# COMAR Title 29 — Department of State Police

## Subtitle 05 — Crime Laboratory

### Chapter 01 — Statewide DNA Data Base System and Repository

**Authority:** Public Safety Article, §2-503, Annotated Code of Maryland

**Administrative History:** Effective date: September 10, 1996 (23:18 Md. R. 1318)

**Administrative History:** Regulation .01B amended effective December 27, 1999 (26:26 Md. R. 1961)

**Administrative History:** Regulation .01-1 adopted effective December 27, 1999 (26:26 Md. R. 1961)

**Administrative History:** Regulation .03 amended effective December 27, 1999 (26:26 Md. R. 1961)

**Administrative History:** Regulation .04 amended effective December 27, 1999 (26:26 Md. R. 1961)

**Administrative History:** Regulation .04H amended as an emergency provision effective June 7, 2007 (34:13 Md. R. 1150); emergency status expired December 4, 2007; amended permanently effective December 17, 2007 (34:25 Md. R. 2216)

**Administrative History:** Regulation .06 amended effective December 27, 1999 (26:26 Md. R. 1961)

**Administrative History:** Regulations .08—.12 amended effective December 27, 1999 (26:26 Md. R. 1961)

**Administrative History:** Chapter revised effective December 15, 2008 (35:25 Md. R. 2151)

**Administrative History:** Regulation .01B amended effective October 19, 2009 (36:21 Md. R. 1594); November 14, 2011 (38:23 Md. R. 1423)

**Administrative History:** Regulation .02A amended effective October 19, 2009 (36:21 Md. R. 1594)

**Administrative History:** Regulation .16 amended effective October 19, 2009 (36:21 Md. R. 1594)

**Administrative History:** Regulation .16C, D amended effective November 14, 2011 (38:23 Md. R. 1423)

#### Regulation .01 Definitions.

*COMAR 29.05.01.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Arraignment” means the earlier of the appearance of counsel or the scheduled or actual initial appearance of the defendant before the circuit court pursuant to Maryland Rule 4-213, even if waived by the defendant.

  (2) “Arrestee” means an individual required to provide a DNA sample, pursuant to Public Safety Article, §2-501 et seq., Annotated Code of Maryland, after being charged with:

    (a) Burglary or an attempt to commit burglary, or a crime of violence as enumerated in Criminal Law Article, §14-101(a), Annotated Code of Maryland, except for mayhem; or

    (b) Any attempt to commit the crimes referred to in §B(2)(a) of this regulation.

  (3) “Burglary” includes the crimes enumerated in Criminal Law Article, §§6-202—6-204, Annotated Code of Maryland.

  (4) Charged.

    (a) “Charged” means an individual against whom a written accusation has been made alleging that a defendant has committed an offense.

    (b) “Charged” includes a citation, an indictment, an information, and a statement of charges.

  (5) “CODIS” means the Federal Bureau of Investigation's Combined DNA Index System that allows the storage and exchange of DNA records submitted by federal, state, and local law enforcement systems.

  (6) “CODIS requirements” means the policies and procedures established by NDIS and the Federal Bureau of Investigation.

  (6-1) “Collected” means collected and submitted to a crime lab for testing.

  (7) “Crime Laboratory” or “Crime Lab” means the Department of State Police, Forensic Sciences Division.

  (8) “Crime of violence” means:

    (a) Those crimes enumerated in Criminal Law Article, §14-101, Annotated Code of Maryland, except mayhem; and

    (b) Attempts to commit the crimes referred to in §B(8)(a) of this regulation.

  (9) “Detention facility” means a State prison, county jail facility, or Department of State Police installation used for the purpose of sample collection.

  (10) “Director” means the Director of the Department of State Police Crime Laboratory, or the Director's designee.

  (11) “DNA” means deoxyribonucleic acid.

  (12) “DNA data base collection kit” or “kit” means the kit provided by the Crime Laboratory for the collection of DNA arrestee or convicted offender samples.

  (13) “DNA record” means DNA information stored in the Statewide DNA Data Base System of the Department of State Police, Crime Laboratory, or CODIS, and includes that information commonly referred to as a DNA profile.

  (14) “DNA sample” means a body fluid or tissue sample provided by an individual convicted of or charged with a qualifying crime pursuant to Public Safety Article, §2-501 et seq., Annotated Code of Maryland, or a body fluid or tissue sample submitted to the Statewide DNA Data Base System for analysis pursuant to a criminal investigation.

  (15) Expungement.

    (a) “Expungement” means the removal and destruction of the arrestee or convicted offender DNA sample and the deletion of testing results from CODIS.

    (b) “Expungement” does not include a record by the Crime Lab of information related to the taking or destruction of a sample.

  (16) “FBI Standards” means the:

    (a) Quality Assurance Standards for Forensic DNA Testing Laboratories (effective October 1, 1998); and

    (b) Quality Assurance Standards for Convicted Offender DNA Databasing Laboratories (effective April 1, 1999).

  (17) “Forensic or evidence sample” means DNA obtained from an item of evidence or a individual, including suspect samples, other than one required to be collected pursuant to Public Safety Article, §2-501 et seq., Annotated Code of Maryland.

  (18) “Immediately” means as soon as practicable and does not require any actions to be taken during weekends, holidays, or periods other than when normal State business is conducted.

  (19) “Letter” includes any writing regardless of format and includes electronic notifications and transmittals.

  (20) “Local law enforcement agency” or “local law enforcement unit” means the agency of a county or municipal corporation in the State that performs police protection functions.

  (21) “Notice” means any notification, whether verbal or in writing, sent by regular first-class mail, facsimile, or email.

  (22) “PCR” means polymerase chain reaction.

  (23) “Personal identification information” means that information pertaining to the sample donor's name, state identification number, or any other traceable number or information that is directly associated with that person.

  (24) “Placed” means entered.

  (25) “Population data base” means a collection of DNA profiles, usually grouped by race, used for statistical evaluation, research, quality control, and protocol development of forensic DNA analysis methods. Personal identification information is not associated with this data base.

  (26) “Qualifying crime” means those offenses that require collection of a DNA sample upon arrest or conviction.

  (27) “Qualifying crime upon arrest” includes:

    (a) A burglary or attempt to commit burglary, or a crime of violence as enumerated in Criminal Law Article, §14-101(a), Annotated Code of Maryland, except mayhem; or

    (b) Any attempt to commit the crimes referred to in §B(27)(a) of this regulation.

  (28) “Qualifying crime upon conviction” includes the following:

    (a) All felonies;

    (b) Fourth degree burglary; and

    (c) Breaking and entering of a motor vehicle.

  (29) “Secretary” means the Secretary of the State Police.

  (30) “State Police” means the Department of State Police.

  (31) “Statewide DNA Data Base System” means the DNA record system administered by the Department of State Police, Crime Laboratory for identification purposes.

  (32) “Statewide DNA repository” means the Department of State Police, Crime Laboratory repository of DNA samples collected under this chapter.

  (33) “Target DNA file” means a DNA profile originating from case material to be searched against the Statewide DNA Data Base System.

  (34) “Testing” means DNA typing tests that generate identification information and are obtained from a DNA sample. The term “testing” and “analysis” are, for the purposes of this chapter, interchangeable.

  (35) “Typing results” means the information generated during the forensic analysis (Restriction Fragment Length Polymorphisms (RFLP), PCR-based technologies, or current acceptable techniques for forensic analysis) of a DNA sample, sometimes referred to as a DNA profile.

