(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
(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
(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
(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
(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
(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
(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
(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.