Okla. Admin. Code § 310:638-7-6

Current through Vol. 42, No. 4, November 1, 2024

Section 310:638-7-6 - Breath alcohol confirmation tests

(a)The breath alcohol technician.

(1) The breath alcohol technician (BAT) shall be trained to proficiency in the operation of the EBT(s) the BAT is using and in the alcohol testing procedures of this chapter.

(2) Proficiency shall be demonstrated by successful completion of a course of instruction which, at a minimum, provides the following:

(A) Training in the principles of EBT methodology, operation and calibration checks;

(B) The fundamentals of breath analysis for alcohol content; and

(C) Procedures required in this chapter for obtaining a breath sample, and interpreting and recording EBT results.

(3) Only courses of instruction for operation of EBTs that are equivalent to the United States Department of Transportation model course, as determined by the National Highway Traffic Safety Administration (NHTSA), shall be used to train BATs to proficiency.

(4) The course of instruction shall provide documentation that the BAT has demonstrated competence in the operation of the specific EBT(s) the BAT shall use.

(5) Any BAT who shall perform an external calibration check of an EBT shall be trained to proficiency in conducting the check on the particular model of EBT, to include practical experience and demonstrated competence in preparing the breath alcohol simulator or alcohol standard, and in maintenance and calibration of the EBT.

(6) The BAT shall receive additional training, as needed, to ensure proficiency, concerning new or additional devices or changes in technology that the BAT will use.

(7) The alcohol testing facility or its agent shall establish documentation of the training and proficiency test of each BAT it uses to test employees and maintain the documentation as required at OAC 310:638-7-11(a)(3).

(8) A BAT, who is a qualified supervisor of an employee, may conduct the alcohol confirmation test for that employee only if another BAT is unavailable to perform the test in a timely manner.

(9) Law enforcement officers who have been certified by state or local governments to conduct breath alcohol testing are deemed to be qualified as BATs. The officer shall have been certified by a state or local government to use the EBT that is to be used for the test.

(b)Devices for breath alcohol confirmation tests. For confirmation tests, alcohol testing facilities shall use EBTs that meet the following requirements:

(1) EBTs shall have the capability of providing, independently or by direct link to a separate printer, a printed result of each breath test;

(2) EBTs shall be capable of assigning a unique and sequential number to each completed test, with the number capable of being read by the BAT and the employee before each test and being printed out along with the test result.

(3) EBTs shall be capable of printing out the manufacturer's name for the device, the device's serial number, and the time of the test.

(4) EBTs shall be able to distinguish alcohol from acetone at the 0.02 alcohol concentration level.

(5) EBTs shall be capable of testing an air blank prior to each collection of breath; and

(6) EBTs shall be capable of performing an external calibration check.

(c)Quality assurance plans for EBTs.

(1) In order to be used in confirmation alcohol testing an EBT shall have a quality assurance plan (QAP) developed by the manufacturer.

(2) The QAP shall designate the method or methods to be used to perform external calibration checks of the device, using only calibration devices on the NHTSA "Conforming Products List of Calibrating Units for Breath Alcohol Tests."

(3) The QAP shall specify the minimum intervals for performing external calibration checks of the device. Intervals shall be specified for different frequencies of use, environmental conditions, e.g., temperature, altitude, humidity, and contexts of operation, e.g., stationary or mobile use.

(4) The QAP shall specify the tolerances on an external calibration check within which the EBT is regarded to be in proper calibration.

(5) The QAP shall specify inspection, maintenance, and calibration requirements and intervals for the device.

(6) The alcohol testing facility shall comply with the quality assurance plan for each EBT it uses for alcohol screening or confirmation testing.

(7) The alcohol testing facility shall ensure that external calibration checks of each EBT are performed as provided in the QAP.

(8) The alcohol testing facility shall take an EBT out of service if any external calibration check results in a reading outside the tolerances for the EBT specified in the QAP. The EBT shall not be used for alcohol testing until it has been serviced and had an external calibration check resulting in a reading within the tolerances for the EBT.

(9) The alcohol testing facility shall ensure that inspection, maintenance, and calibration of each EBT are performed by the manufacturer or a manufacturer's representative as required. The alcohol testing facility shall also ensure that each BAT or other individual who performs an external calibration check of an EBT has demonstrated proficiency in conducting such a check of the model of EBT in question.

(10) The alcohol testing facility shall maintain records of the external calibration checks of EBTs as required at OAC 310:6387-11(c).

(11) When the alcohol testing facility is not using the EBT at an alcohol testing site, the employer shall store the EBT in a secure space.

(d)Chain of custody. Alcohol testing facilities shall use internal chain of custody procedures to maintain control and accountability of specimens from receipt through completion of testing, reporting of results, during storage (if applicable), and continuing until final disposition of specimens. Each chain of custody/test report form shall include a unique test identification number.

(e)Procedures for confirmation tests.

(1) If the BAT conducting the confirmation test is not the person who conducted the screening test, the BAT shall follow the procedures at OAC 310:638-7-4(c)(1).

(2) The BAT shall instruct the employee not to eat, drink, put any object or substance in the mouth, and, to the extent possible, not belch during a waiting period before the confirmation test. This time period begins with the completion of the screening test, and shall not be less than fifteen (15) minutes. The confirmation test shall be conducted within twenty (20) minutes of the completion of the screening test. The BAT shall explain to the employee the reason for this requirement, i.e., to prevent any accumulation of mouth alcohol leading to an artificially high reading, and that it is for the employee's benefit. The BAT shall also explain that the test shall be conducted at the end of the waiting period, even if the employee has disregarded the instruction. If the BAT becomes aware that the employee has not complied with this instruction, the BAT shall so note in the "Remarks" section of the chain of custody/test report form.

