Administrative Code

Virginia Administrative Code
12/2/2022

Chapter 30. Regulations for the Approval of Field Tests for Detection of Drugs

Part I
Definitions

6VAC40-30-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Agency" means any federal, state, or local government law-enforcement organization in the Commonwealth.

"Approval authority" means the Director of the Department of Forensic Science or the director's designee.

"Department" means the Department of Forensic Science.

"Drug" means any controlled substance or imitation controlled substance, as defined in § 18.2-247 of the Code of Virginia, or "marijuana" as defined in §§ 4.1-600 and 18.2-247 of the Code of Virginia.

"Field test" means any presumptive chemical test or any presumptive mobile instrument used outside of a forensic laboratory environment to detect the presence of a drug.

"List of approved field tests" means a list of field tests approved by the department for use by law-enforcement agencies in the Commonwealth and periodically published by the department in the Virginia Register of Regulations in accordance with § 19.2-188.1 of the Code of Virginia.

"Manufacturer" means any entity that makes or assembles field tests to be used by any law-enforcement officer or agency in the Commonwealth for the purpose of detecting a drug.

"Manufacturers' instructions and claims" means those testing procedures, requirements, instructions, precautions, and proposed conclusions that are published by the manufacturer and supplied with the field tests.

"Street drug preparations" means any drug or combination of drugs and any other substance that has been encountered or is likely to be encountered by a law-enforcement officer as a purported drug in the Commonwealth.

Statutory Authority

§ 9.1-1110 of the Code of Virginia.

Historical Notes

Former 1VAC30-90-10 derived from VR330-05-01 § 1, eff. April 8, 1992; amended and adopted as 6VAC20-220-10, Virginia Register Volume 20, Issue 4, eff. December 3, 2003; amended and renumbered as 6VAC40-30-10, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; amended, Virginia Register Volume 22, Issue 21, eff. July 26, 2006; Volume 30, Issue 6, eff. January 3, 2014; Volume 37, Issue 1, eff. October 1, 2020; Volume 38, Issue 1, eff. September 30, 2021.

Part II
Process for Approval of Field Tests

6VAC40-30-20. Authority for approval.

Section 19.2-188.1 of the Code of Virginia provides that the Department of Forensic Science shall approve field tests for use by law-enforcement officers to enable them to testify to the results obtained in any preliminary hearing regarding whether any substance, the identify of which is at issue in such hearing, is a controlled substance or imitation controlled substance, as defined in § 18.2-247 of the Code of Virginia, or "marijuana" as defined in §§ 4.1-600 and 18.2-247 of the Code of Virginia.

Statutory Authority

§ 9.1-1110 of the Code of Virginia.

Historical Notes

Former 1VAC30-90-20 derived from VR330-05-01 § 1, eff. April 8, 1992; amended and adopted as 6VAC20-220-20, Virginia Register Volume 20, Issue 4, eff. December 3, 2003; amended and renumbered as 6VAC40-30-20, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; amended, Virginia Register Volume 22, Issue 21, eff. July 26, 2006; Volume 30, Issue 6, eff. January 3, 2014; Volume 38, Issue 1, eff. September 30, 2021.

6VAC40-30-30. Request for evaluation.

A. Any manufacturer that wishes to submit field tests for evaluation shall submit a written request for evaluation to the department director at the following address:

Director
Department of Forensic Science
700 North Fifth Street
Richmond, VA 23219

B. For presumptive chemical tests, materials sufficient for at least 10 tests shall be supplied for each drug for which the manufacturer requests evaluation. The materials shall include all instructions, precautions, color charts, flow charts, and other accompanying informational materials that are provided with the test and that describe the use and interpretation of the test. The manufacturer shall also include exact specifications as to the chemical composition of all chemical or reagents used in the presumptive chemical tests. These specifications shall include the volume or weight of the chemicals and the nature of their packaging. Safety Data Sheets for each chemical or reagent shall be sufficient for this purpose.

C. For presumptive mobile instruments, two nonsequentially manufactured instruments and supporting materials shall be supplied for each model for which the manufacturer requests evaluation. These materials shall include all instructions, all training materials regarding the use of the instrument by law enforcement, the instrument specifications, a list of compounds in the instrument's library, and any foundational validation studies. If the manufacturer provides training for users of the instruments beyond the written instructional materials, such training shall be made available for the evaluation. The instruments shall be returned to the manufacturer upon completion of the evaluation.

D. The department's evaluation process will require at least 120 days from the receipt of the written request and all needed materials from the manufacturer.

E. The department will use commonly encountered street drug preparations to examine those field tests submitted for evaluation. In order to be approved, the presumptive chemical test must correctly react in a clearly observable fashion to the naked eye and perform in accordance with manufacturers' instructions and claims. In order to be approved, the presumptive mobile instrument must perform in accordance with the manufacturer's instructions and advertised claims and offer convenience and efficiency in operation as determined by the department.

Statutory Authority

§ 9.1-1110 of the Code of Virginia.

Historical Notes

Former 1VAC30-90-20 derived from VR330-05-01 § 1, eff. April 8, 1992; amended and adopted as 6VAC20-220-30, Virginia Register Volume 20, Issue 4, eff. December 3, 2003; amended and renumbered as 6VAC40-30-30, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; Volume 30, Issue 6, eff. January 3, 2014; Volume 37, Issue 1, eff. October 1, 2020.

6VAC40-30-40. Notice of decision.

The department will notify each manufacturer in writing of the approval or disapproval of each field test for which evaluation was requested. Should any field test not be approved, the manufacturer may resubmit its request for evaluation of that field test according to the previously outlined procedures. Resubmitted requests for approval shall be accompanied by a detailed explanation of all modifications or changes to the field test, the field test instructions, or the manufacturer's claims since the department's most recent evaluation of the field test.

