BILL ANALYSIS �
AB 2425
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
AB 2425 (Quirk) - As Amended: April 8, 2014
SUBJECT : Laboratories: review committee.
SUMMARY : Provides for a temporary exemption from complying with
existing regulations for law enforcement laboratories engaging
in forensic alcohol analysis tests if the laboratory is
accredited and provides the exemption only until the Department
of Public Health (DPH) updates their existing regulations.
EXISTING LAW :
1)Requires DPH to adopt and publish regulations for the operation
of law enforcement laboratories engaged in the performance of
blood alcohol level tests of blood, urine, tissue and breath
samples from persons involved in traffic accidents or traffic
violations.
2)Requires the blood alcohol level tests of breath samples to be
performed in accordance with regulations adopted by DPH, which
establish procedures to be used by law enforcement agencies in
administering these tests.
3)Requires laboratories to follow the standards of accreditation
agencies for proficiency testing.
4)Requires laboratories to ensure all breath alcohol instruments
and calibrating devices are products listed as conforming by
the federal Department of Transportation.
5) Requires DPH to establish a forensic alcohol review committee,
with specified membership.
6)Requires the review committee to review the existing regulations
and develop amendments to the existing regulations and submit
them to the California Health and Human Services Agency.
7)Requires DPH to adopt regulations adopting the review committee's
recommendations.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
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committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, although the
review committee was created to updated DPH's archaic
regulations for forensic blood alcohol analysis and has met
regularly over the last 10 years, DPH and the Health and Human
Services Agency (HHSA) have yet to approve any regulatory
changes. The author states DPH regulations were written in
1971 and have not been updated in nearly 30 years and many
sections are outdated or inconsistent with California law,
current health advisories, and modern instrumentation and
technology. Another issue the author highlights is that
complying with the regulation's requirements for college
degrees and coursework is difficult because degrees have
changed and cross-referencing them with courses from the 1980s
is challenging and creates unnecessary workload and backlog.
Regulations make no mention of modern technology that has
advanced data processing systems and mobile breath instruments
that allow laboratories to reach new levels of efficiency and
accuracy. For example, the National Institute of Standards
and Technology (NIST) traceable dry gas standards allows for
scientists to check the calibration of their instruments with
every single subject breath test, versus every 10 days with a
solution as required by the current regulations
The author argues DPH's unwillingness to approve new
regulations impedes the review committee from completing the
work the Legislature has tasked them to do. The author
concludes the antiquated regulations compromise public safety
and prosecution of drunk drivers.
2)BACKGROUND . Prior to 1969, laboratories performing forensic
alcohol analysis were largely unregulated. The forensic
community recognized a need for consistency and guidelines to
provide the most accurate forensic alcohol testing. In 1969,
legislation was passed authorizing the Department of Health
Services (DHS), a predecessor to DPH, to adopt regulations for
the testing of biological samples for alcohol content from
persons subject to the implied consent provisions of the
Vehicle Code. The new law required DHS to form an Advisory
Committee on Alcohol Determination comprised of district
attorneys, public defenders, coroners, criminalists,
pathologists, and analytical chemists. The committee met in
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1970, and DHS regulations, commonly referred to as Title 17,
were put in place in 1971. All laboratories engaged in the
performance of forensic alcohol analysis, by or for a law
enforcement agency, were now licensed and subject to these
regulations. The regulations were last revised in 1986. Only
laboratories performing alcohol analysis for law enforcement
were required to be licensed. All other laboratories and all
other forensic disciplines were, and remain, exempt from state
regulation.
3)DPH REGULATORY PROGRAM . Significant complaints about the
program date back to the mid-1980s. These complaints grew and
culminated in a request for an audit by the Bureau of State
Audits which was carried out and the audit report was
published in 1999. The audit by the Bureau of State Audits,
Department of Health Services: The Forensic Alcohol Program
Needs to Reevaluate its Regulatory Efforts, concluded that the
primary focus of DHS and additional cumbersome requirements
were doing little to improve the work of alcohol laboratories.
