Current through Register Vol. 49, No. 9, September, 2024
SECTION I.
AUTHORITY
The following Regulations for breath alcohol ignition interlock
devices are duly adopted and promulgated by the Arkansas Department of Health
as approved by the Arkansas State Board of Health pursuant to the authority
expressly conferred by the laws of the State of Arkansas, Act 298 of 1993 as
amended, the same being Arkansas Code, Title 5, Chapter 65, Section
118.
SECTION
II.
PURPOSE AND INTERPRETATION
The purpose of these Regulations is to provide safeguards
necessary to protect the health and safety of the citizens of Arkansas by
establishing criteria for the use of Breath Alcohol Ignition Interlock
Devices.
The impact of these Regulations is directed toward the
manufacturer, service provider, and user of breath alcohol ignition interlock
devices and the Arkansas Department of Health. Contents will, of necessity,
describe interactions with the courts and the Department of Finance and
Administration, Office of Driver Services.
These Regulations shall be interpreted so as to favor the
safety of the public. References to statutory standards, regulations, or
governmental agencies shall be read as referring to and including any
amendments. In the absence of a regulation specifically addressing a particular
matter, there shall be applied reasonable, just, and equitable procedures and
substantive decisions which are predictable from the spirit and intent of the
legislative enactment and these Regulations.
Alcohol Setpoint or Fail point - The line of
demarcation between PASS and FAIL of a breath test (see Calibration
Setting).
Approval - The official endorsement of the
Department of Health or its authorized representative documenting that the
requirements of Arkansas Code §
5-65-118
as amended and these Regulations have been met (see Certification).
Breath Alcohol Ignition Interlock Device - (BAUD)
an electronic device with microcomputer logic and internal memory, having a
breath alcohol analyzer as a major component, that interconnects with the
ignition and/or other control systems of a motor vehicle for the purpose of
preventing that motor vehicle from being started if the driver has a breath
alcohol content which exceeds the preset limit (setpoint). Further, its purpose
is to deter and record attempts to circumvent or tamper with the device and to
encourage the driver to adhere to the requirements of the court.
Breath Alcohol Concentration (BrAC) - the
concentration of alcohol in the breath expressed In grams of alcohol per 210
liters of breath.
Breath Sample - a sample of breath that is
analyzed for alcohol content.
Calibration - the act of checking, verifying or
rectifying the accuracy of a device.
Calibration Setting - as described in Arkansas
Code §
5-65-118,
the calibration setting is defined in these Regulations as the "alcohol
setpoint." The alcohol setpoint shall be 0.025g of alcohol per 210 liters of
breath unless specified otherwise in writing by the court. (Act 298 of 1993
authorizes the court to establish "a specific calibration setting" in the range
of .02 through .05.)
Certification - the official endorsement
(Certificate of Approval) of the Department of Health or Its authorized
representative documenting that the requirements of Arkansas Code §
5-65-118
as amended and these Regulations have been met (see Approval).
Circumvention - an overt, conscious attempt to
bypass the ignition interlock device whether by providing samples other than
the natural unflltered breath of the driver, or by starting the vehicle without
using the ignition switch, or any other act intended to start the vehicle
without first taking and passing a breath test and/or permitting a driver with
a BrAC in excess of the alcohol setpoint to start the vehicle.
Court - the judge who sentences a person convicted
of violating Arkansas Code §
5-65-103
or other law subsequently included under the provisions of Arkansas Code §
5-65-118,
imposing the use of an ignition interlock device. This definition shall also
mean any probation officers or other officers of the court assigned to the case
of a driver using an ignition interlock
device............
Department - the Arkansas Department of
Health.
Director - the Director of Arkansas Department of
Health or designee thereof.
Driver - a motorist who has been convicted under
Arkansas Code §
5-65-103
and given a sentence which includes the requirement that he/she not operate a
motor vehicle during the time period stated 1n the court order unless the
vehicle to be operated Is equipped with a functioning and approved Ignition
Interlock device and the driver has obtained a restricted driver's license as
provided in Arkansas Code §
5-65-118.
(May also mean anyone driving a vehicle fitted with an ignition Interlock
device.)
