WSR 01-11-134

PROPOSED RULES

STATE TOXICOLOGIST


[ Filed May 23, 2001, 8:54 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 01-08-049.

Title of Rule: Administration of breath alcohol program.

Purpose: Amendments to rules to clarify intent in the areas of acceptable use of the external standard simulator thermometer, acceptable range for the external standard simulator result, severability, and the need to repeat the fifteen minute observation period following an invalid sample result.

Statutory Authority for Adoption: RCW 46.61.506.

Statute Being Implemented: RCW 46.61.506.

Summary: Acceptable use of the external standard simulator thermometer. Judges in Renton District Court and Bellevue Municipal Court have ruled that the thermometers used in the simulators on breath test instruments do not have sufficient accuracy to meet the existing WAC standard of thirty-four degrees plus or minus 0.2 degrees centigrade, which impacts the admissibility of the breath test result. Other courts may follow suit. All parties have stipulated that the limitations of the thermometer do not affect the accuracy of the results of the breath test.

In light of the ruling from Renton, the acceptable variance specified in the WAC for the temperature of the simulator at the time of the test is being expanded to be plus or minus 0.3 degrees centigrade. This permits the continued use of the current instrument standard of plus or minus 0.2 degrees centigrade at the time of the test, and recognizes the limits of accuracy of the thermometer. An additional provision requires the thermometers to be certified at least annually.

These provisions are intended to address the concerns of the courts on the admissibility of breath alcohol test results, and to permit all future tests to be considered as evidence provided they meet these and the existing requirements of the administrative code.

New section WAC 448-13-035 and the proposed amendments to WAC 448-13-040 are currently adopted as emergency rules (WSR 01-10-007), effective April 20, 2001.

Acceptable range for external standard simulator result. Prior amendments to the acceptable range for the external standard simulator result have been deemed unclear, and raised questions about retroactivity of the section. This change simplifies the acceptable range to 0.072 to 0.088, and notes that the range used in evaluating the admissibility of any test should be in place at the time of the test.

Severability. This language is added to protect otherwise valid provisions of this chapter if any one provision is found to be invalid.

Invalid sample. Unacceptable breath samples trigger an "invalid sample" message on the DataMaster. One of the causes of the "invalid sample" message can be the presence of mouth alcohol, perhaps as a result of regurgitation. In order to eliminate mouth alcohol as a cause of this message, operators are required to repeat the mouth check and the fifteen minute observation period before readministering the breath test.

Reasons Supporting Proposal: This section of the Washington Administrative Code governs the administration of breath alcohol testing in suspected driving under the influence (DUI) cases, which is a vital public safety function. The State Toxicologist is sensitive to the concerns of the courts and seeks to make the rules, which govern the application of scientific principles to the forensic arena, clear to a lay audience.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Barry K. Logan, Ph.D., 2203 Airport Way South, Seattle, WA 98134, (206) 464-5302.

Name of Proponent: Barry K. Logan, Ph.D., Washington State Toxicologist, governmental.

Rule is necessary because of state court decision, State v. Mitchell, Renton District Court, Cause No. C0378716 (April 13, 2001).

Explanation of Rule, its Purpose, and Anticipated Effects: See Summary above.

Proposal Changes the Following Existing Rules: Amendments to WAC 448-13-040 extend the acceptable range for the reading on the external standard simulator thermometer to plus or minus 0.3 degrees, from plus or minus 0.2 degrees.

Amendments to WAC 448-13-060 strike date specific language designed to address transition between 0.08 external standard and 0.10 external standard, and add a savings clause to indicate that criteria applied to determine admissibility of tests are those in effect at the time the test is administered.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Rule applies only to law enforcement agencies and administration of legal breath alcohol test.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Agency compliance not required.

Hearing Location: Bellevue District Office, Washington State Patrol, 2803 156th Avenue S.E., Bellevue, WA 98007-6523, on June 26, 2001, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Beth M. Bizzell by June 20, 2001, (206) 464-5302.

Submit Written Comments to: Barry K. Logan, Ph.D., Washington State Toxicology Laboratory, 2203 Airport Way South, Suite 360, Seattle, WA 98134, fax (206) 389-2632, by June 25, 2001.

Date of Intended Adoption: June 27, 2001.

May 18, 2001

Barry K. Logan, Ph.D.

Washington State Toxicologist


NEW SECTION
WAC 448-13-035   Simulator thermometer certification.   The ability of the simulator to provide a reference ethanol vapor concentration is a function of its temperature. The thermometers used in the simulators shall be certified on an annual basis to have an accuracy of within plus or minus 0.1 degree centigrade. Such certification shall be made using a reference thermometer traceable to standards maintained by the National Institute of Standards and Testing (NIST), or its successor.