#### Regulation .01-1 Incorporation by Reference.

*COMAR 29.05.01.01-1*

A. In this chapter, the following documents are incorporated by reference.

B. Documents Incorporated.

  (1) Quality Assurance Standards for Forensic DNA Testing Laboratories (October 1, 1998).

  (2) Quality Assurance Standards for Convicted Offender DNA Databasing Laboratories (April 1, 1999).

#### Regulation .02 Introduction.

*COMAR 29.05.01.02*

A. Scope.

  (1) This chapter governs only the collection, submission, receipt, identification, testing, storage, and disposal of DNA samples from individuals arrested and charged or convicted, or both, for various specified crimes and the entry of the samples into the State DNA Data Base System and CODIS pursuant to Public Safety Article, §2-501 et seq., Annotated Code of Maryland. This chapter does not govern evidentiary, suspect, and forensic samples otherwise legally obtained, whether by search warrant, court order, consent, or other method except as specifically provided in Regulation .16 of this chapter.

  (2) If an individual is suspected of committing a crime and a law enforcement agency wishes to obtain a DNA sample from the suspect to compare to evidence collected at a crime scene, and obtains court authorization to collect the DNA sample at the time of arrest, this sample is not one collected pursuant to this chapter and is not, therefore, handled in accordance with this chapter.

  (3) As noted in §A(2) of this regulation, if an individual's DNA sample is collected pursuant to a court authorization, such as a search warrant or court order, at the time of the individual's arrest, another DNA sample shall also be taken upon charging if the arrest is for a qualifying crime as set forth in this chapter. This DNA data base sample shall be handled in accordance with the terms of this chapter, including the time of taking, analyzing, and expungement, if applicable.

  (4) If an individual's DNA sample is taken pursuant to court authorization and not due to the individual's being arrested and charged for a qualifying crime under this chapter, the regulations concerning collection, analysis, use, and expungement are not applicable.

  (5) Only DNA data base samples that are required to be taken pursuant to Public Safety Article, §2-501 et seq., Annotated Code of Maryland, are subject to the terms and requirements of this chapter except as specifically provided in Regulation .06 of this chapter.

B. The Secretary, after consulting with the Director, shall establish policies and procedures for:

  (1) The collection, submission, identification, analysis, storage, and disposal of DNA samples provided by an arrestee or an individual convicted of a qualifying crime; and

  (2) Access to the dissemination of typing results and personal identification information of samples that are submitted under Regulations .11 and .12 of this chapter.

C. The Director, upon consulting with the Secretary, shall establish policies and procedures for a centrally located Statewide DNA Data Base System and Statewide DNA repository.

D. The Crime Laboratory shall:

  (1) Receive DNA samples for testing, classification, and storage;

  (2) File the DNA record of identification characteristic profiles of each DNA sample submitted to the Laboratory; and

  (3) Make information relating to DNA samples and DNA records available to other agencies and individuals as authorized in Regulations .11 and .12 of this chapter.

#### Regulation .03 System Maintenance.

*COMAR 29.05.01.03*

A. The Director shall:

  (1) Administer and manage the Statewide DNA Data Base System;

  (2) Consult with the Secretary to establish system protocols and operations;

  (3) Ensure compatibility with Federal Bureau of Investigation and CODIS requirements, including the use of:

    (a) Comparable test procedures;

    (b) Quality assurance, proficiency tests, and audits;

    (c) Laboratory equipment;

    (d) Computer software and hardware; and

  (4) Ensure the security and confidentiality of all records in the system.

B. The Director may contract with a qualified DNA laboratory that meets the guidelines established by the Director to complete DNA typing analysis. The Director may also contract with a separate qualified private contractor to obtain the DNA samples from individuals convicted of a qualifying crime. This does not preclude the use of the Department of Public Safety and Correctional Services' medical staff for the DNA collection or the hiring of additional personnel by the Department of State Police.

#### Regulation .04 Collecting Samples.

*COMAR 29.05.01.04*

A. An individual shall have a DNA sample collected if:

  (1) Charged with a crime of violence or an attempt to commit a crime of violence;

  (2) Charged with burglary or an attempt to commit burglary;

  (3) Convicted of a qualifying crime; or

  (4) Ordered by a court.

B. Samples Collected upon Charge.

  (1) A DNA sample shall be collected during booking by the sheriff's office, police department, regional jail, or any other entity specified by the Secretary that is responsible for booking upon being charged.

  (2) An arrestee sample may not be tested or placed into the Statewide DNA Data Base System before the first scheduled arraignment date.

  (3) DNA Sample Processed Before First Scheduled Arraignment Date.

    (a) An arrestee may request, by notarized written request to the Director, that the DNA sample be processed before the first scheduled arraignment date for the sole purpose of having the sample checked against a sample that:

      (i) Has been processed from the crime scene or the hospital; and

      (ii) Is related to the charges against that individual.

    (b) The Crime Lab shall process the sample before arraignment, whenever practicable, if time and resources permit.

  (4) If the collecting agency determines that a convicted offender Statewide DNA Data Base sample already exists for an arrestee, the agency is not required to obtain a new sample.

  (5) A failure to obtain a new sample from an arrestee does not prohibit the obtaining of a sample at a later date if it is determined, for any reason, that a preexisting sample is not in the Statewide DNA Data Base as long as the individual remains eligible for inclusion in the Statewide DNA Data Base System.

  (6) At the time of collection of the DNA sample, an arrestee shall be given written notice, by the collecting agency, in a manner prescribed by the Director, that the DNA record may be subject to expungement as provided by Regulation .14 of this chapter.

C. Reasonable force may be used in order to obtain a required arrestee or convicted offender DNA sample.

D. A second DNA sample shall be taken if ordered by the court for good cause shown.

E. The failure of a person, convicted of a qualifying crime and placed on probation, to provide a DNA sample within 90 days of the date of the initial request for a sample shall result in the notification to the Department of Public Safety and Correctional Service's Division of Parole and Probation that a violation of conditions of probation has occurred.

F. For an individual convicted but not sentenced to a term of imprisonment, a sample shall be collected at a facility designated by the Director.

G. The Department of Public Safety and Correctional Services shall:

  (1) By the 15th day of each month, provide the Director with a report:

    (a) Of the number and the names of the prisoners who were convicted of a qualifying crime and began their incarceration the previous month; or

    (b) Indicating that no prisoners began their incarceration the previous month;

  (2) Include on the monthly report of those prisoners convicted of a qualifying crime of violence, the prisoner's:

    (a) Name;

    (b) Race;

    (c) Sex;

    (d) Date of birth;

    (e) State identification (SID);

    (f) Specific qualifying crime;

    (g) Location of prisoner;

    (h) Anticipated release date; and

  (3) Identify a Department of Public Safety and Correctional Services employee who, on an ongoing basis, will assist in the DNA sample collection process by coordinating with the appropriate prison official the place, time, and date when the samples will be collected.

H. A county jail administration shall:

  (1) By the 15th day of each month, provide the Director with a report:

    (a) Of the number and the names of the prisoners who were convicted of a qualifying crime of violence and began their incarceration the previous month; or

    (b) Indicating that no prisoners began their incarceration the previous month;

  (2) Include on the monthly report of those prisoners convicted of a qualifying crime of violence, the prisoner's:

    (a) Name;

    (b) Race;

    (c) Sex;

    (d) Date of birth;

    (e) State identification (SID);

    (f) Specific qualifying crime;

    (g) Location of prisoner;

    (h) Anticipated release date; and

  (3) Identify a county jail employee who, on an ongoing basis, will assist in the arrestee or convicted offender DNA sample collection process by coordinating with the appropriate prison official the place, time, and date when the samples will be collected.

