The GBI’s Division of Forensic Sciences has recently sent out notification requesting that the Board of Public Safety amend the GBI rules that specify which breath testing equipment is approved for use in Georgia as required by O.C.G.A. §§ 40-5-67.1 and 40-6-392. This notification starts the formal process under the state’s Administrative Procedure Act (APA), O.C.G.A. § 40-13-1, et seq., to phase out the Intoxilyzer 5000 and replace it with the Intoxilyzer 9000 beginning January 1, 2013. Both machines are manufactured by CMI, Inc., of Owensboro, KY. The specific rules being amended are GBI R. 92-3-.01, et seq. A link to the Notice of Proposed Amendments to GBI Rule 92-3, the text of the proposed Rules, and a summary will be found at the end of this article. They are also available on the GBI website at https://dofs.gbi.georgia.gov/downloads.
The Board of Public Safety is responsible for approving rules and regulations for the GBI and the Georgia State Patrol. O.C.G.A. § 35-2-1; see also State v. Holton, 173 Ga. App. 241, 242-245 (1984). Case law holds that GBI must comply with the rule making requirements of the APA when it approves breath testing equipment. Corner v. State, 223 Ga. App. 353, 354-355 (1996). The procedures for adoption or amendment of agency rules is spelled out in O.C.G.A. § 50-13-4.
As the notice indicates, interested parties may submit comments in writing to the GBI by mail or via email. The Board must conduct a public hearing and take oral comments if requested to do so by 25 or more individuals “directly affected by the proposed rule, by a governmental subdivision or by an association having not less than 25 members.” O.C.G.A. § 50-13-4(a)(2).
You are encouraged to take advantage of this opportunity to express any concerns you may have about the adoption of the new breath testing equipment, including operational issues, data reporting, source coding, instrument capabilities or procedures by submitting comments to:
3121 Panthersville Rd
Decatur, GA 30034
A public hearing on the amended rules is scheduled for November 1, 2012 beginning at 9:30 a.m., in the Annex Conference Room at GBI Headquarters, 3121 Panthersville Rd., Decatur, GA 30034.
It is anticipated that the final specifications for the new equipment will be available from the GBI by the end of October. PACGA will send notification to all prosecuting attorneys when we know they are available.
If the new Rules are approved, the Intoxilyzer 5000 will cease to be an approved breath testing device on December 31, 2015.