SECTION 40:30-1-3. Breath-alcohol analysis with Board approved devices

(a)   Approved method. Analysis of breath specimens for the determination of the alcohol content therein may be accomplished by any method, technique, or instrument approved by the Board in accordance with OAC 40: 25-1-2.

(b)   Operating procedure(s). Each such analysis shall include the following steps:

(1)   Determination that the subject's mouth has no presence of any substantial loose material(s), foreign substance(s), or any such substance(s). Metal, porcelain, or hard plastic items need not be removed.

(2)   Observation of the subject whose breath is to be tested sufficient to determine that, for a period of at least fifteen (15) minutes prior to the collection of the first breath specimen, and continuing through the second breath specimen, the subject shall not have ingested alcohol in any form or any other substance, vomited, or smoked. Such observation shall be carried out by the breath-alcohol analysis Operator or by any other qualified person.

(3)   Analysis for alcohol of two (2) or more specimens of breath consisting substantially of expired alveolar air.

(4)   A blank analysis preceding analysis of each breath specimen.

(5)   Analysis of at least one control sample from a dry gas canister deployed by the agency in accordance with 40:25-1-3 to verify the calibration of the instrument at the time of the test. The results of each such control analysis must coincide with the corresponding vapor-alcohol concentration target value within plus or minus one-hundredths gram per two hundred and ten liters ( ± 0.01g/210L).

(6)   The operator performing each such analysis shall properly complete a Breath-Alcohol Analysis Record and Report form prescribed and designated by the State Director of Tests for Alcohol and Drug Influence, and shall promptly forward one (1) copy thereof to the Oklahoma Department of Public Safety, and to other agencies and persons listed on the form.

(c)   Reporting results. The results of each such breath-alcohol analysis shall be reported in terms of the concentration of alcohol in the subject's breath, in grams of alcohol per two hundred and ten liters of breath (g/210 L), truncated to two (2) decimal places. Results of duplicate breath alcohol analyses, on the same subject on the same occasion, which are within three-hundredths grams per two hundred and ten liters of breath (± 0.03g/210L) shall be deemed to be in acceptable agreement and mutually confirmatory and substantive. Results of analysis of all breath specimens shall be reported, but actions and interpretation of the results of such duplicate analyses shall be based upon the lowest such acceptable breath alcohol result obtained.

(d)   Maintenance. Maintenance shall be performed on the CMI Intoxilyzer 8000, equipped with an approved dry gas canister, at such time as the regulator of the pressurized dry gas canister fails to provide a gas sample for analysis or by the manufacturers stated expiration date, whichever occurs first. Such maintenance shall be performed by Board personnel, according to the procedure(s) prescribed by the State Director of Tests for Alcohol and Drug Influence.

[Source: Amended at 9 Ok Reg 3539, eff 7-24-92 (emergency); Amended at 10 Ok Reg 1967, eff 6-1-93; Amended at 20 Ok Reg 2254, eff 7-11-03; Amended at 24 Ok Reg 286, eff 11-1-06 (emergency); Amended at 24 Ok Reg 2682, eff 6-4-07 through 10-7-07 (emergency); Amended at 25 Ok Reg 391, eff 11-13-07 (emergency); Amended at 25 Ok Reg 1525, eff 6-12-08; Amended at 27 Ok Reg 2666, eff 8-26-10; Amended at 31 Ok Reg 778, eff 9-12-14; Amended at 36 Ok Reg 1519, eff 9-14-19; Amended at 37 Ok Reg 998, eff 9-11-20]

Note

EDITOR’S NOTE: Pursuant to 75 O.S., Section 253, the 11-1-06 emergency amendments to this Section 40:30-1-3 were scheduled to expire on 7-15-07, if not already superseded by a permanent action or by another emergency action(s) that retained the same 7-15-07 expiration date. If the emergency action expired, the text of the Section would then revert back to the permanent text that was effective prior to the 11-1-06 emergency action. As of 7-15-07, the Board had not supserseded the 11-1-06 emergency amendments with a permanent action or with another emergency action that retained the 7-15-07 expiration date. However, on 6-4-07, the Board did issue another emergency action amending this Section, but cited a later expiration date of 7-15-08. Because this Section was not amended or revoked by permanent action in 2007, the text of the Section was not reprinted in the 2007 OAC Supplement. However, the number and tagline of the Section were published, as well as annotations citing to the publication of the two emergency actions in the Oklahoma Register and the publication of the last effective permanent text of the Section in the 2006 Edition of the OAC. [See also Editor's Note below]

EDITOR’S NOTE: On 10-8-07, the Governor disapproved permanent amendments to this Section 40:30-1-3 that had been proposed by the agency to supersede the emergency amendments that became effective 6-4-07. When the Governor disapproves a proposed permanent rule, "any effective emergency rule which would have been superseded by [the] disapproved permanent rule [is] deemed null and void on the date the Governor disapproves the permanent rule" [75 O.S., § 303.2(A)(2)]. Therefore, on 10-8-07, the text of Section 40:30-1-3 reverted back to the permanent text that became effective 7-11-03, as was last published in the 2006 Edition of the OAC, and remained as such until amended again by emergency action on 11-13-07.