence of drugs, or both drugs and alcohol, at the
time of driving. A person arrested for DUI has a choice of
a breath test or blood test to test for alcohol, or blood
or urine test to test for drugs.
Previous legislation
SB 1623 (Johnson), Chapter 337, Statutes of 2004),
eliminated the licensing authority of DHS (now DPH) over
forensic alcohol laboratories. Requires laboratories
performing forensic alcohol analysis to comply with
regulations governing forensic alcohol analysis as they
exist on December 31, 2004, and until such regulations are
revised and adopted and meet other requirements, as
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specified.
SB 1849 (Johnson) of 2000 would have required DHS (now DPH)
to adopt regulations governing the operation of forensic
alcohol laboratories and required the department to convene
a review committee to review the regulations. Would have
additionally allowed labs that meet accreditation standards
to be licensed if the department determines that the
standards meet or exceed those in regulations. 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. 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.
Arguments in 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, the City and County of
San Francisco Police Department, and the American
Federation of State, County, and Municipal Employees argue
that DPH regulation of forensic alcohol laboratories is
duplicative and unnecessary to ensure the highest quality,
and that 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.
Arguments in opposition
DPH states that the ASCLD/LAB accreditation standards,
which the bill would allow to be met in lieu of complying
with its regulations, are less stringent than its current
regulations. Specifically, DPH notes that ASCLD/LAB sets
no performance standards or procedure requirements specific
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to blood alcohol analysis or breath alcohol analysis.
There are also significant differences in requirements for
record keeping, proficiency testing, and employee
qualifications. Compliance with the requirements of the
department's regulations establishes the competence of the
laboratories and the scientific validity of blood and
breath alcohol analysis results, and ensures consistency of
testing for DUI cases throughout the state. Such results
can then be admitted into evidence in drunk driving cases.
DPH further points out that ASCLD/LAB is a voluntary
accreditation program conducted by the laboratories
themselves, which lacks regulatory authority.
The California Association of Medical Laboratory Technology
states that accreditation by a voluntary organization is
not the same as oversight through state laws and
regulations. CAMLT states that DPH and ASCLD/LAB focus on
different standards, with DPH focusing on accuracy and
reliability in the test results while ASCLD/LAB focuses on
the management of the laboratory. CAMLT also notes that
many clinical labs testing for alcohol and drugs face
duplicative standards, including federal, state, and
accreditation standards, but the legislative agencies
insure that there are minimum standards in place.
The California DUI Lawyers Association (CDLA) and
California Attorneys for Criminal Justice (CACJ) states
that AB 599 would preclude public participation in
development of standards for forensic alcohol labs and
would negatively impact the Department of Motor Vehicles
(DMV) hearings on drivers license suspensions.
Specifically, CDLA and CACJ state that test results from
accredited but unregulated labs will either be inadmissible
because they do not comply with regulations, or will be
ruled admissible, even if the lab and its employees do not
comply with state regulations.
PRIOR ACTIONS
Assembly Floor: 76-0
Assembly Appropriations:16-0
Assembly Health: 17-0
COMMENTS
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1. Bill may reduce reliability of test results.
According to DPH, state regulations pertaining to
forensic alcohol labs contain more detailed requirements
than the accreditation standards, particularly in the
area of laboratory testing procedures, which arguably
makes them more reliable for ensuring the accuracy and
validity of alcohol tests used to prosecute drunk driving
cases. Eliminating the requirement that accredited labs
comply with state regulations would reduce costs for
accredited labs. Proponents cite the costs of
duplicative proficiency testing requirements, and
approval of their lab procedures, as areas where some
costs could be saved, but they appear to be relatively
minor. Should the state move away from regulation of
forensic alcohol labs, at the risk of reducing the
accuracy and reliability of test results used in drunk
driving cases, when the resulting cost savings are minor?
POSITIONS
Support: California Association of Crime Lab Directors
(sponsor)
American Federation of State, County and
Municipal Employees (AFSCME)
California Peace Officers' Association
California State Sheriff's Association
District Attorney of Santa Clara County
Los Angeles County Sheriff's Department
San Bernardino County
San Diego County Sheriff's Regional Crime Laboratory
San Francisco Police Department
Sheriff-Coroner of Orange County
Ventura County Sheriff's Department
Oppose: California Association for Medical Laboratory
Technology
California Association of Professional Scientists
(CAPS)
California Department of Public Health
California DUI Lawyers Association (CDLA)
Public Policy Advocates, LLC
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