7.33.2.18

DENIAL OF CERTIFICATION FOR LABORATORIES, OPERATORS, KEY OPERATORS, OPERATOR INSTRUCTORS AND BREATH ALCOHOL TESTING EQUIPMENT:

1. A. Record review. All applicants whose certification has been denied, revoked or suspended may request a record review from SLD.

2. B. Procedure for requesting informal administrative review.

   (1) An applicant or certified operator, key operator or operator instructor given notice of a denial, suspension or revocation of their certification or that of their instrument may submit a written request for a record review. To be effective, the written request shall:

   (a) be made within 30 calendar days, as determined by the postmark, from the date of the notice of action issued by SLD;

   (b) be properly addressed to SLD;

   (c) state the applicant’s name, address, and telephone numbers;

   (d) state the status of the certification as denied, suspended, or revoked;

   (e) identify the instrument in question and the agency holding the instrument, if applicable; and

   (f) provide a brief narrative rebutting the circumstances of the denial, revocation or suspension.

   (2) If the applicant or operator, key operator or operator instructor wishes to submit additional documentation for consideration, such additional documentation must be included with the request for a record review.

3. C. Record review proceeding. The review proceeding is intended to be an informal non-adversarial administrative review of written documentation. It shall be conducted by an administrative review committee designated for that purpose by SLD. In cases where the administrative review committee finds the need for additional or clarifying information, the review committee shall request that the applicant supply such additional information within the time set forth in the committees’ request.

4. D. Final determination.

   (1) Content: the administrative review committee shall render, sign and enter a written decision setting forth the reasons for the decision and the evidence upon which the decision is based.

   (2) Effect: the decision of the administrative review committee is the final decision of the informal administrative review proceeding.

   (3) Notice: a copy of the decision shall be mailed by registered or certified mail to the applicant/ agency.

5. E. Judicial review. Judicial review of the administrative review committee’s final decision is permitted to the extent provided by law. The party requesting the appeal shall bear the cost of such appeal.

6. F. Request for hearing and hearing processes and procedure for laboratories.

   (1) Any laboratory seeking to contest the denial of certification, denial of recertification, revocation or suspension of certification must request a hearing in writing. The request must be:

   (a) addressed to the director of SLD;

   (b) signed by the laboratory director;

   (c) delivered by hand or mail, return receipt requested; and

   (d) received within ten business days after being served with a notice of proposed action by SLD.

   (2) SLD will follow the hearing processes and other provisions of 7.1.2.16 NMAC through 7.1.2.43 NMAC as applicable. All references to the “licensing authority” or the “department” in that rule shall be understood and interpreted as references to the department of health and the SLD for purposes of this rule and any hearing relating to the certification of a laboratory by SLD.

   History of 7.33.2 NMAC:

   Pre-NMAC History: Material in the part was derived from that previously filed with the commission of public records - state records center and archives:

   HED 81-3 (SLD), Emergency Regulations Regarding Certification of Operators for Blood-and-Breath Testing Apparatus, filed 06-30-81.

   HED 82-5 (SLD), Regulations Governing Blood and Breath Testing under the Implied Consent Act, filed 12-08-82 HED 87-5 (SLD), Regulations Governing Blood and Breath Testing under the Implied Consent Act, filed 08-25-87

   HED 94-12 (SLD), Regulations Governing Blood and Breath Testing under the New Mexico Implied Consent Act, filed 01-23-95.

   History of Repealed Material:

   7 NMAC 33.2, Blood and Breath Testing under the New Mexico Implied Consent Act (filed 10-18-96) repealed 03-14-01.

   7.33.2 NMAC, Blood and Breath Testing under the New Mexico Implied Consent Act (filed 02-21-01) repealed 04-30-2010.

   Other History:

   HED 94-12 (SLD), Regulations Governing Blood and Breath Testing under the New Mexico Implied Consent Act, (filed 01-23-95) was renumbered, reformatted, amended and replaced by 7 NMAC 33.2, Blood and Breath Testing under the New Mexico Implied Consent Act, effective 10-31-96.

   7 NMAC 33.2, Blood and Breath Testing under the New Mexico Implied Consent Act (filed 10-18-96) was replaced by 7.33.2 NMAC, Blood and Breath Testing under the New Mexico Implied Consent Act, effective 03-14-01.

   7.33.2 NMAC, Blood and Breath Testing under the New Mexico Implied Consent Act (filed 02-21-01) was replaced by 7.33.2 NMAC, Blood and Breath Testing under the New Mexico Implied Consent Act, effective 04-30-2010.

[7.33.2.18 NMAC - N, 04-30-2010]