Fall-safe - a condition 1n which the ignition Interlock device
cannot operate properly due to some problem (e.g., Improper voltage,
temperature exceeding operating range, dead sensor, etc.). In a fail-safe
condition the Ignition Interlock device will not allow the vehicle to be
started.
Lockout - a condition in which the vehicle
ignition will be completely disabled, after being given a visible and/or
audible warning for a period of 24 hours of Impending lockout. The device will
automatically disable the vehicle at a point in time when it is not 1n
operation.
Regulations (these) - all sections of Arkansas
Regulations for Breath Alcohol Ignition Interlock Devices unless otherwise
specified.
Restart - the allowance of the device for the
driver to start the vehicle without having to give a breath alcohol sample.
(This allows for a driver to restart the vehicle within two minutes and not be
penalized for or endangered by a malfunctioning vehicle.)
Rolling Retest - a subsequent breath test that
must be conducted after initial start while the motor vehicle Is In
operation.
Service Provider - an approved vendor, service
center, distributor, installer, supplier of a device.
Simulator Device - a mechanism for introducing a
simulated breath sample containing a specified concentration of alcohol to a
device Intended to measure the concentration of alcohol, for the purpose of
calibrating the measuring device.
Standard Reference - a material, such as water
containing alcohol, that is established by authority as the rule for measuring
quantity or value.
Tampering - An overt, conscious attempt to
physically disable or otherwise disconnect the Ignition interlock device from
Its power source and thereby allow a person with a breath alcohol above the
alcohol setpoint to start the engine.
SECTION
IV.
DEPARTMENT ROLE AND FUNCTIONS
A. Approval/Certification by the Department
1.
Approval. Upon the
demonstration by the manufacturer of a BAUD that said device meets the criteria
outlined In Section VI.A. and B., and that manufacturer 1s prepared to meet the
requirements outlined in Section V and Section VII, the Department may Issue a
Certificate of Approval. This does not preclude the Department from making any
additional requirements deemed necessary to carry out the Intent of the law and
these regulations.
2.
List of
Approved/Certified Devices. The Department shall maintain and
periodically, when updated, or upon request, provide to courts a 11st of those
Ignition Interlock devices and their manufacturers and approved service
providers that have been Issued a Certificate of Approval.
3.
Revocation of
Approval/Certification. Subsequent to approval, the failure of the
manufacturer to meet the requirements set forth 1n Section V or Section VII
shall result In a letter of reprimand and instructions for correction from the
Department. Failure to positively respond and correct the deficiencies to the
satisfaction of the Department within 30 days shall result In a revocation of
the Certificate of Approval of the device for use in this state.
B. Monitoring by Department
1.
Inspections by Department.
The Department shall, as a minimum, inspect each service provider of
such devices while a device Is being installed and while a monitoring visit Is
being conducted on an installed unit, at least once every six months.
2.
Testing of Device by Department.
The Department may conduct, or have conducted Independently, tests on
any of the approved Ignition Interlock devices to determine if the devices are
operating within these Regulations shall remove from the list of approved
ignition Interlock devices any device, manufacturer, or service provider not
found to be in compliance with these Regulations.
C. Public Information and Involvement
1.
Warning Label. The Department
shall provide or assure that manufacturers provide the service providers with a
warning label to affix to every unit installed In a vehicle. The warning label
shall state essentially:
2.
Complaints. The Department shall make available to users and the public
a reasonable means of filing complaints, or giving feedback about the service
provider, the device, or the misuse of such devices.
SECTION V.
MANUFACTURER/SERVICE PROVIDER
A.
Approval of Breath Alcohol Ignition Interlock Device, Manufacturer and Service
Provider
1.