Statutory Authority

§ 9.1-1110 of the Code of Virginia.

Historical Notes

Former 1VAC30-90-20 derived from VR330-05-01 § 1, eff. April 8, 1992; amended and adopted as 6VAC20-220-40, Virginia Register Volume 20, Issue 4, eff. December 3, 2003; amended and renumbered as 6VAC40-30-40, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; Volume 30, Issue 6, eff. January 3, 2014; Volume 37, Issue 1, eff. October 1, 2020.

6VAC40-30-50. Maintenance of approved status.

The department may require that a reevaluation be done as often as annually for routine purposes. If any modifications are made to any approved field test by the manufacturer, other than additions to the compounds in a presumptive mobile instrument's library, the department shall be notified in writing. These modifications shall include any chemical, procedural, instructional, or firmware or software modifications made to the field test. The department may require reevaluation of any approved field test upon receiving notification of any such modifications.

If unreported modifications are discovered by the department, the department may require a reevaluation of the approved field test at any time. The department shall notify the manufacturer in writing of this requirement.

Statutory Authority

§ 9.1-1110 of the Code of Virginia.

Historical Notes

Former 1VAC30-90-20 derived from VR330-05-01 § 1, eff. April 8, 1992; amended and adopted as 6VAC20-220-50, Virginia Register Volume 20, Issue 4, eff. December 3, 2003; amended and renumbered as 6VAC40-30-50, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; amended, Virginia Register Volume 22, Issue 21, eff. July 26, 2006; Volume 30, Issue 6, eff. January 3, 2014; Volume 37, Issue 1, eff. October 1, 2020.

6VAC40-30-60. Publication.

Upon completion of such evaluations and in concurrence with the approval authority, the department will periodically publish a list of approved field tests in the General Notices section of the Virginia Register of Regulations. The department will also periodically publish the list on its website. The department may, in addition, provide copies of its approval list to any agency subject to this chapter. The department may share any information or data developed from this testing with these agencies.

Statutory Authority

§ 9.1-1110 of the Code of Virginia.

Historical Notes

Former 6VAC20-220-60 derived from Virginia Register Volume 20, Issue 4, eff. December 3, 2003; amended and renumbered as 6VAC40-30-60, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; Volume 30, Issue 6, eff. January 3, 2014.Publication of approved field tests: General Notices, 19:23 VA.R. 3410-3411 July 28, 2003; 20:4 VA.R. 367-369 November 3, 2003; 20:13 VA.R. 1638-1640 March 8, 2004; 22:16 VA.R. 2395-2397 April 17, 2006; 22:23 VA.R. 3412-3416 July 24, 2006; 23:6 VA.R. 982-986 November 27, 2006; 24:2 VA.R. 247-251 October 1, 2007; 24:18 VA.R. 2723-2727 May 12, 2008; 27:15 VA.R. 1970-1977 March 28, 2011; 27:22 VA.R. 2434-2438 July 4, 2011; 28:5 VA.R. 552-556 November 7, 2011; 28:11 VA.R. 997-1002 January 30, 2012; 28:14 VA.R. 1270-1275 March 12, 2012; 29 VA.R. 635-640 October 8, 2012; 29:7 VA.R. 1346-1351 December 3, 2012; 29:23 VA.R. 2982-2991 July 15, 2013; 30:1 VA.R. 85-90 September 9, 2013; 30:6 VA.R. 793-799 November 18, 2013; 30:16 VA.R. 2254-2261 April 7, 2014; 30:23 VA.R. 2581-2587 July 14, 2014; 32:8 VA.R. 1507-1514 December 14, 2015; 32:13 VA.R. 2057-2067 February 22, 2016; 39:8 VA.R. 1190-1191 December 5, 2022.

6VAC40-30-70. Liability.

A. The department assumes no liability as to the safety of these field tests, any chemicals contained therein, or the procedures and instructions by which they are used.

B. The department further assumes no responsibility for any incorrect results or interpretations obtained from these field tests.

Statutory Authority

§ 9.1-1110 of the Code of Virginia.

Historical Notes

Former 1VAC30-90-20 derived from VR330-05-01 § 1, eff. April 8, 1992; amended and adopted as 6VAC20-220-70, Virginia Register Volume 20, Issue 4, eff. December 3, 2003; amended and renumbered as 6VAC40-30-70, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; Volume 30, Issue 6, eff. January 3, 2014; Volume 37, Issue 1, eff. October 1, 2020.

Part III
Fees

6VAC40-30-80. Fees.

For presumptive chemical tests, manufacturers shall pay the actual cost of each street drug preparation and will be charged a fee of $50 for each drug for which individual evaluation is requested. For presumptive mobile instruments, manufacturers shall pay the actual cost of each street drug preparation and a fee of $2,500 for each model of the presumptive mobile instrument for which evaluation is requested. The department will review the manufacturer's request and notify the manufacturer in writing of the amount due before the evaluation begins. Manufacturers who wish to withdraw a request for evaluation shall immediately notify the department in writing. The department's assessment of the amount of payment required will be based upon a detailed review of the manufacturer's request, and that amount will be final. The evaluation process will not be initiated before full payment is made to the Treasurer of Virginia.

Statutory Authority

§ 9.1-1110 of the Code of Virginia.

Historical Notes

Former 1VAC30-90-30 derived from VR330-05-01 § 3, eff. April 8, 1992; amended and adopted as 6VAC20-220-80, Virginia Register Volume 20, Issue 4, eff. December 3, 2003; amended and renumbered as 6VAC40-30-80, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; Volume 30, Issue 6, eff. January 3, 2014; Volume 37, Issue 1, eff. October 1, 2020.

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