(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 state
driver licensing authority, 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 approved devices, 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 and maintenance documentation shall consist of a bench checkor
validation report, a certificate of calibration and operation, and a mock
subject test.
Notes
Okla. Admin. Code §
40:30-1-3
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)1; Amended at 24 Ok Reg 2682, eff 6-4-07
through 10-7-07 (emergency)2; 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 by
Oklahoma
Register, Volume 31, Issue 24, September 2, 2014, eff.
9/12/2014
Amended by
Oklahoma
Register, Volume 36, Issue 24, September 3, 2019, eff.
9/14/2019
Amended by
Oklahoma
Register, Volume 37, Issue 24, September 1, 2020, eff.
9/11/2020
Amended by
Oklahoma
Register, Volume 38, Issue 24, September 1, 2021, eff.
9/11/2021
Amended by
Oklahoma
Register, Volume 40, Issue 22, August 1, 2023, eff.
8/11/2023
1Pursuant 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
2 below]
2On 10-8-07, the Governor
disapproved permanent amendments 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.