Requirements for Approval
of Device. The manufacturer requesting approval/certification of a BAUD
shall submit:
a. a written application,
certifying that the device: does not impede the safe operation of a vehicle;
minimizes inconvenience to non-drinking vehicle operators; offers minimal
opportunities for bypass; works accurately and reliably in unsupervised
environments; and accurately measures the person's alcohol level;
b. a written commitment to user training,
servicing, and maintenance of the system and reporting to specified
authorities;
c. a written
commitment to provide a 24-hour toll-free telephone number for emergencies and
mechanical problems;
d. evidence of
liability insurance, in the amount of one million dollars per occurrence, with
three million dollars aggregate total. The liability Insurance shall Include
coverage for defects in product design and materials as well as in the
manufacturing, calibration, Installation, and removal of devices. The proof of
Insurance shall include a statement from the insurance company that 30 days
notice will be given to the Department before cancellation of the
Insurance.
e. evidence that the
manufacturer and service provider Indemnify and hold harmless the State of
Arkansas, the Board of Health, the Department, and Its officers, employees, and
agents from all claims, demands, actions, and costs that may arise directly or
Indirectly out of any act or omission by the manufacturer relating to the
installation, service, repair, use and removal of a device.
f. one BAUD unit, not installed in a
vehicle;
g. a verifiable report of
an independent testing laboratory indicating that the device meets or exceeds
the standards of the National Highway Traffic Safety Administration for such
devices as described in these Regulations;
h. a complete copy of the testing protocol
used by the laboratory for the testing of the device and the results
thereof.
2.
Requirements for BAUD System Approval. In order to obtain
approval/certification by the Department, the manufacturer shall comply with
the requirements in Section V.A.,B., and C, and provide, in writing to the
Department, satisfactory assurance the service provider(s) will fulfill the
requirements in Section V.C..D., and E.
B. Manufacturer Responsibilities
1.
Modifications. The
manufacturer of such device shall notify the Department, in writing, of any
material modification or alteration in the components, design or installation,
and operating instructions of any device approved for use in this state and
shall provide the Department satisfactory proof that these modifications or
alterations do not adversely affect the ability of the device to satisfy the
requirements of Section VI.A. and/or B.
2.
Mouthpieces and Parts. The
manufacturer shall provide an adequate supply of mouthpieces if required.
Service providers shall be provided an adequate inventory of parts and supplies
by the manufacturer.
C.
Calibration
1.
Requirements for
Calibration. An ignition Interlock device utilized under these
Regulations shall be calibrated at least once every 60 days using either a wet
alcohol standard or a compressed gas standard at a manufacturer approved
service provider site.
2.
Records of Calibration. The calibration records shall be
maintained by the service provider on site or 1f no longer an official site, by
the manufacturer, for a period of three years or shall be submitted to the
Department. Copies of these records shall be provided or the records shall be
made available for copying by the Department as requested. These records must
reflect all pertinent information and provide a credible account of the
condition of each device over the period of use.
3.
Required Details. Each record
shall Include:
a. the name of the person
performing the calibration;
b. the
date;
c. the alcohol value and type
of standard used;
d. the unit type
and identification number of the BAUD checked; and
e. the description of the vehicle in which
the BAUD is Installed, including license plate number, vehicle identification
number, and state, make, model, year, and
____ color. ..............................
D. Service Provider
Responsibilities
1.
Service. A
service provider shall provide the following minimum service:
a. repair and/or calibration within three
business days after service Is requested;
b. a reasonable number of installation and
service facilities within the state, with reasonable business hours;
c. access to a 24-hour toll-free telephone
number to answer questions, and to deal with mechanical problems and
emergencies related to the device.
2. Security.
a. Installation of the device must be done in
an area that is secured from unauthorized persons. Necessary precautions must
be taken to prevent accessibility of items such as tamper seals and
installation instructions and any observation of installation. Only trained,
authorized personnel and the Department inspectors shall have access to the
area during Installation, or to the instructions and seals.
b. A service provider is prohibited from
assisting or facilitating any tampering, or circumvention of a device. A
service provider may not Install a device on a vehicle owned or operated by any
of its employees.
c. Failure of a
service provider to assure complete Integrity of the interlock system shall
result in a loss of approval status for the provider.
3.
Vehicle Inspection. The
service provider shall Inspect each vehicle before Installing the device to
insure the vehicle is In a mechanical and electrical condition that will allow
the device to meet the specifications 1n Section VLB.
4.
Directions for Installation of
Devices. An ignition Interlock device utilized under these Regulations
shall be Installed by the manufacturer or by private sector service providers
in conformance with the directions of the manufacturer.
5.
