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Lum v. City of Brewton12/2/2003
s which shall be subject to termination or revocation at the discretion of the Department of Forensic Sciences. The Department of Forensic Sciences shall approve permits required in this section only for employees of state, county, municipal, and federal law enforcement agencies and for laboratory personnel employed by the Department of Forensic Sciences."
(Emphasis added.) According to Lum, the City failed to present any evidence indicating that the Draeger device used in his case had been certified before it was put into service and recertified annually thereafter or that it had been electronically inspected every six months since it was put in service. To support his claim that annual certification and semiannual inspection are a necessary part of the statutory predicate for admission of test results from the Draeger, Lum relies on the following regulation of the Department:
"370-1-1-.02 Evidential Breath Alcohol Testing Instrument Inspections.
"....
"(2) Each Draeger Alcotest 7110 MK III[ ] shall be certified by the Department of Forensic Sciences Technical Director or his designee prior to being placed in operation. Each Draeger Alcotest 7110 MK III shall be electronically inspected at least once every six calender months by the Department of Forensic Sciences Technical Director or his designee. Each Draeger Alcotest 7110 MK III shall be recertified by the Department of Forensic Sciences Technical Director or his designee at least once a calendar year."
Ala. Admin. Code (Dep't of Forensic Sciences), Regulation 370-1-1-.02.
The City argues that certification and inspection of the Draeger device are not part of the statutory predicate pursuant to § 32-5A-194(a)(1) for admission of the test results because, it says, the annual certifications and semiannual inspections of the Draeger device are not considered part of the "methods" approved by the Department. According to the City, the "methods" referred to in § 32-5A-194(a)(1) are contained in Reg. 370-1-1-.01 of the regulations of the Department, not in Reg. 370-1-1-.02. The Department, which filed an amicus curiae brief addressing this issue, also argues that the "methods" referred to in § 32-5A-194(a)(1) are contained in Reg. 370-1-1-.01, and not in Reg. 370-1-1-.02. At the time Lum was convicted, Reg. 370-1-1-.01 provided, in part:
"370-1-1-.01 Evidential Breath Alcohol Testing.
"(1) Qualifications. Applicant must have satisfactorily completed the course in the theory and operational procedures of the breath alcohol testing instrument and be an employee for one of the agencies listed in Section 32-5A-194 Code of Alabama, 1975 as amended.
"(2) Certification Permits.
"(a) Permits to perform chemical analysis of a person's breath pursuant to the Alabama Chemical Test for Intoxication Act will be issued by the Director of the Department of Forensic Sciences and certified by the Technical Director of the Department of Forensic Sciences.
"....
"(3) Approved Evidential Breath Alcohol Testing Instrument List.
"(a) The following Evidential Breath Alcohol Testing Instruments are approved.
"1. Intoxilyzer 5000, CMI, Inc., Owensboro, KY.
"2. Alcotest 7110 MK III, Draeger Safety, Inc., Durango, CO.
"(4) Methods Approved by the Alabama Department of Forensic Sciences.
"(a) Intoxilyzer 5000. The app
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