I. The arrestee or convicted offender DNA samples submitted for analysis shall be collected by an individual who is:

  (1) Designated by the Director; and

  (2) Trained in the collection procedures that the Crime Laboratory uses.

J. An arrestee or convicted offender DNA sample shall be collected according to the instructions specified by the Director that are included in a DNA data base sample collection kit, approved and provided by the Director.

K. The individual collecting a sample shall verify the identity of the individual from whom a sample is taken by name and, if applicable, State identification (SID) number.

L. If the DNA arrestee sample is not collected at the time of electronic capture, such as LIVE SCAN or electronic booking facility or if an inked ten print card is used, then using normal fingerprinting procedures, the individual from whom a sample is taken shall place both inked index fingers where indicated on the DNA data base information card contained in the collection kit. These prints shall be used by the laboratory to check the individual's identity. If the subject is missing an index finger, this fact shall be indicated in the space for recording the fingerprint and the next available finger should be used with documentation as to which finger was used.

M. Immediately after a sample is obtained it shall be placed in the kit provided, sealed, and within 24 hours, transported or mailed to the Crime Laboratory.

N. The chain of custody portion of the DNA data base information card in the sample kit shall include the date and time a sample was collected and the signature of the individual who collected and sealed the kit.

#### Regulation .05 Transporting Samples.

*COMAR 29.05.01.05*

Samples shall be transported from a prison, detention facility, or other authorized location to the Crime Laboratory by:

A. Contract courier;

B. First class U.S. mail service; or

C. State Police personnel.

#### Regulation .06 Using Samples.

*COMAR 29.05.01.06*

A. Only DNA records that directly relate to the forensic identification of individuals shall be collected and stored.

B. The Statewide DNA Data Base System may not be used for the purpose of identification of an offender in connection with a crime for which the offender may be a biological relative of the individual from whom the DNA arrestee or convicted offender sample was acquired.

C. To the extent fiscal resources are available, arrestee or convicted offender DNA samples shall be tested, and the records only used:

  (1) To analyze and type genetic markers contained in or derived from DNA samples;

  (2) To further a criminal offense investigation;

  (3) To assist in the identification of human remains;

  (4) To assist in the identification of missing persons; and

  (5) For research and administrative purposes, including:

    (a) Development of a population data base after personal identifying information is removed;

    (b) Support of identification research and protocol development of forensic DNA analysis methods; and

    (c) Quality control purposes.

#### Regulation .07 Storing Records.

*COMAR 29.05.01.07*

A. The records shall be stored in a secured computer system and secured laboratory files according to State Police standard operating procedures and CODIS requirements.

B. Records and specimen information shall be identified by:

  (1) A unique laboratory tracking number;

  (2) Name of the donor;

  (3) State identification number;

  (4) Date of birth;

  (5) Name and place of collection;

  (6) Collector's name;

  (7) Date sample was taken;

  (8) Type of offense;

  (9) Race; and

  (10) Sex.

C. Verification of identity shall be conducted by the Latent Print Unit on the fingerprints found on the DNA data base information/chain of custody card.

#### Regulation .08 Storing Samples.

*COMAR 29.05.01.08*

A. Blood, body fluid, or tissue samples shall be given a unique laboratory tracking number.

B. Samples shall be stored in a secured area according to State Police standard operating procedures.

C. Samples shall only be accessible to designated personnel.

D. The DNA data base information/chain of custody cards shall be maintained in secured laboratory files.

E. When preserving a sample for storage, it may be condensed or dried in accordance with accepted standard practices for the type of sample being stored. Excess sample matter and its container may be discarded.

#### Regulation .09 Storing Typing Results.

*COMAR 29.05.01.09*

A. Blood, body fluid, or tissue samples shall be analyzed according to State Police protocol and standard operating procedures by personnel qualified under the FBI Standards and CODIS requirements.

B. The analytically derived typing results shall be filed according to the unique laboratory tracking number in a secured computer and laboratory files. Secured results shall be entered into the system upon review by a second analyst. These files are accessible to qualified personnel only.

#### Regulation .10 Quality Assurance.

*COMAR 29.05.01.10*

A. Any procedure adopted by the Director shall include quality assurance guidelines to ensure that DNA identification records meet standards and audit requirements for laboratories that submit DNA records for inclusion in the Statewide DNA Data Base System and CODIS.

B. The Crime Laboratory and each analyst performing DNA analyses at the Crime Laboratory shall undergo, twice yearly, external proficiency testing by a DNA proficiency testing program that meets the standards as follows:

  (1) Section 1003 of the Federal DNA Identification Act of 1994; or

  (2) FBI Standards.

#### Regulation .11 Access to DNA Data.

*COMAR 29.05.01.11*

A. A request by letter for obtaining information from the Statewide DNA Data Base System and CODIS shall be submitted to the Director, from the requesting agency's department head or designee.

B. The letter from the requesting agency shall contain:

  (1) The reason for conducting the search;

  (2) The type of criminal offense;

  (3) The intentions of prosecution;

  (4) The authority behind requesting the search;

  (5) The details concerning the source of specimens within the “Target DNA” files; and

  (6) A laboratory point of contact, telephone number, and email address.

C. An electronic request for obtaining information from the Statewide DNA Data Base System and CODIS may initiate a search, but information may not be released without a formal request.

D. The Director, or designee, shall verify the identity of the agency or person submitting a request for DNA information by:

  (1) A confirmation telephone call or letter between the agencies; and

  (2) Requiring a person in authority at the requesting laboratory to sign and return the agreement of interlaboratory search form.

E. Before announcing a match with DNA information received from the Statewide DNA Data Base System, the requesting laboratory shall, if requested:

  (1) Submit to the Director or designee:

    (a) Duplicates of the final test results;

    (b) The laboratory's quality assurance standards; and

    (c) The allele designations; and

  (2) Conduct a telephone conference call or an electronic exchange of information between laboratory personnel.

F. After verification by the Director or designee that a match has been made in the Statewide DNA Data Base System and the request complies with the purposes in Regulation .06C of this chapter, the typing results and personal identification information of the DNA profile of an individual in the Statewide DNA Data Base System may be made available, by letter, to the following agencies or persons:

  (1) Federal, state, and local law enforcement agencies;

  (2) Crime laboratories that serve federal, state, and local law enforcement agencies that have been approved by the Director;

  (3) A State's attorney's office or other prosecutorial office; and

  (4) A person participating in a judicial proceeding in which the data base information may be offered as evidence.

G. The typing results and personal identification information of the DNA profile of an individual in the Statewide DNA Data Base System shall be made available to a defendant or a defendant's counsel on written order of the court in which the case is pending.

H. A search of the data base shall be conducted to determine the existence of a match to DNA obtained from crime scene evidence taken in relation to the crime for which a defendant is charged if, upon the request of that defendant, a written court order commands the data base search.

I. This chapter does not limit a court from ordering any discovery of a DNA record or other related material in a criminal case.

J. The Director shall maintain a permanent file of all requests received for DNA information and the disposition of each request.

#### Regulation .12 Match—Evidence and Data Base.

*COMAR 29.05.01.12*

A match obtained between an evidence sample and a data base entry may only be used as probable cause to obtain a new DNA sample from the subject and is not admissible at trial unless confirmed by additional testing.

