Original Notice.

     Preproposal statement of inquiry was filed as WSR 09-11-032.

     Title of Rule and Other Identifying Information: Chapter 204-50 WAC, Ignition interlock breath alcohol devices.

     Hearing Location(s): General Administration Building Auditorium, 210 11th Avenue, Olympia, WA 98504, on August 25, 2009, at 10:00 a.m.

     Date of Intended Adoption: August 26, 2009.

     Submit Written Comments to: Trooper Steve Luce, 811 East Roanoke Street, Seattle, WA 98100, e-mail steve.luce@wsp.wa.gov, fax (206) 720-3023, by August 25, 2009.

     Assistance for Persons with Disabilities: Contact Trooper Steve Luce by August 24, 2009, (206) 720-3018.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Updating current language for clarification to include the change from the equipment and standards unit to the impaired driving section.

     Reasons Supporting Proposal: Provides clarification to the language.

     Statutory Authority for Adoption: RCW 46.37.005 and 46.04.215.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent:

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Trooper Steve Luce, 811 East Roanoke Street, Seattle, WA 98100, (206) 720-3018.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. Does not adopt or make significant amendments to policy or the regulatory program.

     A cost-benefit analysis is not required under RCW 34.05.328. Does not adopt or make significant amendments to policy or the regulatory program.

July 21, 2009

John R. Batiste

Chief

OTS-2546.1

AMENDATORY SECTION(Amending WSR 05-17-065, filed 8/11/05, effective 9/11/05)

WAC 204-50-030   Definitions.   The following definitions ((shall)) will apply throughout this chapter:

     Alcohol - ((The generic class of organic compounds known as alcohols and, specifically)) Means the unique chemical compound ethyl alcohol. For the purpose of ignition interlock devices, ((there is no requirement expressed or implied that the)) all devices will be ((specifically)) specific for ethyl alcohol.

     Authorized service provider (ASP) - The person or company meeting all qualifications outlined throughout this chapter and approved and trained by the manufacturer to service, install, monitor, calibrate, and provide information on manufacturer's devices currently certified for use in Washington state.

     Bogus sample - Any air sample that is altered, diluted, stored, or filtered human breath, or which is obtained from an air compressor, hot air dryer, balloon, manual air pump, or other mechanical device, and is provided by an individual attempting to start or continue to operate a vehicle equipped with a device.

     ((Ignition interlock device (IID) - An electronic device that is installed in a vehicle which requires the taking of a BAC test prior to the starting of the vehicle and at periodic intervals after the engine has been started. If the unit detects a BAC test result below the alcohol setpoint, the unit will allow the vehicle's ignition switch to start the engine. If the unit detects a BAC test result above the alcohol setpoint, the vehicle will be prohibited from starting.))

     Breath or blood alcohol concentration (BAC) - Is the amount of alcohol in a person's blood or breath determined by chemical analysis, which shall be measured by grams of alcohol per:

     (a) 100 milliliters of blood; or

     (b) 210 liters of breath.

     ((Circumvention - Means the attempted or successful bypass of the proper functioning of an ignition interlock device including, but not limited to, the operation of a vehicle without a properly functioning device, the push start of a vehicle with the device, disconnection or alteration of the device, the introduction of a bogus sample other than a deep-lung sample from the driver of the vehicle, introduction of an intentionally contaminated or altered breath sample, continued operation of the interlock vehicle after the device detects excess breath alcohol.

     Court (or originating court) - The particular Washington state court, if any, that has required the use of an ignition interlock device by a particular individual or has responsibility for the preconviction or postconviction supervision of an individual required to use or using the device.))

     Certification - The testing and approval process required by RCW 46.04.215.

     Chief - The chief of the Washington state patrol.

     Circumvention - Means the attempted or successful bypass of the proper functioning of an ignition interlock device including, but not limited to, the operation of a vehicle without a properly functioning device, the push start of a vehicle with the device, disconnection or alteration of the device, the introduction of a bogus sample other than a deep-lung sample from the driver of the vehicle, introduction of an intentionally contaminated or altered breath sample, continued operation of the interlock vehicle after the device detects excess breath alcohol.

