Part II
Breath Tests Under §§18.2-268.9, 29.1-738.2, and 46.2-341.26:9 of the Code of Virginia

Article 1
Breath Test Administrative Procedures

6VAC40-20-30. Breath test devices.

Breath test devices shall be tested for accuracy by the department at least once every six months. All new breath test devices or those having been repaired by the manufacturer or the manufacturer's authorized repair service shall be tested for accuracy by the department before their return to service.

Statutory Authority

§9.1-1110 of the Code of Virginia.

Historical Notes

Former 6VAC20-190-30 derived from Virginia Register Volume 17, Issue 3, eff. November 23, 2000; amended and renumbered as 6VAC40-20-30, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; amended, Volume 24 Issue 26, eff. October 16, 2008.

Article 4
Licensing Procedures

6VAC40-20-120. Licensing procedures.

A. The department shall issue, renew, terminate and revoke licenses for individuals to perform breath alcohol tests on the basis of standards set forth in this chapter.

B. Application for an initial license to perform breath tests shall be made in writing to the department. The applicant shall have the endorsement of the appropriate supervisory law-enforcement officer or designated representative unless an exception is granted by the department.

C. The initial licenses shall be granted to individuals who demonstrate the ability to perform breath tests accurately and reliably in accordance with the methods approved by the department.

D. Only individuals successfully completing a basic course of instruction shall be deemed to have demonstrated competence to qualify for the issuance of an initial license. Further instruction may be required by the department to qualify a licensee to perform tests using additional breath test devices.

E. Licenses shall be limited in scope to those breath test devices on which the individual applying for an initial or renewal license has demonstrated competence.

F. Licenses shall state the date upon which they are to expire, which date shall, in no event, be later than 24 months after the date of issuance. Licenses shall be subject to renewal at expiration or at such time prior to expiration as is convenient for the department on demonstration by the licensee of continuing competency to perform accurate and reliable breath tests. The department may at any time examine licensees to determine such continuing competency. Licenses may be terminated or revoked by the department at any time upon its finding that the licensee no longer meets the qualifications necessary for the issuance of a license good cause shown.

G. Any individual whose license has expired may renew his license within one year after its expiration date by successfully completing a recertification class and by demonstrating his competence in the performance of breath tests. Any individual (i) who fails the recertification class or (ii) whose license has expired and who does not renew his license within one year after its expiration date may renew his license by again attending and successfully completing the basic course of instruction referred to in subsection D of this section and demonstrating competence in the performance of breath tests as otherwise required.

H. The failure of a licensee to comply with this chapter may be grounds for revocation of such individual's license.

Statutory Authority

§9.1-1110 of the Code of Virginia.

Historical Notes

Former 6VAC20-190-120 derived from Virginia Register Volume 17, Issue 3, eff. November 23, 2000; amended, Virginia Register Volume 20, Issue 4, eff. December 3, 2003; amended and renumbered as 6VAC40-20-120, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; amended, Volume 24 Issue 26, eff. October 16, 2008.

6VAC40-20-130. Certificates.

The department shall issue, terminate and revoke instructor certificates for individuals to teach breath alcohol testing on the basis of the following standards:

1. The instructor certificate shall be granted only to individuals who (i) demonstrate the ability to teach the breath test method or methods approved by the department, (ii) possess a valid breath test license, and (iii) satisfactorily complete a course for Breath Alcohol Instructors. The department may issue instructor certificates to persons who have acquired the necessary ability knowledge, skills and abilities by past experience or formal education. DFS has the authority to deny issuance of a certificate upon good cause shown.

2. Instructor certificates shall be limited in scope to the methods or breath test devices for which the individual has demonstrated competence.

3. The department may at any time examine instructors to determine continuing ability.

4. Instructor certificates shall may be terminated or revoked by the department upon its finding that the instructor no longer meets the necessary qualifications upon good cause shown.

Statutory Authority

§9.1-1110 of the Code of Virginia.

Historical Notes

Former 6VAC20-190-130 derived from Virginia Register Volume 17, Issue 3, eff. November 23, 2000; amended and renumbered as 6VAC40-20-130, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; amended, Volume 24 Issue 26, eff. October 16, 2008.

6VAC40-20-160. Checklist.

A preventive maintenance checklist, if applicable, shall be provided by the department shall be and completed at least once each month for each breath test device assigned to an agency. A copy of this preventive maintenance checklist shall be submitted to the department to be kept on file for at least three years.

Statutory Authority

§9.1-1110 of the Code of Virginia.

Historical Notes

Former 6VAC20-190-160 derived from Virginia Register Volume 17, Issue 3, eff. November 23, 2000; amended, Virginia Register Volume 20, Issue 4, eff. December 3, 2003; Errata 20:8 VA.R. 850 December 29, 2003; Volume 21, Issue 2, eff. November 3, 2004; amended and renumbered as 6VAC40-20-160, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; amended, Volume 24 Issue 26, eff. October 16, 2008.