#### Regulation .13 Population Data Base.

*COMAR 29.05.01.13*

A. The Director shall create a population data base comprised of DNA samples obtained from the general population.

B. All personal identifiers shall be removed before the information is entered into the population data base.

C. The population data base information may be shared or disseminated with the following:

  (1) Federal, state, or local law enforcement agencies;

  (2) Crime laboratories that serve federal, state, and local law enforcement agencies that have been approved by the Director;

  (3) A State's attorney's office; or

  (4) A third party that the Director deems necessary to assist the Crime Laboratory with statistical analysis of the population data base.

D. The population data base may be made available to and searched by any agency participating in the CODIS system.

#### Regulation .14 Expunging DNA Records.

*COMAR 29.05.01.14*

A. An individual whose DNA record or profile has been included in the Statewide DNA Data Base System and whose DNA sample is stored in the Statewide DNA repository may request that information be expunged on the grounds that the conviction which resulted in its inclusion meets the expungement criteria specified in Criminal Procedure Article, §10-105, Annotated Code of Maryland.

B. Upon receipt of an order of expungement, the Director shall purge a DNA record, DNA sample, or other identifiable information covered by the order from the Statewide DNA Data Base System and the Statewide DNA repository.

C. A DNA sample collected from an arrestee shall be immediately destroyed if all qualifying criminal charges are determined to be unsupported by probable cause. Notice shall be provided to the defendant and counsel, if any, of the destruction.

D. A DNA sample and DNA record collected from an arrestee shall be automatically expunged from any data base into which it has been entered if:

  (1) The criminal action against the individual does not result in a conviction of the individual and there is no further trial, disposition, appeal, or other proceeding in the criminal action;

  (2) The conviction is finally reversed or vacated and no new trial is permitted; or

  (3) The individual is granted an unconditional pardon.

E. An expungement pursuant to §D of this regulation shall occur within 60 business days of the act requiring expungement.

F. Written notice shall be provided to the defendant and counsel, if any, of the expungement.

G. An arrestee record or arrestee sample that qualifies for expungement and is matched concurrent with or subsequent to the date that the arrestee sample qualifies for expungement:

  (1) May not be used for determining probable cause regardless of whether it is expunged in a timely manner; and

  (2) Is not admissible in any proceeding for any purpose.

H. An arrestee DNA sample and DNA record may not be automatically expunged if:

  (1) The arrestee's qualifying criminal action is put on the stet docket; or

  (2) The arrestee receives probation before judgment on any charge that qualified the arrestee for collection.

I. If an arrestee is charged with multiple qualifying offenses, the DNA arrestee sample and DNA record are not subject to automatic expungement unless all applicable charges qualify for expungement as set forth in §D of this regulation.

J. If an individual whose DNA sample is in the Statewide DNA Data Base System for a reason other than as a sample collected from an arrestee, any additional sample shall remain in the data base and is not subject to automatic expungement.

K. Records and samples not previously expunged will be expunged 100 years from the date submitted.

L. The Director shall maintain a permanent file of all requests to expunge DNA data base records, and the disposition of those requests.

#### Regulation .15 Unauthorized Use.

*COMAR 29.05.01.15*

A. An individual who, by virtue of employment or official position, has possession of or access to individual identifiable DNA information contained in the Statewide DNA Data Base System or Statewide DNA repository and who willfully discloses that information in any manner to a person or agency not entitled to receive that information is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $5,000 or imprisonment not exceeding 5 years, or both.

B. A person who, without authorization, willfully obtains individually identifiable DNA information from the Statewide DNA Data Base System or repository is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $5,000 or imprisonment not exceeding 5 years, or both.

C. An individual who willfully tests an arrestee or convicted offender DNA sample for information that does not relate to the identification of individuals as specified by Public Safety Article, §2-501 et seq., Annotated Code of Maryland, is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $5,000 or imprisonment not exceeding 5 years, or both.

D. An individual who willfully fails to destroy an arrestee or convicted offender DNA sample under the following circumstances is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 1 year, or both:

  (1) When notification has been sent stating that the DNA sample obtained pursuant to Public Safety Article, §2-501 et seq., Annotated Code of Maryland, has been destroyed; or

  (2) Destruction has been court ordered.

#### Regulation .16 Reporting Requirements.

*COMAR 29.05.01.16*

A. Not later than April 1, 2010, and annually thereafter, the Department of State Police shall compile an annual report to the Governor and to the General Assembly. The annual report or a hyperlink to it shall be posted on the website of the Department of State Police not later than April 1 of each year.

B. Content of the Annual Report.

  (1) The annual report shall include, for the preceding calendar year, total expenses that the Crime Laboratory incurred to operate the Statewide DNA Data Base System including:

    (a) Full-time, part-time, and contractual salary and fringe benefit costs for scientists and support personnel assigned to the State Police Crime Laboratory for DNA data base purposes;

    (b) DNA collection kit costs, including costs required to transport kits from collection sites to the Crime Lab;

    (c) DNA data base operational costs, including new hardware, software, and maintenance; and

    (d) DNA testing and analysis costs, including in-house equipment purchased and outsource testing and analysis costs.

  (2) Funds Provided by the State. Not later than January 31, 2010, and annually thereafter, the Governor’s Office of Crime Prevention, Youth, and Victim Services shall report to the Department of State Police the total grant amount, by municipality, awarded for the preceding calendar year by the Governor’s Office of Crime Prevention, Youth, and Victim Services to any municipal crime laboratory, not including grants to the Crime Laboratory.

  (3) Individual Data and Analysis. The Department of State Police shall include in the annual report, for the preceding calendar year, the racial demographics of all individuals who have been charged with qualifying crimes upon arrest in the following categories:

    (a) Asian;

    (b) African-American;

    (c) White;

    (d) Hispanic; or

    (e) Other.

  (4) Case-Specific Data Collection and Analysis. Not later than January 31, 2010, and annually thereafter, the Governor’s Office of Crime Prevention, Youth, and Victim Services shall report to the Department of State Police the following data, for the preceding calendar year, for inclusion in the annual report:

    (a) The number of convicted offender or arrestee DNA matches in a calendar year;

    (b) The number of matches that resulted in the investigation of the individual identified in the match;

    (c) The number of matches resulting in formal charges;

    (d) The number of matches resulting in convictions;

    (e) The number of convicted individuals exonerated by DNA matches in a calendar year;

    (f) The number of matches resulting in convictions of individuals who were not already incarcerated; and

    (g) For convictions where a match occurred, that individual's prior offenses.

C. Requirements of Local Law Enforcement Agencies. On or before January 31, 2010, and annually thereafter, local law enforcement shall report the information necessary for the Crime Laboratory to comply with the reporting requirements of this regulation.

D. Additional Reporting by Local Law Enforcement Agencies and the Department of State Police to the Office of Legislative Audits, in Coordination with the Governor’s Office of Crime Prevention, Youth, and Victim Services.

  (1) For the purposes of this section, crime scene DNA evidence is a forensic or evidence sample as defined in COMAR 29.05.01.01B(17), including samples submitted for biological screening or serology testing .

  (2) Not later than January 31, 2010, and by April 1 of every even-numbered year thereafter, the following shall be reported for the preceding calendar year to the Office of Legislative Audits, in coordination with the Governor’s Office of Crime Prevention, Youth, and Victim Services, by each local law enforcement agency and the Department of State Police:

    (a) The categories of crimes for which crime scene DNA evidence is routinely collected;

    (b) The number of cases in which crime scene DNA evidence samples were collected during the preceding year for each category of crime reported pursuant to §D(2)(a) of this regulation;

    (c) The average time between crime scene DNA evidence collection, as defined by COMAR 29.05.01.01B(6-1), and analysis.