     Court (or originating court) - The particular Washington state court, if any, that has required the use of an ignition interlock device by a particular individual or has responsibility for the preconviction or postconviction supervision of an individual required to use or using the device.

     Device - An ignition interlock breath alcohol device (IID).

     DOL - The department of licensing of the state of Washington.

     ((ESR - The equipment and standards review unit of the Washington state patrol.))

     Fail level - The BAC of .025 or a level set by the originating court, if lower, at which the device will prevent the operator from starting the vehicle, and/or once the vehicle is started, the level at which the operator must record a test below, or must shut off the vehicle, to avoid registering a violation reset.

     Ignition interlock device (IID) - An electronic device that is installed in a vehicle which requires submitting to a BAC test prior to the starting of the vehicle and at periodic intervals after the engine has been started. If the unit detects a BAC test result below the alcohol setpoint, the unit will allow the vehicle's ignition switch to start the engine. If the unit detects a BAC test result above the alcohol setpoint, the vehicle will be prohibited from starting.

     Impaired driving section (IDS) - The impaired driving section of the Washington state patrol.

     Lessee - A person who has entered into an agreement with a manufacturer or authorized service provider to lease a device.

     Manufacturer - The person, company, or corporation who produces the device, and certifies to ((ESR)) IDS that a service provider is qualified to service, install, monitor, calibrate, and provide information on devices.

     OAC - Office of the administrator of the court.

     Restricted operator - A person whose driving privileges are restricted to operating only motor vehicles equipped with an approved, functioning IID.

     Simulator - A device which when filled with a certified simulator solution, maintained at a known temperature, provides a vapor sample of a known alcohol concentration.

     Tampering - Any act or attempt to disable or circumvent the legal operation of an IID.

     Violation reset - The condition caused by the failure of the operator of a vehicle to perform a test or retest as required, or by the operator's inability to achieve such test or retest results at the lower of the maximum allowable alcohol concentration as set by the originating court or .025 BAC, the device and the vehicle in which it is installed must be returned to the manufacturer or authorized service provider to be reset.

[Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-030, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-030, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-030, filed 12/9/87.]

     (a) To be certified, a device must:

     (i) Meet all standards set under chapter 204-50 WAC;

     (ii) Meet or exceed the minimum test standards in sections one and two of the model specifications for breath alcohol ignition interlock devices (BAIID) as published in the Federal Register, Volume 57, Number 67, Tuesday, April 7, 1992, on pages 11774 - 11787, or as rules are adopted. Only a notarized statement, from a laboratory capable of performing the tests specified, will be accepted as proof of meeting or exceeding the standards. The notarized statement ((shall)) must include the name and signature of the person in charge of the tests under the following sentence:

     (iii) Submit two devices to the IDS for testing and review.

     (b) Upon receipt of a statement from a testing laboratory that two samples of a device have successfully passed the test procedures listed in this chapter, and confirmation that all other requirements of this chapter have been met, the chief or designee may issue a letter of certification for the device.

     (2) Revocation or surrender of certification.

     (a) The letter of certification ((shall)) will be ((valid until)) subject to review by the IDS on an annual basis. It will be valid for three years or until voluntarily surrendered by the manufacturer or until revoked by the chief or designee for cause. Reasons for revocation include but are not limited to:

     (((1))) (i) Evidence of repeated device failures due to gross defects in design, materials, and/or workmanship during manufacture, installation, monitoring, or calibration of the device such that the standards for accuracy and reliability of the devices for which the devices were tested are not being met (as determined by ((ESR)) IDS);

     (((2))) (ii) Evidence that the features and functionality of a manufacturer's devices are not being programmed properly by ASP(s) or are being circumvented by lessees such that the standards for anticircumvention for which the devices were tested are not being met;

     (((3))) (iii) Any violation on the part of the manufacturer(s) or ASP(s) of any of the laws or regulations related to the installation, servicing, monitoring, and calibration of devices, including, but not limited to, "other provisions" listed in WAC 204-50-120;

     (((4))) (iv) Notice of cancellation of manufacturer's and/or ASP's required liability insurance is received;

     (((5))) (v) Notification that the manufacturer is no longer in business. This notification must be made immediately to the IDS;

     (((6))) (vi) Notification that material modification or alteration in the components and/or the design of the certified device is not provided or the recertification process is not completed as outlined in WAC 204-50-050.

