section shall not affect the admissibility of the results of a breath test pursuant to this section.

There is pending litigation all over the country, and here in Arizona as well, wherein the State and the vendors of the various breath testing devices are being asked to produce their "Source Code Data" for independent scientific review and scrutiny. In other words, "Precisely how does your machine take an 80 cc sample of hydrocarbon molecules and give an alcohol concentration based on .08 grams of alcohol per 210 liters of breath?" Bear in mind that 210 liters of breath is the volume of a 55 gallon drum! How does the machines radio frequency interference detector work? How does the mouth alcohol detect function work? It should be noted that Judges in New Jersey and Florida have refused to admit purported breath test evidence until the State produces the requested Source Code data. They reason that a criminal conviction should never be shrouded in secrecy.

One other point, the ADPS has been on the cutting edge of introducing the new CMI Intoxilyzer 8000 breath testing device into Arizona. In 2003, the Tennessee Bureau of Investigation ran a comprehensive evaluation of that device. It was shown to have failed ALL tests for accuracy and precision and was not recommended for use in that State. And THIS is the machine to which we will entrust our freedoms without human intervention or scrutiny?

Perhaps we have degenerated to the point where we allow "trial by machine." If we are going to prosecute people for serious crimes, let us at the very least insist on good science. We hear the phrase "Police Science" bandied about in these types of debates. I would submit to you that "Police Science" did for science what "Military Intelligence" did for intelligence.

I ask that you vote against this Bill and encourage your colleagues to do so as well. Science must never have a political agenda.

Respectfully,

Edward A. Loss III

-------------------------

AN ACT

Amending sections 5-395.02 and 5-395.04, Arizona Revised Statutes; amending section 28-1301, Arizona Revised Statutes, as amended by Laws 2005, chapter 312, section 2; amending sections 28-1304 and 28-1323, Arizona Revised Statutes; amending title 28, chapter 4, article 5, Arizona Revised Statutes, by adding sections 28-1465, 28-1466 and 28-1467; relating to driving under the influence.

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 5-395.02, Arizona Revised Statutes, is amended to read:

START_STATUTE5-395.02. Admissibility of breath test or other records; adoption of rules for tests; permits

A. The results of a breath test administered for the purpose of determining a person's alcohol concentration as defined in section 5-395 are admissible as evidence in any trial, action or proceeding on establishing the following foundational requirements:

1. The test was performed using a quantitative breath testing device approved by the department of health services or the department of public safety. A properly authenticated certification by the department of health services or the department of public safety or judicial notice of department of health services or department of public safety rules is sufficient to establish this requirement.

2. The operator who conducted the test possessed a valid permit issued by the department of health services or the department of public safety to operate the device used to conduct the test.

3. Duplicate tests were administered and the test results were within 0.02 alcohol concentration of each other or an operator observed the person charged with the violation for twenty minutes immediately preceding the administration of the test.

4. The operator who conducted the test followed an operational checklist approved by the department of health services or the department of public safety for the operation of the device used to conduct the test. The testimony of the operator is sufficient to establish this requirement.

5. The device used to conduct the test was in proper operating condition. Records of periodic maintenance that show that the device was in proper operating condition at a time before and after the test are admissible in any proceeding as prima facie evidence that the device was in proper operating condition at the time of the test. Such Calibration checks with a standard alcohol concentration solution bracketing each person's duplicate breath test are one type of records of periodic maintenance that satisfies the requirements of this section. The records are public records.

B. Compliance with subsection A of this section is the only requirement for the admission in evidence of a breath test result.

C. The inability of any person to obtain manufacturer's schematics and software for a quantitative breath testing device that is approved as prescribed in subsection A of this section shall not affect the admissibility of the results of a breath test pursuant to this section.

C. D. Records that may be obtained or are otherwise maintained pursuant to section 28-1327 are admissible as evidence in any trial, action or proceeding. END_STATUTE

Sec. 2. Section 5-395.04, Arizona Revised Statutes, is amended to read:

START_STATUTE5-395.04. Preliminary breath tests; authority

A. A law enforcement officer who has reasonable suspicion to believe that a person has committed a violation of section 5-395 may request that the person submit to a preliminary breath test or tests before an arrest.

B. In addition to a breath test or tests the officer may require that the person submit to further testing pursuant to section 5-395.03.

C. The director of the department of health services or the department of public safety shall adopt rules prescribing the approval of quantitative preliminary breath testing devices. END_STATUTE

Sec. 3. Section 28-1301, Arizona Revised Statutes, as amended by Laws 2005, chapter 312, section 2, is amended effective from and after August 31, 2006, to read:

START_STATUTE28-1301. Definitions

In this chapter, unless the context otherwise requires:

1. "Certified ignition interlock device" means an ignition interlock device that is certified pursuant to article 5 of this chapter.

2. "Commercial motor vehicle" means a motor vehicle or combination of motor vehicles used to transport passengers or property if the motor vehicle either:

(a) Has a gross combined weight rating of twenty-six thousand one or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than ten thousand pounds.

(b) Has a gross vehicle weight rating of twenty-six thousand one or more pounds.

(c) Is a school bus.

(d) Is a bus.

(e) Is used in the transportation of materials found to be hazardous for the purposes of the hazardous materials transportation act (49 United States Code sections 5101 through 5127) and is required to be placarded under 49 Code of Federal Regulations section 172.504, as adopted by the department pursuant to chapter 14 of this title.

3. "Education" means a program in which a person participates in at least sixteen hours of classroom instruction relating to alcohol or other drugs.

