WSR 08-05-029

PERMANENT RULES

STATE TOXICOLOGIST


[ Filed February 12, 2008, 10:17 a.m. , effective March 14, 2008 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The purpose of this amendment is to add the Alcosensor FST to the list of approved breath alcohol screening devices; to clarify the purposes for which the screening devices are to be used; and the steps that must be followed to ensure a valid test.

Citation of Existing Rules Affected by this Order: Amending chapter 448-15 WAC.

Statutory Authority for Adoption: RCW 46.61.506.

Adopted under notice filed as WSR 07-22-110 on November 6, 2007.

Changes Other than Editing from Proposed to Adopted Version: There are two changes to adopted rule based on comment received during the comment period.

1. WAC 448-15-020 Use of test results, in the proposed language a reference is made to "the language described below." In the section adopted, the language is specifically identified as WAC 448-15-030.

2. WAC 448-15-030 Test protocol, in the proposed version, the language regarding the advisement to the subject of the voluntary nature of the test was deleted. Based on comment received and considered, this language is reinserted to the adopted rule.

3. WAC 448-15-040 Certification, in the proposed version the language regarding the frequency of certification was changed from requiring certification every six months to requiring annual certification. Based on consideration of the manufacturer's recommendations, the certification frequency will not change to annually, and will remain at six months.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: February 12, 2008.

Barry K. Logan, PhD

State Toxicologist

OTS-9902.3


AMENDATORY SECTION(Amending WSR 99-06-047, filed 3/1/99, effective 4/1/99)

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).

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

Any other instruments ((on)) approved by 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.

[Statutory Authority: RCW 46.61.506. 99-06-047, 448-15-010, filed 3/1/99, effective 4/1/99.]


AMENDATORY SECTION(Amending WSR 99-06-047, filed 3/1/99, effective 4/1/99)

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)) establishing probable cause that a subject has ((committed an offense involving the consumption of)) consumed alcohol. ((The test results, when)) For purposes of this section, valid results are considered those obtained from following the approved protocol, 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,)) in WAC 448-15-030. Valid results will show to a reasonable degree of scientific certainty, the test subject's breath alcohol concentration. ((The)) Valid results are ((therefore)) suitable to ((show whether an officer has)) assist in establishing 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).

[Statutory Authority: RCW 46.61.506. 99-06-047, 448-15-020, filed 3/1/99, effective 4/1/99.]


AMENDATORY SECTION(Amending WSR 99-06-047, filed 3/1/99, effective 4/1/99)

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 must perform the test according to the policies and procedures approved by the state toxicologist. 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)) perform the following test protocol:

(1) The operator shall advise the subject that this is a voluntary test, and that it is not an alternative to any evidential breath alcohol test.

(2) 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.

(3) Ensure a blank test result is obtained.

(4) Have the subject exhale into the mouthpiece with a full and continuous exhalation.

(5) Observe the results.

[Statutory Authority: RCW 46.61.506. 99-06-047, 448-15-030, filed 3/1/99, effective 4/1/99.]


AMENDATORY SECTION(Amending WSR 99-06-047, filed 3/1/99, effective 4/1/99)

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)) certifying agency must follow a protocol approved by the state toxicologist. 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.

[Statutory Authority: RCW 46.61.506. 99-06-047, 448-15-040, filed 3/1/99, effective 4/1/99.]


AMENDATORY SECTION(Amending WSR 99-06-047, filed 3/1/99, effective 4/1/99)

WAC 448-15-050   PBT operators.   Persons certified as ((DataMaster)) evidential breath test instrument operators as described in chapter 448-16 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.

[Statutory Authority: RCW 46.61.506. 99-06-047, 448-15-050, filed 3/1/99, effective 4/1/99.]


AMENDATORY SECTION(Amending WSR 99-06-047, filed 3/1/99, effective 4/1/99)

WAC 448-15-060   PBT technicians.   Persons trained according to ((approved)) outlines ((prepared)) approved by the state toxicologist, in the proper procedures for certifying PBT((s)) instruments 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)) evidential breath test instrument technicians as described in chapter 448-16 WAC ((448-13-170)) are also certified to perform all the duties of PBT technicians.

[Statutory Authority: RCW 46.61.506. 99-06-047, 448-15-060, filed 3/1/99, effective 4/1/99.]

Washington State Code Reviser's Office