WSR 99-01-011

PROPOSED RULES

STATE TOXICOLOGIST

[Filed December 4, 1998, 2:07 p.m.]



Original Notice.

Preproposal statement of inquiry was filed as WSR 98-17-096.

Title of Rule: Administration of breath alcohol screening test.

Purpose: To describe rules for the approval, operation, and maintenance of preliminary breath test devices.

Statutory Authority for Adoption: RCW 46.61.506.

Statute Being Implemented: RCW 46.61.506.

Summary: Portable, nonevidential devices being used by law enforcement agencies for breath alcohol testing are being regulated.

Reasons Supporting Proposal: Use of devices absent approval for probable cause purposes has been outlawed by the state Supreme Court.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Barry K. Logan Ph.D., 2203 Airport Way South, Seattle, 98134, (206) 343-5435.

Name of Proponent: State Toxicologist, governmental.

Rule is necessary because of state court decision, State v Smith, 130 Wn.2d 215, 922 P.2d 811.

Explanation of Rule, its Purpose, and Anticipated Effects: Approves preliminary breath test devices for purposes of assisting in establishing probable cause for alcohol consumption, subject to appropriate training of operators, maintenance and certification of devices.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Rule affects only law enforcement agencies.

RCW 34.05.328 does not apply to this rule adoption. Compliance not required per subsection (5)(a)(i).

Hearing Location: Washington State Toxicology Lab, 2203 Airport Way South, Seattle, WA 98134, on January 26, 1999, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Linda Collins, (206) 343-5435, by January 20, 1998 [1999].

Submit Written Comments to: Barry K. Logan Ph.D., 2203 Airport Way South, Seattle, 98134, fax (206) 731-8564, by January 20, 1998 [1999].

Date of Intended Adoption: February 28, 1999.

December 4, 1998

Barry K. Logan Ph.D.

Washington State Toxicologist

OTS-2630.2

Chapter 448-15 WAC



ADMINISTRATION OF BREATH ALCOHOL SCREENING TEST



NEW SECTION



WAC 448-15-010  Approval of devices. The following preliminary breath test (PBT) instruments are approved for use in the state of Washington as breath alcohol screening devices, subject to the requirements outlined in the following sections:

Alcosensor III (Intoximeters, St. Louis, MO).

Any other instruments on the National Highway Traffic Safety Administration (NHTSA) approved products list will be considered for approval in Washington state on application to the state toxicologist, providing that a suitable program for maintenance, certification and operator training is also established and approved.



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NEW SECTION



WAC 448-15-020  Use of test results. The devices described in WAC 448-15-010 are approved for use in aiding police officers to form probable cause that a subject has committed an offense involving the consumption of alcohol. The test results, when obtained by a trained operator using an approved device which has been maintained and certified according to the rules described below, and carried out according to the approved test protocol, will show to a reasonable degree of scientific certainty, the test subject's breath alcohol concentration. The results are therefore suitable to show whether an officer has probable cause to place a person under arrest for alcohol related offenses. These results may not be used on their own for determining, beyond a reasonable doubt, that a person's breath alcohol concentration exceeds a proscribed level such as anticipated under the 'per se' statutes for intoxication.

This preliminary breath test is voluntary, and participation in it does not constitute compliance with the implied consent statute (RCW 46.20.308).



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NEW SECTION



WAC 448-15-030  Test protocol. After advising the subject that this is a voluntary test, and that it is not an alternative to an evidential breath alcohol test as described in chapter 448-13 WAC, the operator shall determine by observation or inquiry, that the subject has not consumed any alcohol in the fifteen minutes prior to administering the test. If the subject has consumed alcohol during that period, the officer should not administer the screening test for probable cause purposes until fifteen minutes have passed. If the subject responds that they have not consumed any alcohol in the last fifteen minutes, the officer may offer the subject the opportunity to provide a breath sample into the PBT. If the subject consents, the operator will check the temperature of the device to ensure that it is within the normal operating range. The operator will then press the "read" button to obtain a sample of ambient air, and ensure that this results in a reading of 0.003 or less. The subject will be asked to exhale into the device. The device will be activated towards the end of the subject's exhalation, to capture a portion of end expiratory breath for analysis.



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NEW SECTION



WAC 448-15-040  Certification. Any PBT used as described in the preceding sections, must be certified at least every six months. In order to certify a PBT as accurate, the testing shall include at a minimum, a blank test of room air which must give a result of less than 0.005g/210L, and a test of a certified dry gas alcohol standard. The instrument must accurately measure the reference value within 0.010g/210L. A record of certification must be kept by the person responsible for calibration. Certification of PBTs can be performed by persons certified by the state toxicologist as PBT technicians, or by factory authorized representatives, provided that the protocol for certification approved by the state toxicologist is followed.



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NEW SECTION



WAC 448-15-050  PBT operators. Persons certified as DataMaster operators as described in WAC 448-13-150, who received their certification or recertification after September 1, 1998, shall be trained and authorized to perform the tests described herein on the PBT, for the purposes outlined in this section.



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NEW SECTION



WAC 448-15-060  PBT technicians. Persons trained according to approved outlines prepared by the state toxicologist, in the proper procedures for certifying PBTs shall be certified as PBT technicians. Their responsibilities will include performing periodic certification and maintaining records on such certification. Wallet sized permits shall be issued to persons so qualified. The certification received on successful completion of the training must be renewed every three years. Persons certified as DataMaster technicians as described in WAC 448-13-170 are also certified to perform all the duties of PBT technicians.



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