    (d) The number of cases in which crime scene DNA evidence samples were collected, but were still pending analysis by the end of the reporting period; and

    (e) The number of crime scene DNA evidence samples submitted and qualified for inclusion into the Statewide DNA Data Base during the preceding year.

  (3) The schedule for annual reporting shall be as follows:

    (a) Not later than January 31, 2010, and by January 31 of every even-numbered year thereafter, local law enforcement agencies shall report to the Governor’s Office of Crime Prevention, Youth, and Victim Services; and

    (b) Not later than February 28, 2010, and by April 1 of every even-numbered year thereafter, the Governor’s Office of Crime Prevention, Youth, and Victim Services shall report to the Office of Legislative Audits.

  (4) The data reported by each local law enforcement agency under this regulation shall be transmitted to the Office of Legislative Audits by the Governor’s Office of Crime Prevention, Youth, and Victim Services as part of the reporting process.

E. Additional Reporting by the Maryland Department of Health to the Office of Legislative Audits. Not later than April 1, 2010, and by April 1 of every even-numbered year thereafter, the Maryland Department of Health shall report to the Office of Legislative Audits, in coordination with the Governor’s Office of Crime Prevention, Youth, and Victim Services, the number of hospital forensic examinations reimbursed by the Department for each county and the City of Baltimore for the preceding calendar year.

F. The Office of Legislative Audits shall compile and evaluate the information provided to it in order to submit a summary report to the Governor and to the General Assembly in accordance with State Government Article, §2-1246, Annotated Code of Maryland.

G. Noncompliance with Request for Information.

  (1) Local law enforcement agencies, the Office of the Public Defender, and the Departments of Health  and Public Safety and Correctional Services shall cooperate with information requests from the Governor’s Office of Crime Prevention, Youth, and Victim Services in its efforts to seek any information required for the purposes of the reports required by this regulation.

  (2) Failure to comply with information requests from the Governor’s Office of Crime Prevention, Youth, and Victim Services may result in ineligiblity for or the withholding of State grant funding.

### Chapter 02 — Ballistic Fingerprinting

**Authority:** Public Safety Article, §§5-105 and 5-131, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.08 adopted as an emergency provision effective October 1, 2000 (27:20 Md. R. 1836); emergency status expired March 29, 2001; adopted permanently effective May 28, 2001 (28:10 Md. R. 951)

**Administrative History:** Regulation .01B amended effective November 30, 2009 (36:24 Md. R. 1860)

**Administrative History:** Regulation .02A, C amended effective November 30, 2009 (36:24 Md. R. 1860)

**Administrative History:** Regulation .03C amended effective November 30, 2009 (36:24 Md. R. 1860)

**Administrative History:** Regulation .05A amended effective November 30, 2009 (36:24 Md. R. 1860)

**Administrative History:** Regulation .06B amended effective November 30, 2009 (36:24 Md. R. 1860)

**Administrative History:** Regulation .07 amended effective November 30, 2009 (36:24 Md. R. 1860)

**Administrative History:** Regulation .08 amended effective November 30, 2009 (36:24 Md. R. 1860)

#### Regulation .01 Definitions.

*COMAR 29.05.02.01*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Crime Laboratory” means the Department of State Police Forensic Sciences Division.

  (2) “Director” means the Director of the Department of State Police Forensic Sciences Division or the Director's designee.

  (3) “Handgun” has the meaning stated in Public Safety Article, §5-101(n), Annotated Code of Maryland.

  (4) “Manufacturer” has the meaning stated in Public Safety Article, §5-131(a)(2), Annotated Code of Maryland.

  (5) “NIBIN” means National Integrated Ballistics Information Network.

  (6) “Profile” means to electronically store remarkable characteristics of a shell casing, such as caliber, manufacturer of handgun from which it was test fired, and rifling characteristics.

  (7) “Projectile” has the meaning stated in Public Safety Article, §5-131(a)(3), Annotated Code of Maryland.

  (8) “Rifling characteristics” means the number of lands and grooves in the barrel of a handgun, including right or left twist.

  (9) “Sealed container” means a paper coin envelope, Kraft #5, measuring 2-7/8 x 5-1/4 inches or equivalent and held closed by tape across the opening.

  (10) “Secretary” has the meaning stated in Public Safety Article, §5-101(s), Annotated Code of Maryland.

  (11) “Shell casing” has the meaning stated in Public Safety Article, §5-131(a)(4), Annotated Code of Maryland.

  (12) “Statewide Shell Casing Data Base” means a specific data base for the purpose of electronically capturing and storing profile information generated from shell casings described in Public Safety Article §§5-105 and 5-131, Annotated Code of Maryland.

  (13) “Statewide Shell Casing Repository” means a secure storage area within the Department of State Police Forensic Sciences Division for the retention of shell casings as required by Public Safety Article, §§5-105 and 5-131, Annotated Code of Maryland.

#### Regulation .02 Introduction.

*COMAR 29.05.02.02*

A. The Secretary, after consulting with the Director, shall establish policies and procedures for the:

  (1) Collection, submission, identification, acquisition of profile, storage, and disposal of shell casings provided by dealers from all new handguns sold in the State; and

  (2) Access to the Statewide Shell Casing Data Base or dissemination of search results.

B. The Director, upon consulting with the Secretary, shall establish policies and procedures for a centrally located Statewide Shell Casing Data Base System and Statewide Shell Casing Repository.

C. The Crime Laboratory shall:

  (1) Receive shell casings for acquisition of profile, classification, and storage;

  (2) File each shell casing profile submitted to the laboratory; and

  (3) Make information relating to shell casing samples and shell casing records available to other law enforcement agencies as authorized in this chapter.

#### Regulation .03 System Maintenance.

*COMAR 29.05.02.03*

The Director shall:

A. Administer and manage the Statewide Shell Casing Data Base System;

B. Consult with the Secretary to establish system protocols and operations;

C. Ensure compatibility with the Bureau of Alcohol, Tobacco, Firearms and Explosives' (BATFE) NIBIN system, where feasible, when the system becomes available; and

D. Ensure the security of the shell casings and records in the Statewide Data Base.

#### Regulation .04 Storing Shell Casings.

*COMAR 29.05.02.04*

A. Each shell casing shall be given a unique laboratory tracking number.

B. Shell casings shall be stored in a secure manner after processing according to Crime Laboratory standard operating procedures.

C. Shell casings shall only be accessible to designated personnel.

#### Regulation .05 Data Entry.

*COMAR 29.05.02.05*

A. Upon receipt of the shell casings and required information, the Crime Laboratory shall enter the profiling information of each shell casing, into all pertinent data bases for the purpose of creating a searchable record.

B. The pertinent data base shall be searchable for comparison purposes to shell casings from crime scenes for the purpose of identifying the source of these casings.

#### Regulation .06 Storing Records.

*COMAR 29.05.02.06*

A. The records shall be stored in a secured computer system and secured laboratory files according to Crime Laboratory standard operating procedures.

B. Records and specimen information shall be identified by:

  (1) A unique laboratory tracking number;

  (2) Name of the dealer;

  (3) Manufacturer;

  (4) Model name or number, or both;

  (5) Serial number;

  (6) Date of test firing;

  (7) Name of the technician attesting to the authenticity of the shell casing;

  (8) Caliber;

  (9) Rifling characteristics; and

  (10) Application numbers.

#### Regulation .07 Access to Shell Casing Profile Information.

*COMAR 29.05.02.07*

A. A request to obtain information from the Statewide Shell Casing Data Base System shall be submitted to the Director or designee, in writing, by the requesting law enforcement agency on that agency's letterhead or form MSP 67.

