1. (a) Frequency. Type A alcohol breath test equipment shall be calibrated annually within 1 year of using the breath test equipment to perform an actual alcohol breath test.

2. (b) Procedures for calibration testing.

   1. (1) Calibration testing a breath test device shall consist of conducting three separate series of five simulator tests. One of the series of tests shall use simulator solution designed to give a reading of .10%. One of the series of tests shall use simulator solution designed to give a reading of .05%. The last series of tests shall use simulator solution designed to give a reading above .10% which is a multiple of .05%.
   2. (2) The results of the three separate series of tests shall be recorded on an appropriate test record.
   3. (3) Test results shall be recorded to the third decimal place if the third decimal place is available.

   4. (4) The breath test equipment does not pass the calibration procedure and shall be removed from service if one of the following occur:

      1. (i) In the case of a device which can only be read to two digits, one or more of the five simulator tests in any one of the three separate series of tests yields a result which is one of the following:

         1. (A) More than .01 below the reading that the simulator solution is designed to give.
         2. (B) Greater than the reading that the simulator solution is designed to give.

      2. (ii) In the case of a device which can be read to three digits, if, in any one of the three separate series of five simulator tests one of the following occurs:

         1. (A) The average deviation derived by adding the absolute value of the differences between the results of the five tests and the constant value of the reading that the simulator solution is designed to give, and dividing the total of these absolute values by 5, exceeds .005.
         2. (B) One or more of the five tests yields a reading which is more than .010 below the reading that the simulator solution is designed to give, or which is more than .009 above the reading that the simulator solution is designed to give.

   5. (5) An example of a calibration testing procedure for a breath test device capable of being read to the third decimal place is as follows:

      	Constant value	Reading	Difference (absolute value)
      First	.10	.103	.003
      Series	.10	.104	.004
      	.10	.097	.003
      	.10	.104	.004
      	.10	.099	.001
      			.015 = .003
      			5
      Second	.05	.049	.001
      Series	.05	.054	.004
      	.05	.048	.002
      	.05	.051	.001
      	.05	.052	.002
      			.010 = .002
      			5
      Third	.15	.149	.001
      Series	.15	.151	.001
      	.15	.148	.002
      	.15	.151	.001
      	.15	.160	.010
      			.015 = .003
      			5

      First series—Average deviation = .003 and .003 does not exceed .005 Second series—Average deviation = .002 and .002 does not exceed .005 Third series—Average deviation = .003 and .003 does not exceed .005 but the fifth test of the series yields a result which is more than .009 above the constant value so the device fails the calibration testing.

3. (c) Procedures for adjustment. Breath test equipment which fails the testing under § 77.25(b) (relating to accuracy inspection tests for Type A equipment) or subsection (b) shall be placed out of service and shall be serviced, repaired and adjusted, as necessary, by the manufacturer or its authorized representative or a person who has received comparable training or instruction prior to being placed back into service. In addition, the breath test device shall be tested under subsection (b) prior to being placed back into service.
4. (d) Certificate of calibration. Upon satisfactory completion of the calibration procedure, the test record shall be recorded on a certificate of calibration of a type provided or approved by the Department. The certificate of calibration shall be signed and dated by the individual who performed the calibration procedure and shall be retained for a period of 3 years from the date of the calibration procedure.

Source

The provisions of this § 77.26 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 (140067) to (140069).

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).

A certificate of calibration, when offered into evidence with a certificate of accuracy, shall be presumptive evidence of the accuracy of breath test equipment. A reading acquired from such certified equipment must be considered a reliable test result for purposes of determining blood alcohol content, and for proving guilt beyond a reasonable doubt of a violation of law regulating driving under the influence of alcohol. Commonwealth v. Mongiovi, 521 A.2d 429 (Pa. Super. 1987).

Intoxilyzer test results were admissable even though the intoxilyzer was not calibrated before the test, since this section, requires only that the calibration be performed within 1 year following breath test. Commonwealth v. Williamson, 514 A.2d 917 (Pa. Super. 1986).

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 § 77.25 (relating to accuracy inspection tests for Type A equipment).