Supplemental Notice to WSR 99-10-019.

Expedited Adoption--Proposed rule-making notice was filed as WSR 99-10-019.

Title of Rule: Administration of breath alcohol program.

Purpose: To correct a drafting error in an amendment to this section effective April 1, 1999 ( WSR 99-06-048). This would make permanent the emergency change adopted in WSR 99-10-018. The error has caused some confusion about the appropriate criteria for an acceptable test.

Statutory Authority for Adoption: RCW 46.61.506.

Statute Being Implemented: RCW 46.61.506.

Summary: The change makes clear that in order for breath alcohol tests conducted on or after April 1, 1999, to be admissible in judicial or administrative hearings on or after April 27, 1999, the external standard test results must be between 0.072 and 0.088. For tests conducted prior to April 1, 1999, the rules in effect at that time would apply.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Barry K. Logan Ph.D., 2203 Airport Way South, Seattle, WA 98134, (206) 464-5435.

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

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

Explanation of Rule, its Purpose, and Anticipated Effects: This adoption would make permanent a previous emergency provision ( WSR 99-10-018) that was put in place to assist with the interpretation of breath alcohol test results. This provision would otherwise have expired August 24, 1999. The change makes clear that in order for tests conducted on or after April 1, 1999, to be admissible on or after April 27, 1999, the external standard test results must be between 0.072 and 0.088. For tests conducted prior to April 1, 1999, the rules in effect at that time would apply. The anticipated effect is that any breath alcohol test conducted on or after April 1, 1999, that meets all other required criteria, and in which the external standard test result is between 0.072 and 0.088, would be admissible in administrative or judicial proceedings conducted after April 27, 1999.

Proposal Changes the Following Existing Rules: This provision corrects a drafting error in an amendment to this section effective April 1, 1999 ( WSR 99-06-048). This would make permanent the emergency change adopted in WSR 99-10-018. The error has caused some confusion about the appropriate criteria for an acceptable test.

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

RCW 34.05.328 does not apply to this rule adoption. Agency compliance not required per subsection (5)(a)(i).

Hearing Location: Washington State Toxicology Lab, 2203 Airport Way South, Seattle, WA 98134, on September 29, 1999, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Beth Bizzell by September 22, 1999, (206) 464-5435.

Submit Written Comments to: Barry K. Logan Ph.D., fax (206) 389-2738, by September 28, 1999.

Date of Intended Adoption: October 6, 1999.

August 10, 1999

Barry K. Logan Ph.D.

State Toxicologist

OTS-3336.1

AMENDATORY SECTION(Amending WSR 95-20-025, filed 9/27/95, effective 10/28/95)

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.

[Statutory Authority: RCW 46.61.506.  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.]