B. The letter from the requesting agency shall contain:

  (1) The reason for conducting the search;

  (2) The type of criminal offense;

  (3) The intentions of prosecution;

  (4) The authority to request the search;

  (5) The details concerning the source of specimens within the Crime Scene Shell Casing files; and

  (6) A laboratory point of contact or telephone number of the investigator, or both.

C. A telephone request for obtaining information from the Statewide Shell Casing Data Base and Repository may initiate a search, but information may not be released without a written request.

D. This regulation does not preclude the establishment of electronic network connections between the Crime Laboratory's Statewide Shell Casing Data Base and local or federal law enforcement agency crime laboratories when that technology becomes available for this purpose.

#### Regulation .08 Expunging Shell Casing Profile Information.

*COMAR 29.05.02.08*

A. An individual handgun owner whose shell casing record has been included in the Statewide Shell Casing Data Base and Repository may request by court order that this information be expunged on the grounds that the inclusion was in error.

B. Upon receipt of a court order of expungement, the Director shall purge a shell casing profile, shell casing, or other identifiable information covered by the order from the Statewide Shell Casing Data Base System and Statewide Shell Casing Repository.

C. When proof of the destruction of the weapon is received by the Crime Laboratory, profiles and shell casings may be expunged at the discretion of the Director.

D. Records and samples not previously expunged will be expunged 100 years from the year submitted.

### Chapter 03 — Testing Blood and Breath for Alcohol

**Authority:** Courts and Judicial Proceedings Article, §§10-304 and 10-306; Health-General Article, §17-214(g); Public Safety Article, §2-205; Transportation Article, §2-205; Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.09 adopted as an emergency provision effective February 20, 2023 (50:7 Md. R. 297); expired effective July 21, 2023

**Administrative History:** New Regulations .01 — .09 adopted effective November 25, 2024 (51:23 Md. R. 1038)

#### Regulation .01 Scope.

*COMAR 29.05.03.01*

This chapter establishes training and certification criteria of personnel performing tests of breath and blood for the purpose of determining the alcohol content of drivers suspected of driving while impaired or under the influence of alcohol and approval and certification criteria for equipment used in conducting these tests.

#### Regulation .02 Definitions.

*COMAR 29.05.03.02*

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

  (1) “Agency” means any law enforcement agency approved to test breath or blood for alcohol content.

  (2) “Alcohol” means ethyl alcohol (ethanol).

  (3) “Alcohol calibration solution” means a water solution containing a range of certified, specific concentrations of ethanol from 0.02 to 0.500 gram/deciliter for the purpose of ethanol quantitation.

  (4) “Alcohol control solution” means a water solution containing a certified, specific concentration of ethanol.

  (5) “Alcohol gas standard” means a container of compressed gas containing a specific concentration of alcohol.

  (6) “Alcohol reference solution” means a water solution containing a specific concentration of alcohol.

  (7) “Breath sample” means the amount of breath delivered by the individual being tested that is an adequate volume to be analyzed by the breath testing instrument.

  (8) “CTAU” means the Chemical Test for Alcohol Unit within the Department of Maryland State Police.

  (9) “CTAU supervisor” means the individual designated by the Commander or Director of CTAU and approved by the Toxicologist to supervise the CTAU.

  (10) “Preliminary breath testing (PBT) device” means a portable, roadside screening device approved by the Toxicologist, pursuant to Transportation Article, §16-205.2, Annotated Code of Maryland, for use on individuals stopped for suspicion of driving while impaired or under the influence of alcohol.

  (11) “Qualified medical person” means an individual permitted by any state to withdraw blood from humans.

  (12) “Qualified person” has the meaning stated in Courts and Judicial Proceedings Article, §10-304, Annotated Code of Maryland.

  (13) “Representative of the Toxicologist” means any employee supervised by the Toxicologist or an employee of the Department of State Police designated by the Toxicologist to act as the authorized representative of the Toxicologist.

  (14) “Toxicologist” means the Chief Toxicologist or State Toxicologist in the Department of State Police Forensic Sciences Division.

  (15) “Validation test” means a test of specific alcohol concentration used to verify the calibration of a breath testing instrument.

#### Regulation .03 Alcohol Tests — General.

*COMAR 29.05.03.03*

A. Alcohol Concentration of Breath. The alcohol concentration of breath shall be reported as grams of alcohol per 210 liters of breath (gram/210 liters).

B. Alcohol Concentration of Blood. The alcohol concentration of blood shall be reported as grams of alcohol per 100 milliliters of blood (gram/100 milliliters).

C. Uncertainty.

  (1) For breath tests for alcohol content, the accepted scientific uncertainty in measurement is plus or minus 0.005 gram/210 liters or 10 percent of the average of measurements, whichever is greater.

  (2) For blood tests for alcohol content, the accepted scientific uncertainty in measurement is plus or minus 0.005 gram/100 milliliters or 10 percent of the average of measurements, whichever is greater.

#### Regulation .04 Preliminary Tests of Breath for Alcohol.

*COMAR 29.05.03.04*

A. PBT Devices.

  (1) The Toxicologist shall:

    (a) Approve the make and model of PBT devices used in the State; and

    (b) Maintain a list of approved make and model PBT devices.

  (2) At the time of approval by the Toxicologist, the make and model of the PBT device shall be on the most recently updated Conforming Products List of Evidential Breath Alcohol Measurement Devices published in the Federal Register by the National Highway Traffic Safety Administration of the Department of Transportation.

  (3) Calibration Check.

    (a) The calibration of a PBT device shall be checked by a PBT device operator, trained in accordance with §B(1) of this regulation, once a month by using an approved alcohol reference solution or alcohol gas standard.

    (b) The results of the calibration check shall be within plus or minus 10 percent, inclusive, of the alcohol concentration of the alcohol reference solution or alcohol gas standard.

    (c) A PBT device that does not achieve the result specified in §A(3)(b) of this regulation shall be withdrawn from use until it has been recalibrated.

B. Training Programs.

  (1) PBT Device Operator Training Program.

    (a) The Toxicologist shall approve a PBT device operator training program.

    (b) CTAU shall be notified in advance of all PBT device operator training classes.

    (c) A preliminary breath test of an individual suspected of being impaired or driving under the influence of alcohol or drugs shall be conducted only by a law enforcement officer who has completed and passed this training.

    (d) A written exam consisting of at least 25 questions shall be given at the conclusion of the program.

    (e) The cumulative passing score shall be 70 percent or above.

    (f) A roster of students successfully completing the course shall be forwarded to the CTAU on completion of the program.

  (2) PBT Device Instructor Training Program.

    (a) All PBT device operator classes shall be taught by individuals who have successfully completed a PBT device instructor training program from CTAU.

    (b) CTAU shall provide instructor training for all agencies.

    (c) Any requests for PBT Device Instructor Training shall be made to the CTAU Supervisor.

    (d) The PBT device instructor training program shall:

      (i) Include at least 16 hours of instruction; and

      (ii) Be approved by the Toxicologist.

  (3) CTAU shall issue a certificate after the successful completion of either program outlined in §B(1) or (2) of this regulation.

#### Regulation .05 Evidentiary Tests of Breath for Alcohol: Testing Agencies and Training Programs.

*COMAR 29.05.03.05*

A. Testing Agencies.

  (1) An agency desiring approval to conduct evidentiary breath tests shall make a written request to the CTAU Supervisor.

  (2) An agency requesting approval to conduct breath tests shall:

    (a) Offer 24-hour law enforcement service;

    (b) Provide an environmentally controlled area and a phone line exclusively for the breath testing instrument;

    (c) Provide expendable supplies needed for personnel to operate the equipment; and

    (d) Have a minimum of 20 full-time sworn law enforcement officers.