     (((7))) (b) Unless necessary for the immediate good and welfare of the public, revocation ((shall)) will be effective thirty days from the date of the letter sent to the manufacturer via certified mail, return receipt requested. A copy of each notice of revocation ((shall)) will be provided to the director of the DOL and to the OAC for the state of Washington. The manufacturer's device(s) will be removed from the list of certified devices on the WSP web site.

     (((8))) (c) Upon voluntary surrender, or revocation of a letter of certification for a manufacturer's device, all like devices ((shall)) must be removed and replaced by a certified device, within sixty-five days of the effective date of such surrender or revocation. The ASP must notify all affected lessees of decertification and the requirements for a new device to be installed by an existing ASP.

     (((9))) (d) The ((ESR shall)) IDS will maintain a file of all current, revoked, and voluntarily surrendered letters of certification for the period of time as outlined in the WSP records retention schedule.

     (3) Review for recertification.

     A manufacturer whose letter of certification has been revoked may request a review of revocation by submitting the request in writing to the chief or designee within thirty days from the date on the revocation letter. The request must be made in writing and mailed to WSP ((ESR Unit, P.O. Box 42614, Olympia, WA 98504-2614)) Impaired Driving Section, 811 East Roanoke St., Seattle, WA 98102.

[Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-040, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-040, filed 12/23/98, effective 1/1/99. Statutory Authority: RCW 46.20.730. 88-15-050 (Order 88-04-ESR), § 204-50-040, filed 7/18/88. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-040, filed 12/9/87.]

[Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-050, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-050, filed 12/23/98, effective 1/1/99. Statutory Authority: RCW 46.20.730. 88-15-050 (Order 88-04-ESR), § 204-50-050, filed 7/18/88. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-050, filed 12/9/87.]

[Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-070, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-070, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-070, filed 12/9/87.]

     (2) The device must be calibrated for accuracy according to the manufacturer's and the IDS's procedures, using a wet bath simulator or dry gas standard.

     (a) Wet bath simulators must use a mercury in glass or digital thermometer with a scale graduated in tenths of a degree measuring a range between 33.5 and 34.5 degrees centigrade. These thermometers must be certified annually using a National Institute of Standards and Technology (NIST) certified digital reference thermometer.

     (b) Dry gas alcohol standards must be certified to a known reference value and traceable to National Institute of Standards and Technology - NIST Traceable Reference Material (NIST-NTRM) ethanol standards. This known value will also be adjusted for pressure changes due to elevation to which the dry gas is being used.

     (3) All data contained in the device's memory must be downloaded and the manufacturer and/or the ASP ((shall)) must make a hard copy or electronic equivalent of the client data and the results of each examination. Any evidence of noncompliance, violations, or signs of tampering or circumvention ((shall)) must be reported as requested by and in a format acceptable to the originating court, IDS and/or DOL. All information obtained as a result of each inspection ((shall)) must be retained by the manufacturer or approved service provider for two years from the date the device is removed from the vehicle.

     (((3))) (4) Any ASP proposing to offer a mail-in calibration and examination program to their lessees must obtain approval from ((ESR)) IDS prior to implementing the mail-in program. To obtain approval the ASP must submit procedures outlining how the mail-in program will work. ASP must also provide the customer with written instructions on how to utilize the mail-in program. A mail-in program does not eliminate or take the place of any requirements outlined in WAC 204-50-120.

     (((4))) (5) The manufacturer and/or ASP must provide upon request, additional reports in a format acceptable to and at no cost to DOL, IDS and/or the originating court.

     (6) The ASP must maintain records documenting all calibrations, downloads and any other service performed, to include violation reset service. Charges for installations, calibrations, downloads and service must be made using a numbered billing invoice. The billing invoice must contain the date of service and all fees for service must be itemized.

     (7) Retention of the record of installation, calibrations, downloads, service and associated invoices must be maintained on site for a minimum of two years.

[Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-080, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-080, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-080, filed 12/9/87.]

     (1) Special locks, seals, and installation procedures that prevent or record evidence of tampering and/or circumvention attempts.

     (2) In addition, the approved service provider will affix to the device a label containing the following notation: "Warning - This device has been installed under the laws of the state of Washington. Attempts to disconnect, tamper with, or circumvent this device may subject you to criminal prosecution. For more information, call (insert manufacturer's or approved service provider's toll free number)."

     (3) No owner or employee of a manufacturer of ASP may authorize or assist with the disconnection of a device, or enable the use of any "emergency bypass" mechanism or any other "bypass" procedure that allows a person restricted to use the vehicle equipped with a functioning ignition interlock, to start or operate a vehicle without providing all required breath samples. Doing so may subject the person to criminal prosecution under RCW 46.20.750 and may cause the revocation of a manufacturer's certification under WAC 204-50-040.

     (4) All known device circumventions or tampering must be reported to the IDS upon request.

[Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-090, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-090, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-090, filed 12/9/87.]

     (1) ((The device shall)) Be designed to permit a "restart" within two minutes of a stall or when the ignition has been turned off.

     (2) ((The device shall)) Automatically and completely purge residual alcohol before allowing subsequent tests.

     (3) ((The device shall)) Be installed in such a manner that it will not interfere with the normal operation of the vehicle after it has been started.

     (4) ((Each device shall)) Be provided with an ample supply of disposable mouth pieces designed to minimize the introduction of saliva into the device.

     (5) ((Each device shall)) Be uniquely serial numbered. Along with any other information required by DOL or by an originating court, all reports to DOL or to an originating court concerning a particular device ((shall)) must include the name, address, and driver's license number of the lessee, and the unique number of the device. The name, address, telephone number (toll free), and contact person of the manufacturer or approved service provider furnishing such report ((shall)) must also be included as part of the report.

     (6) ((Each device shall)) Record each time the vehicle is started, the results of the test, how long the vehicle was operated, and any indication of bypassing or tampering with the device.

     (7) ((Each device shall)) Require the operator of the vehicle to submit to a retest within ten minutes of starting the vehicle. Retesting ((shall)) must continue at intervals not to exceed sixty minutes after the first retest. The device ((shall)) must:

     (a) Be equipped with a method of immediately notifying peace officers if the required retest(s) above is not performed, or if the result of the retest exceeds the lower of .025 BAC or the alcohol concentration as prescribed by the originating court. Examples of acceptable forms of notification are repeated honking of the vehicle's horn, repeated flashing of the vehicle's headlamps, or the wailing of a small siren. Such notification may be disabled only by switching the engine off, or by the achievement of a retest at a level the lower of .025 BAC or the maximum allowable alcohol concentration as set by the originating court.

     (((8) In addition, if a retest is not performed when called for by the device, or if the operator is unable to achieve a retest at a level the lower of .025 BAC or the maximum allowable alcohol concentration as set by the originating court, the device shall)) (b) Automatically enter a violation reset condition. A device which enters a violation reset condition and the vehicle in which it is installed, must be returned to the manufacturer or ASP to be serviced within five days or the device ((shall)) must render the vehicle inoperable. The manufacturer or approved service provider ((shall)) must notify the originating court (if any) of such violation reset conditions in a format acceptable to the originating court within five days of servicing the device. The manufacturer or ASP ((shall)) must provide notification to DOL and IDS in a format acceptable should DOL or IDS promulgate rules requiring such notification.

[Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-110, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-110, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-110, filed 12/9/87.]

     (1) ((Shall)) Guarantee repair or replacement of a defective device within the state of Washington within a maximum of forty-eight hours of receipt of a complaint.

