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2001 Virginia Attorney General Reports and Opinions 1 (2001)

handle is hein.sag/sagva0024 and id is 1 raw text is: 00-100 CRIMES AND OFFENSES GENERALLY: CRIMES INVOLVING HEALTH AND SAFETY - DRIVING MOTOR VEHICLE, ETC., WHILE INTOXICATED. COMMISSIONS, BOARDS AND INSTITUTIONS: DEPARTMENT OF CRIMINAL JUSTICE SERVICES. Substantial, rather than strict, compliance with regulatory procedure for validating breath test device is sufficient. Regulatory procedure complies with statutory requirements for validating breath tests to be used as evidence in prosecutions. The Honorable George W. Grayson Member, House of Delegates January 12, 2001 You ask whether a licensee must comply strictly with the regulatory procedure for validating a breath test device prior to conducting a test to determine the alcohol or drug content of a person's blood. If not, you ask whether such procedure complies with the requirements of § 18.2-268.9 of the Code of Virginia. Your inquiries pertain specifically to the numbering in the Virginia Administrative Code of the Regulations for Breath Alcohol Testing, which has been changed to reflect the transfer by the 1996 Session of the General Assembly of the Division of Forensic Science from the Department of General Services to the Department of Criminal Justice Services.' As a result and pursuant to its authority,2 the Department of Criminal Justice Services amended the regulations to reflect the change.3 The amended regulations became effective November 23, 2000.4 The regulation pertaining to the methods and procedures of conducting breath tests have been changed as follows: The licensee[51 shall verify that the breath test device is properly calibrated and in proper working order by conducting a room air blank analysis prior to analysis of the breath of the person and by conducting a validation test with a control sample immediately fllowi analysis of the breath o the-person as part of the test protocol.161 This regulation is procedural in nature.7 Substantial compliance therewith shall be deemed sufficient. Section 18.2-268.9 provides for the validity of a breath test so that test results may be used as evidence in prosecutions by the Commonwealth. For a chemical analysis of a person's breath to be valid as evidence in a prosecution for driving

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