  (3) An agency shall have a breath test supervisor who shall administer and coordinate all alcohol testing related activities with CTAU.

  (4) The breath test supervisor shall be a breath test operator.

  (5) An agency’s approval to conduct breath testing may be withdrawn by the Toxicologist or their representative based on:

    (a) A substantial failure to comply with this chapter; or

    (b) Inadequate State resources.

B. Training Programs.

  (1) Basic Breath Test Operator Certification Course.

    (a) All basic breath test operator courses shall be:

      (i) Approved by the Toxicologist; and

      (ii) Taught by approved breath test instructors.

    (b) The course shall include a minimum of 35 hours of lecture or laboratory instruction covering:

      (i) A study of the mathematics of the metric system;

      (ii) A study of the properties, human physiology, and pharmacology of alcohol;

      (iii) A study of the theory, operating principles, and maintenance requirements of the breath test instruments; and

      (iv) A review of relevant Maryland statutes, regulations, and cases affecting enforcement and testing of an individual suspected of driving while impaired or under the influence of alcohol.

    (c) A written examination consisting of at least 50 questions shall be given at the conclusion of the course.

    (d) The cumulative passing score on the written examination shall be 90 percent or above.

    (e) The individual shall demonstrate to the instructor satisfactory ability to use the instrument.

  (2) Breath Test Operator Certification Renewal Course.

    (a) A breath test operator certification renewal course shall be:

      (i) Approved by the Toxicologist; and

      (ii) Taught by approved breath test instructors.

    (b) The course shall be comprised of a minimum of 6 hours of instruction, including a review of:

      (i) Breath testing theory;

      (ii) Methods and procedures; and

      (iii) Current and contemporary issues.

    (c) A written examination consisting of at least 25 questions shall be given at the conclusion of the course.

    (d) The passing score on the written examination shall be 80 percent or above.

  (3) Breath Test Maintenance Technician Course.

    (a) The breath test maintenance technician course shall be approved by the Toxicologist.

    (b) This course shall include a minimum of 70 hours of training, covering:

      (i) A review of breath testing theory, methods, and developments;

      (ii) Operation, takedown, and maintenance of instruments;

      (iii) Gas cylinder replacement; and

      (iv) Simulator takedown, maintenance, and solution changing.

    (c) A written or oral exam shall be administered by the CTAU Supervisor before certification.

  (4) CTAU shall issue a certificate after the successful completion of any course outlined in §B(1) — (3) of this regulation.

#### Regulation .06 Evidentiary Tests of Breath for Alcohol: Personnel — Training.

*COMAR 29.05.03.06*

A. Breath Test Operator.

  (1) Initial Certification as a Qualified Person.

    (a) To become a qualified breath test operator, a qualified person shall be:

      (i) A full-time law enforcement officer of an agency approved to conduct breath tests;

      (ii) A full-time laboratory technician of an agency approved to conduct breath tests; or

      (iii) Any individual designated by the Toxicologist.

    (b) CTAU shall issue an initial certificate after the successful completion of a basic breath test operator course as described in Regulation .05B(1) of this chapter.

    (c) An initial certification shall be valid for a period of 15 months.

  (2) Renewal of Certification.

    (a) Before expiration of the initial certification or each subsequent renewal certification period, a breath test operator shall:

      (i) Exhibit competence in the performance of all duties as a breath test operator as described in Regulation .07A(1) of this chapter; and

      (ii) Successfully complete a breath test operator certification renewal course as outlined in Regulation .05B(2) of this chapter.

    (b) CTAU shall issue a renewal certificate after the breath test operator complies with §A(2)(a) of this regulation.

    (c) A renewal certificate shall extend certification for an additional period of 13 months.

  (3) Reinstatement of Expired Certification.

    (a) If the breath test operator's certification expires and not more than 90 days have elapsed since the time of expiration, the CTAU supervisor may reinstate the operator.

    (b) If more than 90 days but less than 3 years have elapsed, the CTAU supervisor:

      (i) Shall confer with the Toxicologist or their representative about reinstatement; and

      (ii) May require a demonstration of proficiency before reinstatement of the expired certification.

    (c) A breath test operator who applies for reinstatement more than 3 years following expiration of certification shall complete the basic breath test operator course as provided in Regulation .05B(1) of this chapter to be requalified.

  (4) Suspension and Revocation of Certification.

    (a) An individual who fails a breath test operator certification renewal course shall be immediately suspended by the CTAU as a breath test operator.

    (b) The CTAU supervisor may issue a renewal certificate to an individual if the breath test operator certification renewal course is successfully completed within 120 days of the initial failure.

    (c) The CTAU supervisor may suspend or revoke a certificate of a breath test operator if, in the supervisor's judgment, the individual’s performance is unsatisfactory.

    (d) If the individual’s certificate is revoked, the individual shall return all certificates and manuals to the CTAU supervisor.

B. Breath Test Maintenance Technician.

  (1) To become a breath test maintenance technician, an individual shall:

    (a) Be an employee of CTAU;

    (b) Have successfully completed an approved operator and maintenance course for breath testing instrumentation as described in Regulation .05B(3) of this chapter; and

    (c) Demonstrate proficiency in the use of breath testing instrumentation to:

      (i) The CTAU supervisor; or

      (ii) An approved instructor.

  (2) CTAU shall issue a certificate if:

    (a) The individual complies with §B(1) of this regulation; and

    (b) The Toxicologist approves of the issuance of the certificate.

  (3) Certification of a breath test maintenance technician may be suspended or revoked for the following reasons:

    (a) Failure to properly maintain breath testing instruments; or

    (b) Failure to adhere to this chapter.

C. Breath Test Instructor.

  (1) To become a breath test instructor, an individual shall:

    (a) Successfully complete the training programs described in Regulation .05B of this chapter;

    (b) Have prior experience in training law enforcement officers;

    (c) Assist in at least one basic breath test operator course as referenced in Regulation .05B(1) of this chapter; and

    (d) Be approved by the Toxicologist.

  (2) A breath test instructor may perform any instrument maintenance and repair as needed.

#### Regulation .07 Evidentiary Tests of Breath for Alcohol: Personnel — Duties.

*COMAR 29.05.03.07*

A. Breath Test Operator.

  (1) A breath test operator shall:

    (a) Perform breath tests for alcohol in accordance with training;

    (b) Perform at least one test per month, either a subject or simulation test;

    (c) Notify CTAU of the following:

      (i) Test results that deviate greater than plus or minus 10 percent of the stated concentration for any validation test; or

      (ii) Mechanical problems with the breath testing instrument; and

    (d) Complete all required reports.

  (2) A breath test operator who fails to perform at least one test per month as required in §A(1)(b) of this regulation shall provide a reason for this failure to the CTAU supervisor.

  (3) If a breath test operator will be on extended leave from the agency, the CTAU supervisor shall be notified by the breath test operator or the agency breath test supervisor.

B. Breath Test Maintenance Technician. A breath test maintenance technician shall:

  (1) Set up all instruments in the field;

  (2) Conduct an inspection of the assigned breath testing instruments at least once a month;

  (3) Conduct all scheduled maintenance procedures;

  (4) Change the alcohol gas cylinder or alcohol reference solution as needed;

  (5) Test each instrument with approved alcohol gas standard or alcohol reference solution at least once a month;

  (6) Remove an instrument from service if the result of the test in §B(5) of this regulation is not plus or minus 10 percent of the stated concentration;

  (7) Repair the instrument as needed; and

  (8) Complete all required reports.

