WSR 17-17-081 EXPEDITED RULES WASHINGTON STATE PATROL [Filed August 16, 2017, 1:30 p.m.] Title of Rule and Other Identifying Information: Foreign substances, interference, and invalid samples, WAC 448-16-040. Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed changes to WAC 448-16-040 will reflect the update to RCW 46.61.506 by removing the requirement that piercings be removed prior [to] conducting a breath test. (RCW 46.61.506 specifically excludes piercings as a foreign object for the purposes of an evidential breath test effective July 23, 2017.) Reasons Supporting Proposal: The update will bring WAC in line with the new statutory requirements. Statutory Authority for Adoption: RCW 43.61.506. Statute Being Implemented: RCW 43.61.506. Rule is not necessitated by federal law, federal or state court decision. Name of Agency Personnel Responsible for Drafting: Lieutenant Rob Sharpe, 811 East Roanoke Street, Seattle, WA 98102, 206-720-3018; Implementation and Enforcement: Washington State Patrol, P.O. Box 42600, Olympia, WA 98504-2600, 360-596-4000. This notice meets the following criteria to use the expedited adoption process for these rules:
Content is explicitly and specifically dictated by statute. Explanation of the Reason the Agency Believes the Expedited Rule-making Process is Appropriate: RCW 46.61.506 specifically excludes piercings as foreign objects for the purposes of an evidential breath test. NOTICE THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Sara Staab, Washington State Patrol, P.O. Box 42600, Olympia, WA 98504-2600, phone 360-596-4017, email Sara.Staab@wsp.wa.gov, AND RECEIVED BY October 23, 2017. August 15, 2017 John R. Batiste Chief
AMENDATORY SECTION (Amending WSR 16-21-025, filed 10/10/16, effective 11/10/16)
WAC 448-16-040 Foreign substances, interference, and invalid samples.
(1) A determination as to whether a subject has a foreign substance in his or her mouth will be made by either an examination of the mouth or a denial by the person that he or she has any foreign substances in their mouth. A test mouthpiece is not considered a foreign substance for purposes of RCW 46.61.506.
(2) ((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 to remove the jewelry or ornamentation, they will be deemed to have a physical limitation rendering them incapable of providing a valid breath sample.
(3))) If during a breath test, interference is detected, this will invalidate the test. The subject will be required to repeat the test. A subject whose breath registers the presence of interference on two or more successive breaths shall be deemed to have a physical limitation rendering them incapable of providing a valid breath sample.
(((4))) (3) In the event that the instrument records an "invalid sample" result at any point during the subject's test, that subject's test should be readministered, after again determining that the subject has no foreign substance in their mouth as outlined in WAC 448-16-040(1), and repeating the fifteen minute observation period.
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