[Code of Federal Regulations]
[Title 28, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR32.5]

[Page 498-500]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
                    CHAPTER I--DEPARTMENT OF JUSTICE
 
PART 32_PUBLIC SAFETY OFFICERS' DEATH, DISABILITY, AND EDUCATIONAL ASSISTANCE 
 
                      Subpart A_General Provisions
 
Sec. 32.5  Evidence.

    (a) Except as otherwise may be expressly provided in the Act or this 
part, a claimant has the burden of persuasion as to all material issues 
of fact, and by the standard of proof of ``more likely than not.''
    (b) Except as otherwise may be expressly provided in this part, the 
PSOB

[[Page 499]]

determining official may, at his discretion, consider (but shall not be 
bound by) the factual findings of a public agency.
    (c) Rules 401 (relevant evidence), 402 (admissibility), 602 to 604 
(witnesses), 701 to 704 (testimony), 901 to 903 (authentication), and 
1001 to 1008 (contents of writings, records, and photographs) of the 
Federal Rules of Evidence shall apply to all filings, hearings, and 
other proceedings or matters.
    (d) In determining a claim, the PSOB determining official may, at 
his discretion, draw an adverse inference if, without reasonable 
justification or excuse--
    (1) A claimant fails or refuses to file with the PSOB Office--
    (i) Such material- or relevant evidence or -information within his 
possession, control, or ken as may reasonably be requested from time to 
time by such official; or
    (ii) Such authorizations or waivers as may reasonably be requested 
from time to time by such official to enable him (or to assist in 
enabling him) to obtain access to material- or relevant evidence or -
information of a medical, personnel, financial, or other confidential 
nature; or
    (2) A claimant under subpart C of this part fails or refuses to 
appear in person--
    (i) At his hearing under subpart E of this part (if there be such a 
hearing); or
    (ii) Before such official (or otherwise permit such official 
personally to observe his condition), at a time and location reasonably 
convenient to both, as may reasonably be requested by such official.
    (e) In determining a claim, the PSOB determining official may, at 
his discretion, draw an inference of voluntary intoxication at the time 
of death or catastrophic injury if, without reasonable justification or 
excuse, appropriate toxicologic analysis (including autopsy, in the 
event of death) is not performed, and/or the results thereof are not 
filed with the PSOB Office, where there is credible evidence suggesting 
that intoxication may have been a factor in the death or injury, or that 
the public safety officer--
    (1) As of or near the injury date, was--
    (i) A consumer of alcohol)--
    (A) In amounts likely to produce a blood-alcohol level of .10 per 
centum or greater in individuals similar to the officer in weight and 
sex; or
    (B) In any amount, after ever having been treated at an inpatient 
facility for alcoholism;
    (ii) A consumer of controlled substances included on Schedule I of 
the drug control and enforcement laws (see 21 U.S.C. 812(a)); or
    (iii) An abuser of controlled substances included on Schedule II, 
III, IV, or V of the drug control and enforcement laws (see 21 U.S.C. 
812(a)); or
    (2) Immediately prior to the injury date, was under the influence of 
alcohol or drugs or other substances or otherwise acting in an 
intoxicated manner.
    (f) In determining a claim under the Act, at 42 U.S.C. 3796c-1 or 
Public Law 107-37, the certification described therein shall constitute 
prima facie evidence--
    (1) Of the public agency's acknowledgment that the public safety 
officer, as of the injury date, was (as applicable)--
    (i) A public safety officer of the kind described in the 
certification;
    (ii) Employed by the agency;
    (iii) One of the following:
    (A) With respect to a law enforcement officer, an officer of the 
agency;
    (B) With respect to a firefighter,
    (1) An officially recognized or designated member of the agency (if 
it is a legally organized volunteer fire department); or
    (2) An employee of the agency;
    (C) With respect to a chaplain,
    (1) An officially recognized or designated member of the agency (if 
it is a legally organized police or volunteer fire department); or
    (2) An officially recognized or designated public employee of the 
agency (if it is a legally organized police or fire department);
    (D) With respect to a member of a rescue squad or ambulance crew, an 
officially recognized or designated public employee member of one of the 
agency's rescue squads or ambulance crews; or
    (E) With respect to a disaster relief worker, an employee of the 
agency (if

[[Page 500]]

it is described in the Act, at 42 U.S.C. 3796b(9)(B) or (C)); and
    (iv) Killed (with respect to a claim under subpart B of this part), 
or totally and permanently disabled (with respect to a claim under 
subpart C of this part), as a direct and proximate result of a line of 
duty injury; and
    (2) That there are no eligible payees other than those identified in 
the certification.