WSR 01-10-007

EMERGENCY RULES

STATE TOXICOLOGIST


[ Filed April 20, 2001, 1:56 p.m. ]

Date of Adoption: April 20, 2001.

Purpose: 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.

Citation of Existing Rules Affected by this Order: Amending WAC 448-13-040.

Statutory Authority for Adoption: RCW 46.61.506.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The courts' interpretation of the administrative code provisions regarding the acceptable range for the simulator temperature has effectively made all breath test results past and present inadmissible in these and other courts. The inability of the state to obtain this important evidence in the serious crime of driving under the influence (DUI) impacts public safety significantly and constitutes an emergency. Some supporting considerations regarding the need for having an admissible test in place are listed below:

a. It allows the subject, if intoxicated, to be removed from the highway, reducing risk of harm to themselves and other road users.

b. It collects objective numerical evidence of the degree of a person's alcohol consumption, which in turn determines the severity of the penalty applied if they are convicted.

c. It assists with ensuring the appropriate finding of guilt or innocence in a charge of DUI and leads to appropriate sanctions, including substance abuse assessment, counseling, and treatment, to deter future offending.

d. It provides an indication to a substance abuse counselor or treatment provider of the extent of alcohol consumption behavior indulged in by the person, which assists with the development of an appropriate assessment and treatment plan.

e. It provides the ability to prove the absence of alcohol in an apparently impaired individual and is critical to the formation of probable cause to invoke the implied consent provision for a blood draw to prove the presence of drugs.

Perceived problems with the WAC that result in the widespread suppression of breath tests significantly harms both the public and the defendant.

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. Effective Date of Rule: Immediately.

April 19, 2001

Barry K. Logan, Ph.D.

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.]

Washington State Code Reviser's Office