4. "Ignition interlock device" means a device that is based on alcohol specific electrochemical fuel sensor technology that meets the national highway traffic safety administration specifications, that connects a breath analyzer to a motor vehicle's ignition system, that is constantly available to monitor the concentration by weight of alcohol in the breath of any person attempting to start the motor vehicle by using its ignition system and that deters starting the motor vehicle by use of its ignition system unless the person attempting to start the motor vehicle provides an appropriate breath sample for the device and the device determines that the concentration by weight of alcohol in the person's breath is below a preset level.

5. "Installer" means a person who installs is certified by the department to install ignition interlock devices and provides provide services to the public related to ignition interlock devices.

6. "License" means any license, temporary instruction permit or temporary license issued under the laws of this state or any other state pertaining to the licensing of persons to operate motor vehicles.

7. "Manufacturer" means a person who offers is certified by the department to offer ignition interlock devices for installation in motor vehicles in this state.

8. "Screening" means a preliminary interview and assessment of an offender to determine if the offender requires alcohol or other drug education or treatment.

9. "Tampering" means an overt or conscious attempt to physically disable, circumvent or otherwise disconnect the certified ignition interlock device from its power source that allows the operator to start the engine without taking and passing the requisite breath test.

10. "Treatment" means a program consisting of at least twenty hours of participation in a group setting dealing with alcohol or other drugs in addition to the sixteen hours of education. END_STATUTE

Sec. 4. Section 28-1304, Arizona Revised Statutes, is amended effective from and after August 31, 2006, to read:

START_STATUTE28-1304. Driving under the influence abatement fund

A. The driving under the influence abatement fund is established consisting of monies deposited pursuant to section 28-1382, subsection D, paragraph 3 and subsection F, paragraph 3 and section 28-1383, subsection J, paragraph 2.

B. The oversight council on driving or operating under the influence abatement established by section 28-1303 shall administer the fund.

C. Twenty-five per cent of the monies deposited in the fund shall be used for grants for innovative programs pursuant to section 28-1303, subsection H, paragraph 2 and seventy per cent of the monies deposited in the fund shall be used for grants to political subdivisions and tribal governments pursuant to section 28-1303, subsection H, paragraph 1.

D. Not more than five per cent of the monies deposited in the fund shall be used for both of the following:

1. Administrative purposes of the oversight council on driving or operating under the influence abatement.

2. Payment of the costs of notification prescribed by section 28-1467.

E. Monies in the fund are:

1. Continuously appropriated.

2. Exempt from the provisions of section 35-190 relating to lapsing of appropriations.

F. On notice from the oversight council on driving or operating under the influence abatement, the state treasurer shall invest and divest monies in the fund as provided in section 35-313, and monies earned from investments shall be credited to the fund. END_STATUTE

Sec. 5. Section 28-1323, Arizona Revised Statutes, is amended to read:

START_STATUTE28-1323. Admissibility of breath test or other records

A. The results of a breath test administered for the purpose of determining a person's alcohol concentration are admissible as evidence in any trial, action or proceeding on establishing the following foundational requirements:

1. The test was performed using a quantitative breath testing device approved by the department of health services or the department of public safety. A properly authenticated certification by the department of health services or the department of public safety or judicial notice of department of health services or the department of public safety rules is sufficient to establish this requirement.

2. The operator who conducted the test possessed a valid permit issued by the department of health services or the department of public safety to operate the device used to conduct the test.

3. Duplicate tests were administered and the test results were within 0.02 alcohol concentration of each other or an operator observed the person charged with the violation for twenty minutes immediately preceding the administration of the test.

4. The operator who conducted the test followed an operational checklist approved by the department of health services or the department of public safety for the operation of the device used to conduct the test. The testimony of the operator is sufficient to establish this requirement.

5. The device used to conduct the test was in proper operating condition. Records of periodic maintenance that show that the device was in proper operating condition at a time before and after the test are admissible in any proceeding as prima facie evidence that the device was in proper operating condition at the time of the test. Calibration checks with a standard alcohol concentration solution bracketing each person's duplicate breath test are one type of records of periodic maintenance that satisfies the requirements of this section. The records are public records.

B. Compliance with subsection A of this section is the only requirement for the admission in evidence of a breath test result.

C. The inability of any person to obtain manufacturer's schematics and software for a quantitative breath testing device that is approved as prescribed in subsection A of this section shall not affect the admissibility of the results of a breath test pursuant to this section.

C. D. Records that may be obtained or that are otherwise maintained pursuant to section 28-1327 are admissible as evidence in any trial, action or proceeding.END_STATUTE

Sec. 6. Title 28, chapter 4, article 5, Arizona Revised Statutes, is amended effective from and after August 31, 2006, by adding sections 28-1465, 28-1466 and 28-1467, to read:

START_STATUTE28-1465. Rule making; manufacturers and installers

The director shall adopt rules pursuant to title 41, chapter 6 as the director deems necessary for the administration and enforcement of this article and certification and decertification of ignition interlock device manufacturers and installers.END_STATUTE

START_STATUTE28-1466. Display of certification; transfer prohibited

A certification issued pursuant to this article:

1. Shall be conspicuously displayed in the place of business for which it was obtained.

2. Is not transferable or subject to sale or reassignment.END_STATUTE

START_STATUTE28-1467. Installer and manufacturer certification; cancellation; notice

If the director cancels an installer's or manufacturer's certification pursuant to a rule adopted by the director, the director shall notify each person with an ignition interlock device from the installer that the person has thirty days to obtain another installer.END_STATUTE

Sec. 7. Emergency

This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law.