Texas Administrative Code
Title 37 - PUBLIC SAFETY AND CORRECTIONS
Part 1 - TEXAS DEPARTMENT OF PUBLIC SAFETY
Chapter 19 - BREATH ALCOHOL TESTING REGULATIONS
Subchapter A - BREATH ALCOHOL TESTING REGULATIONS
Section 19.4 - Operator Certification
Universal Citation: 37 TX Admin Code § 19.4
Current through Reg. 50, No. 13; March 28, 2025
(a) Certification.
(1) Prior to certification an
applicant must establish proof of association, or pending association with: a
law enforcement agency, or a laboratory, actively engaged in evidential breath
alcohol testing, or a certified school of instruction in Texas or proof of
pending association upon receipt of certification.
(2) Conviction history:
(A) persons convicted of a felony or a Class
A misdemeanor shall not be eligible to be a certified operator;
(B) persons convicted of a Class B
misdemeanor within the last 10 years shall not be eligible to be a certified
operator;
(C) persons receiving a
driver license suspension or a denial to issue a driver license for refusal to
submit to the taking of a specimen per the provisions of Texas Transportation
Code, Chapter 724 or Chapter 522 within the last 5 years shall not be eligible
to be a certified operator.
(3) Prior to initial certification as a
breath test operator, an applicant must successfully complete a course of
instruction meeting the criteria set forth in §
19.6 of this title (relating to
Approval of Courses of Instruction).
(4) Prior to certification as an operator of
a breath alcohol testing instrument, an applicant must satisfactorily meet the
criteria, set forth by the scientific director or a designated representative,
as detailed in this paragraph:
(A) a written
examination;
(B) establish
competency in the operation of the instrument on which the operator is to be
certified and the proper completion of all required reports and
records;
(C) failure of the written
examination and/or failure to establish competency in the operation of the
instrument will cause the applicant to be ineligible for reexamination for a
period of 30 days. A subsequent failure of either criteria will require that
the candidate attend and satisfactorily complete the initial course of
instruction for certification of a breath test operator.
(5) Upon successful completion of the
requirements for certification, the scientific director will issue the
individual an operator certificate for a period of time designated by the
scientific director or until the next examination for renewal unless
inactivated or suspended.
(6) If an
operator is certified to operate a specific brand and/or model of equipment and
is required to be certified on an additional brand and/or model of equipment,
the scientific director may waive portions of this section and only require
instruction needed to acquaint the applicant with proper operation of the new
brand and/or model of equipment.
(b) Renewal of current certification. In order to maintain current certification, the operator is required to renew certification prior to its expiration date. The minimum requirement for renewal of operator certification will be:
(1) The
proper completion of any combination of five subject and/or practice tests as
defined in the Texas Breath Alcohol Testing Program Operator Manual since the
last issuance of an operator certificate per the provisions of subsection
(a)(5) or (b)(5) of this section.
(2) The satisfactory biennial completion of a
course of instruction, the contents of which should include, but not be limited
to, topics such as:
(A) a brief review of the
theory and operation of the breath alcohol test equipment;
(B) a detailed review of the breath alcohol
analysis and reporting procedures;
(C) a review of procedural updates resulting
from recent court decisions and legislation;
(D) a review of current issues in the field
of breath alcohol testing;
(E) a
written examination
(3)
Renewal of certification will be denied and current certification will be
inactivated in accordance with subsection (d) of this section when the
operator:
(A) fails to properly complete a
minimum of five tests in accordance with subsection (b)(1) of this section;
or
(B) fails the written
examination.
(4) An
operator who fails renewal will be given the reason for failure and is not
eligible to be reexamined for a period of 30 days. Reexamination will be
pursuant to subsection (a)(4) of this section. A resulting failure will require
that the operator attend and satisfactorily complete the initial course of
instruction for certification of a breath test operator in order to regain
current certification.
(5) Upon
successful completion of the requirements for renewal of certification, the
scientific director will issue the individual an operator certificate for a
period of time designated by the scientific director or until next examination
for renewal unless inactivated or suspended.
(c) Proficiency requirements.
(1) The scientific director, or a designated
representative, or the operator's technical supervisor may at any time require
an operator to demonstrate proficiency in the proper operation of the
instrument and analysis reporting procedures.
(2) It is the responsibility of the operator
to maintain proficiency.
(3)
Failure to pass a proficiency test will result in the suspension of the
operator's certification for 30 days.
(d) Certification inactivation and suspension.
(1) Inactivation may be initiated
by the certified operator in case of voluntary surrender of certification or by
anyone with the authority to suspend. The technical supervisor or operator
shall, without delay, notify the office of the scientific director of any such
inactivation. Challenges to involuntary inactivation will be resolved at the
discretion of the scientific director. Inactivation will be utilized, but is
not limited to, as provided in this paragraph:
(A) an operator transfers to a position where
certification as a breath test operator is no longer desired;
(B) an operator fails to renew certification
prior to its expiration;
(C) an
operator terminates employment under which certification was acquired;
or
(D) administrative program
control to safeguard the scientific integrity of the breath alcohol testing
program.
(2) Suspension
of certification will be utilized when the scientific director and/or a
technical supervisor determines an operator intentionally or purposefully
disregards or violates these regulations, or commits a violation of law
relating to breath testing, or falsely or deceitfully obtains certification, or
for malfeasance or noncompliance with any provision of these regulations, or
when in the technical supervisor's judgment the operator's performance is
unreliable or the operator is incompetent.
(A) The technical supervisor shall, without
delay, notify the scientific director in writing of any such suspension and
furnish a copy of such notice to the suspended operator and the operator's
appropriate supervisor or department head. The suspended operator shall not be
permitted to operate the instrument until such time as certification has been
restored pursuant to subsection (e) of this section.
(B) Upon receipt of the notification of
suspension, the scientific director shall initiate, if not previously
completed, an inquiry culminating in sustaining the suspension or setting aside
the suspension.
(C) The minimum
period of suspension as determined by the scientific director will be for a
period of time not less than 30 days. The technical supervisor or a designated
representative of the scientific director may recommend a specific period of
suspension to the scientific director.
(D) Due to the immediate nature and the
procedure for appeal, the individual initiating the suspension shall not be
required to confer, consult, or obtain permission or approval from anyone prior
to the initiation of the suspension. However, all suspensions must be
consistent with procedures outlined in this subchapter.
(3) An operator whose certification has been
suspended may appeal such action in writing to the assistant director of the
major division responsible for crime laboratory activities, Texas Department of
Public Safety, who will determine if the action of the scientific director will
be affirmed or set aside. The assistant director may reinstate the
certification under such conditions as deemed necessary and notify the
scientific director in writing.
(e) Recertification. Certification that has been inactivated or suspended must be regained before evidential analyses may be administered. Recertification shall take place as detailed in this subsection:
(1) recertification after
inactivation for the failure to complete the renewal process prior to the
expiration of current certification will be pursuant to subsection (a)(4) of
this section;
(2) recertification
after inactivation or suspension will be pursuant to subsection (a)(4) of this
section;
(3) recertification after
a change in instrumentation or testing methodologies will be at the discretion
of the scientific director, will be pursuant to subsection (a)(6) of this
section.
(f) Certificate. The issuance of a certificate to the breath test operator shall be evidence that the operator has met the requirements for initial certification and/or renewal of certification.
(g) Verification. The technical supervisor, when required, shall verify all aspects of operator certification, by direct testimony or by affidavit.
Disclaimer: These regulations may not be the most recent version. Texas may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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