(At the time, DHS was still the administering agency.) The
audit documented significant waste that was occurring as a
result of the requirements of the program. Shortfalls and
flaws in the regulations were also identified. Finally, the
audit recommended the department rely more on the
accreditation requirements to avoid duplication and free
resources for more useful activities.
An example cited in the Bureau of State Audits report as being
burdensome is the requirement that laboratory personnel be
present when peace officers were being trained on breath
alcohol equipment. For large departments with hundreds, or
even thousands of officers, this seemed like it wasted
resources by requiring the presence of laboratory personnel
when there were other officers who were capable of doing the
training. The audit report recommended this practice be
reassessed.
In 2004, the Legislature responded to the identified issues
and problems with the program and enacted SB 1623 (Johnson),
Chapter 337, Statutes of 2004. The bill's purpose was to
reduce the unnecessary costs of complying with the DHS
regulatory program, streamline the regulatory requirements,
and develop regulations that actually reflected the state of
technology and practice in labs. SB 1623 took the unusual
step of eliminating the requirement that DHS license the labs.
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In addition, it established the Forensic Alcohol Review (FAR)
Committee. The FAR Committee is comprised of scientific, law
enforcement and legal representatives and was given the
authority to evaluate regulations and provide revisions that
will ensure the competence of laboratories and employees to
prepare, analyze, and report the results of biological samples
tested for alcohol content and comply with applicable laws.
4)SUPPORT . According to the sponsor, the Santa Clara County
District Attorney's Office, the failure to update the
regulations has put public safety at risk. Since the last
update in 1986, the sponsor explains, there have been many
changes in the instrumentation and technology surrounding the
testing of specimens, the process by which it's done,
education requirements for laboratory employees, and
California statutes concerning driving under the influence.
The sponsor argues this bill recognizes how important it is
for the regulations to be incompliance with the law and
current laboratory standards and will allow the concepts
developed by the review committee to be adopted into
regulation.
5)PREVIOUS LEGISLATION .
a) AB 599 (Hall) of 2009 would have exempted forensic
alcohol laboratories are accredited by the American Society
of Crime Laboratory Directors/Laboratory Accreditation
Board, or by another accrediting body approved by the FAR
Committee, from the requirement to comply with state
regulations pertaining to forensic alcohol laboratories.
AB 599 was vetoed by Governor Schwarzenegger who said it
was an improper delegation of state regulatory authority to
a private entity and directed stakeholders to work with DPH
on alternative solutions to improve regulation of labs.
b) SB 1623 (Johnson), Chapter 337, Statutes of 2004,
eliminated the licensing authority of DHS over forensic
alcohol laboratories and created the forensic alcohol
review committee,
c) SB 1849 (Johnson) of 2000 would have required DHS to
adopt regulations governing the operation of forensic
alcohol laboratories and required DHS to convene a review
committee to review the regulations and would have allowed
labs that meet accreditation standards to be licensed if
AB 2425
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DHS determines that the standards meet or exceed those in
regulations. SB 1849 was vetoed by Governor Davis who said
he was confident DHS would make progress in responding to
the audit report and if it did not, he would consider
signing legislation in the future.
1)POLICY COMMENT. This Committee has seen a number of bills
introduced this year to address the issue of DPH not
developing timely and appropriate regulations in specific
areas. Perhaps given the broad and significant
responsibilities of DHS, it is not surprising some efforts
will lag. However, the Committee may want to consider if DPH
is revealing, albeit indirectly, that some of these programs
are of very low priority in the overall priorities of public
health generally and DPH specifically. If the programs are of
such low priority, it raises the question whether it is worth
administering the program. In the case of law enforcement
laboratories that conduct blood alcohol testing, the first
step in eliminating state regulation was taken by eliminating
the licensing requirement 10 years ago.
REGISTERED SUPPORT / OPPOSITION :
Support
County of Santa Clara District Attorney's Office
Opposition
None on file.
Analysis Prepared by : Roger Dunstan / HEALTH / (916) 319-2097