     (2) ((Shall)) Demonstrate to the satisfaction of ((ESR)) IDS, a service delivery plan under which any restricted operator may obtain installation and routine service of that manufacturer's device within a seventy-five mile radius of his or her place of residence. ((Further, shall))

     (3) Provide ((ESR)) IDS, a map of the state of Washington showing the area covered by each approved service provider, and the name, address, and telephone number of each approved service provider. ((The manufacturer shall provide ESR a revised map showing))

     (a) Any changes to its authorized service provider network within ten days of such change. ((Also within thirty days of))

     (b) Any additions to the approved service provider network, provide evidence to ((ESR)) IDS that any added ASPs have the insurance coverage as required by subsection (7) of this section.

     (((3) Shall)) (4) Maintain a twenty-four hour, three hundred sixty-five days a year toll-free telephone number for lessees to call if they have problems with the device they have leased from the manufacturer or approved service provider. Calls must either be answered by a technician qualified to service the manufacturer's devices, or the call must be returned by a qualified technician within thirty minutes of the original call.

     (((4) Shall)) (5) Provide the lessee a statement of charges clearly specifying warranty details, monthly lease amount, any additional charges anticipated for routine calibration and service checks and what items, if any, are provided without charge. To ensure equal accessibility of the benefits of this technology to all citizens of the state of Washington, such pricing ((shall)) must be uniform statewide.

     (((5) Shall)) (6) Provide the lessee written notice of any changes in the statement of charges regardless of what person or agency requested the change, prior to the implementation of such changes.

     (((6) Shall)) (7) Provide to ((ESR)) IDS proof that the manufacturer has products liability insurance coverage with minimum liability limits of one million dollars per occurrence, and three million dollar aggregate. Liability covered ((shall)) must include, but not limited to: Defects in product design, materials, and workmanship during manufacture, calibration, installation, removal, and all completed operations. Such insurance must be provided by a company authorized to offer such coverage in the state, and such company ((shall)) must include the state of Washington as an additional insured, and ((shall)) must agree to notify ((ESR)) IDS not less than thirty days before the expiration or termination of such coverage. Insurance coverage required in this subsection must be in addition to, and not considered a replacement for coverage required in subsection (((7))) (8) of this section.

     (((7) Shall)) (8) Provide ((ESR)) IDS proof that each and every ASP has garage keepers liability insurance coverage with minimum liability limits of fifty thousand dollars. Liability covered ((shall)) must include, but not be limited to, damage to lessee's vehicle and personal property while in the care and/or custody of the ASP. Further ((shall)) must provide ((ESR)) IDS proof that each and every ASP has completed operations insurance coverage with minimum liability limits of one million dollars per occurrence, and two million dollars aggregate. Liability covered ((shall)) must include, but not be limited to, defects in materials and workmanship during installation, removal, service, calibration, and monitoring. All such insurance must be provided by a company authorized to offer such coverage in the state, and such company ((shall)) must include the state of Washington as an additional insured, and ((shall)) must agree to notify ((ESR)) IDS not less than thirty days before expiration or termination of such coverage. Insurance coverage required in this subsection must be in addition to and not considered a replacement for coverage required in subsection (6) of this section.

     (((8) Shall,)) (9) If so requested by the originating court, notify the originating court, if any, of the removal of a device under any circumstances other than:

     (a) Immediate device repair needs.

     (b) Removal of the device in order to switch it to a replacement vehicle to be operated by the restricted operator. Report of such a vehicle switch must be transmitted to the originating court within two business days of such a switch, if so requested by the originating court at the time of initial installation of the device. Report of such a vehicle switch must be transmitted to the DOL within two business days of such a switch, if so requested by the DOL. NOTE: Whenever a device is removed for repair, and cannot be immediately reinstalled, a substitute device ((shall)) must be utilized. Under no circumstances ((shall)) will a manufacturer or ASP knowingly permit a restricted operator to drive a vehicle not equipped with a functioning device.

[Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-120, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-120, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-120, filed 12/9/87.]

[Statutory Authority: RCW 46.61.688(2). 05-17-065, § 204-50-130, filed 8/11/05, effective 9/11/05. Statutory Authority: RCW 46.04.215 and 46.37.005. 99-01-156, § 204-50-130, filed 12/23/98, effective 1/1/99. Statutory Authority: 1987 c 247. 88-01-020 (Order 87-05-ESR), § 204-50-130, filed 12/9/87.]

© Washington State Code Reviser's Office