#### Regulation .08 Evidentiary Tests of Breath for Alcohol: Instruments and Testing Procedures.

*COMAR 29.05.03.08*

A. Breath Testing Instruments.

  (1) The Toxicologist shall approve all instruments to be used in the State for the purpose of testing breath for alcohol content pursuant to Courts and Judicial Proceedings Article, §§10-302 and 10-304, Annotated Code of Maryland.

  (2) An agency shall only use an instrument that has been approved by the Toxicologist.

  (3) An individual may receive a copy of the list of the manufacturers and models of currently approved instruments from the Department of State Police Forensic Sciences Division at no charge.

B. Certification of Approval of Instruments.

  (1) The Toxicologist shall certify approval of each instrument before it is used in the State.

  (2) At the time of approval by the Toxicologist, the instrument shall be on the most recently updated Conforming Products List of Evidential Breath Alcohol Measurement Devices published in the Federal Register by the National Highway Traffic Safety Administration of the Department of Transportation.

  (3) On at least an annual basis, the Toxicologist or their representative shall recertify approval of each instrument.

  (4) Following successful testing, an instrument that is repaired by a certified breath test maintenance technician may be returned to service without the recertification of approval by the Toxicologist.

C. Inspection. Approved equipment and related records shall be available for inspection by the Toxicologist or representative at all times.

D. Validation Tests.

  (1) The Toxicologist shall approve the alcohol reference solution or alcohol gas standard to be used as validation tests.

  (2) Validation tests shall be performed contemporaneously with each evidentiary breath test using an approved alcohol reference solution or alcohol gas standard.

E. Initial Certification of Instrument Approval.

  (1) Precision and Accuracy Testing.

    (a) Vapor containing 0.020 gram/210 liters, 0.040 gram/210 liters, 0.080 gram/210 liters, and 0.160 gram/210 liters ethanol concentrations shall be introduced through the breath tube of the instrument.

    (b) Each concentration shall be repeated four times.

    (c) As an indication of precision, the combined average standard deviation shall be not greater than 0.0042 gram/210 liters.

    (d) As an indication of accuracy, systematic variations at each ethanol concentration will be calculated and shall be not more than 5 percent or 0.005 gram/210 liters, whichever is greater.

    (e) Any instruments not meeting the precision and accuracy requirements may not be approved.

  (2) Acetone Detection Testing.

    (a) Vapor containing 0.020 gram/210 liters ethanol and 100 microliters of acetone per 500 milliliters solution shall be introduced through the breath tube of the instrument.

    (b) Each concentration shall be repeated four times.

    (c) The instrument shall read between 0.015 and 0.025 gram/210 liters.

    (d) An instrument not meeting the requirement for acetone detection may not be approved.

  (3) Blank Testing.

    (a) Four samples of vapor containing no ethanol or other solvents shall be introduced through the breath tube of the instrument.

    (b) No reading shall exceed 0.005 gram/210 liters vapor.

    (c) An instrument not meeting the blank detection requirement may not be approved.

  (4) If conditions outlined in §E(1) — (3) of this regulation are met:

    (a) The instrument shall be approved; and

    (b) The Toxicologist shall issue a letter certifying instrument approval.

F. Periodic Recertification of Approval.

  (1) Instrument approval shall be recertified at least annually.

  (2) The Toxicologist shall issue a letter recertifying instrument approval.

G. Evidentiary Breath Test Method.

  (1) For at least 20 minutes before a breath sample is taken, an individual may not:

    (a) Eat or drink;

    (b) Have any foreign substance in the individual’s mouth or respiratory tract; or

    (c) Smoke.

  (2) The individual shall be observed and mouth checked.

  (3) Observation of the individual shall be performed by:

    (a) A breath test operator;

    (b) Other uniformed or civilian law enforcement personnel; or

    (c) Any combination of a breath test operator and uniformed or civilian law enforcement personnel.

  (4) The testing procedure shall begin with a blank test to ensure that no alcohol is present in the breath path of the breath testing instrument.

  (5) A validation test shall be run before the individual begins the testing process.

  (6) If the breath testing instrument fails to obtain a reading plus or minus 10 percent of the stated alcohol concentration on the validation test, then the subject test shall be discontinued.

  (7) The individual shall be instructed to take a breath and then deliver a breath sample into the instrument by blowing into the mouthpiece and breath tube until instructed to stop.

  (8) After each subject breath sample, a blank check shall be performed to ensure that no alcohol is present in the breath path.

  (9) Two breath samples shall be collected and analyzed by the breath testing instrument.

  (10) A third breath sample shall be collected only if the absolute difference between the results of the first and second samples exceeds 0.020 gram/210 liters.

  (11) A validation test of known alcohol concentration shall be run after the individual has given the required number of breath samples.

  (12) If the instrument fails to obtain a reading plus or minus 10 percent of the stated concentration on the validation test, then the subject test is invalid.

  (13) The lower of the two or lowest of the three results of the subject test shall be truncated to the second decimal place and reported as the result of the breath test.

#### Regulation .09 Evidentiary Tests of Blood for Alcohol.

*COMAR 29.05.03.09*

A. Laboratories and Procedures for Analysis.

  (1) Laboratories.

    (a) The Department of Maryland State Police Forensic Sciences Division is an approved laboratory to conduct tests of blood for alcohol.

    (b) Approval by the Toxicologist of any other laboratory is required before it may perform any test of blood for alcohol in accordance with Courts and Judicial Proceedings Article, §10-304, Annotated Code of Maryland.

    (c) An individual may receive a copy of the list of currently approved laboratories from the Department of Maryland State Police Forensic Sciences Division at no charge.

  (2) Equipment and Procedures for Analysis.

    (a) The Toxicologist shall approve all equipment and analytical procedures for the testing of blood for alcohol.

    (b) Approved equipment shall be calibrated with alcohol calibration solution or solutions approved by the Toxicologist.

    (c) The calibration shall be checked using an alcohol control solution.

    (d) Alcohol control solution test results may not deviate greater than plus or minus 0.010 gram/100 milliliters from its stated concentration.

    (e) The laboratory shall perform evidentiary tests of blood for alcohol in duplicate and the duplicate results may not deviate greater than plus or minus 0.010 gram/100 milliliters.

    (f) For subject tests, the lower of the duplicate results shall be truncated to the second decimal place and reported as the result of the blood test.

B. Personnel.

  (1) Qualified Medical Personnel. Any qualified medical person is approved to withdraw blood for the testing of blood for alcohol content.

  (2) Analyst.

    (a) The Toxicologist shall certify an analyst performing tests of blood for alcohol content as a qualified person.

    (b) The Toxicologist shall:

      (i) Review the credentials of the analyst;

      (ii) Direct a program of training as necessary; and

      (iii) Set standards for maintenance of proficiency.

    (c) The Toxicologist shall recertify the analyst on a regular basis.

    (d) A certified analyst shall perform at least one batch of subject specimens or proficiency specimens annually.

C. Procedures for Administering an Evidentiary Test of Blood for Alcohol.

  (1) The blood specimen shall be withdrawn by qualified medical personnel.

  (2) Blood sampling equipment shall be approved by the Toxicologist.

  (3) The arresting officer or another law enforcement officer may witness the withdrawal of the blood.

  (4) The law enforcement officer shall:

    (a) Fill out all forms contained in the approved blood sampling equipment kit; and

    (b) Be certain all seals are signed and properly affixed.

  (5) The sample shall be delivered by messenger or mail to the Department of Maryland State Police in containers provided with the sampling equipment.