(3) Before the confirmation test is administered for each employee, the BAT shall ensure that the EBT registers 0.00 on an air blank. If the reading is greater that 0.00, the BAT shall conduct one more air blank. If the reading is greater than 0.00, testing shall not proceed using that instrument. However, testing may proceed on another instrument.

(4) Before the confirmation test is administered for each employee, the BAT shall ensure that he or she and the employee read the sequential number displayed on the EBT and confirm that the number matches the number on the chain of custody/test report form.

(5) Any EBT taken out of service because of failure to perform an air blank accurately shall not be used for testing until a check of external calibration is conducted and the EBT is found to be within tolerance limits.

(6) An individually sealed mouthpiece shall be opened in view of the employee and BAT and attached to the EBT in accordance with the manufacturer's instructions.

(7) The BAT shall instruct the employee to blow forcefully into the mouthpiece for at least six (6) seconds or until the EBT indicates that an adequate amount of breath has been obtained.

(8) In the event that the screening and confirmation test results are not identical, the confirmation test result shall be deemed to be the final result.

(9) If the EBT provides a printed result, but does not print the results directly onto the chain of custody/test report form, the BAT shall show the employee the result displayed on the EBT. The BAT shall then affix the test result printout to the chain of custody/test report form in the designated space, using a method that shall provide clear evidence of removal, e.g., tamper-evident tape. The printout shall include the test result and the sequential number.

(10) If the EBT prints the test results directly onto the chain of custody/test report form, the BAT shall show the employee the result displayed on the EBT. The printout shall include the test result and the sequential number.

(11) The testing personnel and employee shall sign a statement included on the chain of custody/test report form certifying the performance and results of the alcohol confirmation test.

(12) If a test result printed by the EBT does not match the displayed result, the BAT shall note the disparity in the "Remarks" section. Both the employee and the BAT shall initial or sign the notation. The test shall be invalid and the employer and employee shall be so advised.

(13) The BAT shall transmit all results to the employer in a confidential manner.

(14) An employer shall designate at least one (1) employer representatives for the purpose of receiving and handling alcohol testing results in a confidential manner. All communications by BATs to the employer concerning the alcohol testing results of employees shall be to a designated employer representative. The employer shall store the information so as to ensure confidentiality is maintained.

(15) Such transmission shall be in writing, in person, or by electronic means, but the BAT shall ensure immediate transmission to the employer of results that require the employer to prevent the employee from performing a safetysensitive function.

(f)Refusal to test and uncompleted tests.

(1) Refusal by an employee to sign the certification statement, to provide breath, to provide an adequate amount of breath, or otherwise not cooperate with the testing process in a way that prevents the completion of the test, shall be noted by the BAT in the "Remarks" section of the chain of custody/test report form. The testing process shall be terminated and the BAT shall immediately notify the employer.

(2) If a confirmation test cannot be completed, or if an event occurs that invalidates the test, the BAT shall, if practicable, begin a new confirmation test, as applicable, using a new chain of custody/test report form with a new sequential test number.

(g)Inability to provide an adequate amount of breath.

(1) The following procedures shall be completed in any case in which an employee is unable, or alleges an inability, to provide an amount of breath sufficient to permit a valid breath test because of a medical condition.

(2) The BAT shall again instruct the employee to attempt to provide an adequate amount of breath. If the employee refuses to make the attempt, the BAT shall immediately inform the employer.

(3) If the employee attempts and fails to provide an adequate amount of breath, the BAT shall so note in the "Remarks" section of the chain of custody/test report form and immediately inform the employer.

(4) If the employee attempts and fails to provide an adequate amount of breath, the employer shall proceed as follows:

(A) The employer shall direct the employee to obtain, as soon as practical after the attempted provision of breath, an evaluation from a licensed physician who is acceptable to the employer concerning the employee's medical ability to provide an adequate amount of breath.

(B) If the physician determines that a medical condition has, or with a high degree of probability, could have, precluded the employee from providing an adequate amount of breath, the employee's failure to provide an adequate amount of breath shall not be deemed a refusal to take a test. The physician shall provide to the employer a written statement of the basis for this conclusion.

(C) If the physician is unable to make the determination set forth at OAC 310:638-7-6(g)(2)(i), the employee's failure to provide an adequate amount of breath shall be regarded as a refusal to take a test. The physician shall provide a written statement of the basis for this conclusion to the employer.

(h)Invalid tests. A breath alcohol test shall be invalid under the following circumstances:

(1) The next external calibration check of an EBT produces a result that differs by more than the tolerance stated in the QAP from the known value of the test standard. In this event, every test result of 0.02 or above obtained on the device since the last valid external calibration check shall be invalid;

(2) The BAT does not observe the minimum fifteen (15) minute waiting period prior to the confirmation test, as provided at OAC 310:638-7-6(e)(2);

(3) The BAT does not perform an air blank of the EBT before a confirmation test, or an air blank does not result in a reading of 0.00 prior to or after the administration of the test, as provided at OAC 310:638-7-6(e)(3);

(4) The BAT does not sign the chain of custody/test report form as required;

(5) The BAT fails to note on the "Remarks" section of the chain of custody/test report form that the employee failed or refused to sign the form following the recording or printing on, or attachment to, the form of the test result;

(6) An EBT fails to print a confirmation test result; or

(7) The sequential test number of alcohol concentration displayed on the EBT is not the same as the sequential test number of alcohol concentration on the printed result.

Okla. Admin. Code § 310:638-7-6

Added at 12 Ok Reg 517, eff 12-12-94 (emergency); Added at 12 Ok Reg 3069, eff 7-27-95