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AMENDATORY SECTION(Amending WSR 99-06-048, filed 3/1/99, effective 4/1/99)

WAC 448-13-040   Administration of breath test on the DataMaster.   The following method for performing a breath test is approved by the state toxicologist pursuant to WAC 448-13-130 and includes the following safeguards to be observed by the operator prior to the test being performed. It must be determined that: (1) The person does not vomit or have anything to eat, drink, or smoke for at least fifteen minutes prior to administration of the test; and (2) the subject does not have any foreign substances, not to include dental work, fixed or removable, in his or her mouth at the beginning of the fifteen minute observation period. Such determination shall be made by either an examination of the mouth or a denial by the person that he or she has any foreign substances in mouth. A test mouthpiece is not to be considered a foreign substance for purposes of this section. If a subject is wearing jewelry or ornamentation pierced through their tongue, lips, cheek, or other soft tissues in the oral cavity, they will be required to remove this prior to conducting the breath test. If the subject declines, they will be deemed to have a physical limitation rendering them incapable of providing a valid breath sample and will be required to provide a blood sample under the implied consent statute, RCW 46.20.308.

((The temperature of the solution in the simulator p)) Prior to the start of the test ((must be)) the operator must verify that the thermometer, certified per WAC 448-13-035, indicates that the temperature of the simulator solution is thirty-four degrees centigrade plus or minus ((0.2)) 0.3 degrees centigrade. During the test the person will be required to provide at least two valid breath samples. A refusal to provide a valid breath sample at any point during the test will constitute a refusal. The results of the test will be provided in the form of a printout on a breath test document. These results will indicate the grams of alcohol per two hundred ten liters of breath.

[Statutory Authority: RCW 46.61.506. 99-06-048, 448-13-040, filed 3/1/99, effective 4/1/99; 91-21-040, 448-13-040, filed 10/11/91, effective 11/11/91; 91-06-022, 448-13-040, filed 2/26/91, effective 3/29/91.]


NEW SECTION
WAC 448-13-056   Invalid sample message.   One of the causes of an "invalid sample" message being displayed by the DataMaster during the test is the presence of exogenous mouth alcohol, which could adversely affect the breath test reading. In the event that the DataMaster records an "invalid sample" result at any point during the subject's test, that subject's test should be readministered, after again checking the subject's mouth and repeating the fifteen minute observation period as required in WAC 448-13-040.

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AMENDATORY SECTION(Amending WSR 99-22-009, filed 10/22/99, effective 11/22/99)

WAC 448-13-060   Validity and certification of test results.   A test shall be a valid test and so certified, if the requirements of WAC 448-13-040, 448-13-050 and 448-13-055 are met, and in addition the following criteria for precision and accuracy, as determined solely from the breath test document, are met:

(1) The internal standard test results in the message "verified."

(2) In order to be valid, the two breath samples must agree to within plus or minus ten percent of their mean. This shall be determined as follows:

(a) The breath test results shall be reported, truncated to three decimal places.

(b) The mean of the two breath test results shall be calculated and rounded to four decimal places.

(c) The lower acceptable limit shall be determined by multiplying the above mean by 0.9, and truncating to three decimal places.

(d) The upper acceptable limit shall be determined by multiplying the mean by 1.1 and truncating to three decimal places.

(e) If the results fall within and inclusive of the upper and lower acceptable limits, the two breath samples are valid.

(3) The simulator external standard result must lie between ((.090 to .110 inclusive for tests conducted prior to April 1, 1999, and)) .072 to .088 inclusive ((for tests conducted on or after April 1, 1999. This provision is remedial in nature and applies to any judicial or administrative proceeding conducted after April 27, 1999)).

(4) All four blank tests must give results of .000.

If these criteria are met, then these and no other factors are necessary to indicate the proper working order of the instrument, and so certify it, at the time of the breath test.

(5) These criteria have changed over time, and the criteria applied to determine the validity of any test and so certify it, should be those provisions of the Washington Administrative Code in effect at the time the test is administered.

[Statutory Authority: RCW 46.61.506. 99-22-009, 448-13-060, filed 10/22/99, effective 11/22/99; 95-20-025, 448-13-060, filed 9/27/95, effective 10/28/95; 91-06-022, 448-13-060, filed 2/26/91, effective 3/29/91.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 448-13-225   Severability.   If any part or provision of these rules or regulations or the application thereof is held invalid, such invalidity shall not affect other provisions or applications of these rules which can be given effect without the invalid provision or application, and to this end any section, paragraph or sentence, is declared to be severable.

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Washington State Code Reviser's Office