WSR 99-06-047

PERMANENT RULES

STATE TOXICOLOGIST


[ Filed March 1, 1999, 8:50 a.m. ]

Date of Adoption: February 28, 1999.

Purpose: Adoption of administrative rules for certification and use of portable breath test devices, and implementation of a program to accomplish this.

Statutory Authority for Adoption: RCW 46.61.506.

Adopted under notice filed as WSR 99-01-011 on December 4, 1998.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 2, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 10, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 10, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0. Effective Date of Rule: Thirty-one days after filing.

February 28, 1999

Barry K. Logan, Ph.D.

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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Washington State Code Reviser's Office