1. (a) Frequency. An accuracy inspection test shall be conducted on Type A alcohol breath test equipment within 30 days prior to using the breath test equipment to perform an actual alcohol breath test.

2. (b) Procedures. Procedures shall be as follows:

   1. (1) An average deviation test shall be conducted to determine the accuracy of the instrument in the following manner:

      1. (i) A total of five simulator tests shall be conducted using a simulator solution which is designed to give a reading of .10%.
      2. (ii) The results of all five simulator tests shall be recorded on an appropriate test record.
      3. (iii) Test results shall be recorded to the third decimal place, if the third decimal place is available.

   2. (2) The Type A alcohol breath test equipment does not pass the accuracy inspection test and shall be removed from service if one of the following occurs:

      1. (i) In the event of a breath test device which can only be read to the second decimal place, one or more of the five tests yields a result less than .09% or greater than .10%.
      2. (ii) In the event of a breath test device which can only be read to the third decimal place, one or more of the five tests yields a result less than .090% or greater than .109% or the average deviation, derived by adding the absolute value of the differences between the results of the five tests and a constant value of .100 and dividing the total of these absolute values by 5, exceeds .005.

   3. (3) An example of an average deviation calculation for a breath testing device capable of being read to the third decimal place is as follows:

      Constant Value	Reading	Difference (absolute value)
      .100	.099	.001
      .100	.104	.004
      .100	.098	.002
      .100	.101	.001
      .100	.102	.002
      		.010 = .002
      		5

      Average deviation = .002 and .002 does not exceed .005.

   4. (4) Breath test equipment which has malfunctioned or which fails an accuracy inspection test shall be placed out of service and shall be serviced or repaired, as necessary, by the manufacturer or its authorized representative or a person who has received comparable training or instruction and shall be tested under § 77.26(b) (relating to periodic calibration of Type A breath test equipment) prior to being placed back into service.
3. (c) Certificate of accuracy. Upon satisfactory completion of the accuracy inspection procedure, the test record shall be recorded on a certificate of accuracy of a type provided or approved by the Department. The certificate of accuracy shall be signed and dated by the individual who performed the accuracy inspection test and shall be retained for a period of 3 years from the date of the accuracy inspection test. The certificate of accuracy shall be the presumptive evidence of accuracy referred to in 75 Pa.C.S. § 1547 (relating to chemical testing to determine amount of alcohol or controlled substance).

Source

The provisions of this § 77.25 adopted December 21, 1984, effective December 22, 1984, 14 Pa.B. 4599; readopted January 12, 1990, effective immediately and apply retroactively to December 22, 1989, 20 Pa.B. 211. Immediately preceding text appears at serial pages (140065) to (140067).

Notes of Decisions

Approval of Equipment

When the Intoxilyzer 500 has been approved as a testing device, and when the appellant’s only evidence that the device is not accurate was the bald, unsupported claim that it has a 50% error rate, the appellant failed to establish that the trial court erred in admitting into evidence the appellant’s blood alcohol content. Commonwealth v. Snell, 811 A.2d 581 (Pa. Super. 2002); appeal denied 820 A.2d 162 (Pa. 2003).

Malfunction

The failure of an Intoxilyzer 500 in the pretest did not constitute a malfunction, where ‘‘malfunctioning’’ means failing to perform on accuracy and calibration tests or during an actual breath test, and not otherwise; simply stated, a .090 percent BAC or above in a pretest is not a malfunction. Commonwealth v. Hoopes, 722 A.2d 172 (Pa. Super. 1998); appeal denied 737 A.2d 1224 (Pa. 1999).

Accurate, for the purposes of equipment of this type, is a relative term; equipment is accurate if the average deviation does not exceed .005. Commonwealth v. Mongiovi, 521 A.2d 429 (Pa. Super. 1987).

In order to comply with regulation regarding inspections for accuracy of breathalyzer equipment, breath test equipment must be tested within 30 days prior to use. Commonwealth v. Mongiovi, 521 A.2d 429 (Pa. Super. 1987).

Counsel may not use formula to arrive at average deviation other than that formula set forth in this chapter specifically for testing the accuracy of breath test equipment. Commonwealth v. Mongiovi, 521 A.2d 429 (Pa. Super. 1987).

A certificate showing that breath test equipment has been inspected for accuracy, and is accurate, shall be the presumptive evidence of accuracy required by 75 Pa.C.S. § 1547(c)(i), and, with the certificate of calibration, will be considered sufficient to support a reliable test result. Commonwealth v. Mongiovi, 521 A.2d 429 (Pa. Super. 1987).

The breathalyzer regulations at 67 Pa. Code § § 77.24—77.26 are reasonable, comport with State law and ensure valid test results. Baldinger v. Commonwealth, 509 A.2d 912 (Pa. Cmwlth. 1986).

Cross References

This section cited in 67 Pa. Code § 77.24 (relating to breath test procedures); and 67 Pa. Code § 77.26 (relating to periodic calibration of Type A breath test equipment).