Printable Format65-1,107. Secretary of health and environment to adopt rules and regulations relating to procedures, testing protocols, qualifications of personnel and equipment of certain laboratories; list of approved preliminary screening devices for testing of breath for law enforcement purposes. The secretary of health and environment may adopt rules and regulations establishing:
(a) The procedures, testing protocols and qualifications of authorized personnel, instruments and methods used in laboratories performing tests for the presence of controlled substances included in schedule I or II of the uniform controlled substances act or metabolites thereof;
(b) the procedures, testing protocols, qualifications of personnel and standards of performance in the testing of human breath for law enforcement purposes, including procedures for the periodic inspection of apparatus, equipment and devices, other than preliminary screening devices, approved by the secretary of health and environment for the testing of human breath for law enforcement purposes;
(c) the requirements for the training, certification and periodic testing of persons who operate apparatus, equipment or devices, other than preliminary screening devices, for the testing of human breath for law enforcement purposes;
(d) criteria for preliminary screening devices for testing of breath for law enforcement purposes, based on health and performance considerations; and
(e) a list of preliminary screening devices which are approved for testing of breath for law enforcement purposes and which law enforcement agencies may purchase and train officers to use as aids in determining:
(1) Probable cause to arrest and grounds for requiring testing pursuant to K.S.A. 8-1001, and amendments thereto, or K.S.A. 3-1008, and amendments thereto; and
(2) violations of K.S.A. 41-727, and amendments thereto.
History: L. 1947, ch. 330, § 3; L. 1973, ch. 307, § 3; L. 1974, ch. 352, § 169; L. 1986, ch. 40, § 7; L. 1988, ch. 233, § 1; L. 1990, ch. 215, § 1; L. 1994, ch. 262, § 1; L. 2001, ch. 200, § 16; L. 2006, ch. 173, § 8; L. 2022, ch. 80, § 22; L. 2022, ch. 80, § 22; July 1.
Cross References to Related Sections:
Preliminary screening tests, see 8-1012.
Attorney General's Opinions:
Laboratories performing tests for the presence of controlled substances; employer using on-site drug testing kits. 97-96.
CASE ANNOTATIONS
1. Rules of secretary applied in upholding admission of breathalyzer test results in prosecution for driving under influence; conviction affirmed. City of Shawnee v. Gruss, 2 Kan. App. 2d 131, 132, 576 P.2d 239.
2. No intent indicated requiring law enforcement officers collecting breath samples by use of crimper box to be certified. State v. Hunninghake, 238 Kan. 155, 159, 708 P.2d 529 (1985).
3. Breath test inadmissible, no evidence offered to show breath testing device evaluated and approved by KDHE. Leffel v. Kansas Dept. of Revenue, 36 Kan. App. 2d 244, 245, 248, 138 P.3d 784 (2006).
4. Mentioned; documents showing certification or calibration of breath test machine or operator do not implicate 6 th amendment confrontation clause. State v. Dukes, 38 Kan. App. 2d 958, 962, 174 P.3d 914 (2008).
5. DUI conviction reversed; a preliminary breath testing device must be approved under K.S.A. 65-1,107 before law enforcement use. State v. Pollman, 41 Kan. App. 2d 20, 204 P.3d 630 (2009).