Tamper Protection. The
installation of the device shall include tamper-proof hardware and/or void
seals and heat seal plastic that will provide evidence of any
tampering.
6.
Harning Label.
The service provider shall affix in a visible but unobtrusive area on or
very near the device, the Warning Label described In Section IV.C.l..
7.
Instructions to Users. At the
time of Installation, detailed operational instructions shall be given to
individuals who will be operating the vehicle. In addition to the
manufacturer's Instructions, this Information shall include a copy of these
Regulations. The driver is to be instructed to keep a copy of the court order
in the vehicle for inspection.
The service provider shall provide a copy of the record of
calibration with Instructions to the responsible driver for keeping the record
in the vehicle for Inspection by law enforcement or court officials or
representatives of the Department at the time of monitoring.
E. Monitoring of Devices
1.
Frequency of Monitoring. At
the time of the 60-day calibration, the device and vehicle shall be monitored
and a report promptly provided in a manner prescribed by the
Department.
2.
Monitoring
Report. The report shall provide a minimum of the following: name of
assigned driver, vehicle identification number, vehicle license plate number,
period of review covered in the report, a clear communication of all
inappropriate events, and a report of the pattern of vehicle use.
3.
Report of Tampering. At the
time of calibration, the device and vehicle shall be Inspected for evidence of
tampering, abuse, and for proper function. The monitoring report shall include
any fact concerning the improper operation of the device or vehicle. The
removal of the Warning Label or any other label, seal or tag shall be noted 1n
the report on this device.
F. Denial, Suspension or Revocation of
Certification/Approval of a Device
1.
Cause for Loss of Approval/Certification. The Department may deny,
suspend or revoke approval/certification of any device for any of the following
reasons.
a. Defects in design, materials, or
workmanship causing repeated failures of a device.
b. Termination or cancellation of a
manufacturer's liability insurance.
c. Discontinuance of the manufacturer's
business.
d. Voluntary request by a
manufacturer to cancel approval of a device.
e. Violation by a manufacturer or service
provider of any of the provisions of these Regulations.
f. Provision of materially false or
inaccurate information relating to a device's performance standards by a
manufacturer or service provider.
g. Modification or alteration of the
components, design or installation and operation instructions in such a way
that the requirements of Section VI.B.I. are no longer satisfied.
2.
Effective Date. A
revocation of an approval becomes effective 15 days after notification is sent
to the manufacturer by certified mail.
3.
Appeal. A manufacturer may
appeal a denial or revocation of approval. This request shall be submitted to
the Department, In writing, within 15 days of the receipt of a notice of denial
or revocation of approval.
4.
Cost of Removal and Replacement of Device. After denial or
revocation of approval, or voluntary surrender of an approval, a manufacturer
shall be responsible for any costs connected with the removal of its devices
from customers' vehicles and the Installation of another device from the
department's list of approved devices.
SECTION VI.
BREATH ALCOHOL IGNITION
INTERLOCK DEVICES
A. Criteria for
Approved Devices: Features.
The programmable features of the device shall comply to a
reasonable degree with the state's current list of acceptable features and
required driver sanctions.
B. Criteria for Approved Devices:
Capabilities.
The properly installed Ignition Interlock device shall
1. meet or exceed the standards of the
National Highway Safety Administration (N.H.T.S.A.) as published In Volume 57,
No. 67 of the Federal Register on April 7, 1992 for Breath Alcohol Ignition
Interlock Devices, as amended;
2.
not Impede safe operation of the vehicle 1n which the device 1s
Installed;
3. work reliably and
accurately In an unsupervised environment and in a fall-safe condition shall
cause the vehicle not to start;
4.
visibly and/or audibly indicate to the user or any person near the device that
a. the unit is on,
b. the unit has enabled the ignition system
of the vehicle 1n which it 1s Installed,
c. the unit Is 1n need of service or
calibration,
d. the failure of the
breath sample obtained by the device (alcohol value exceeds setpolnt), and
e. any other Indicator or signal
that may be required by the Department. The device may augment visible signals
or Indicators with audible ones approved by the Department;
5. visibly and/or audibly indicate to others
In the area when a device 1s indicating the driver has not met the requirements
for a rolling retest, 60-day calibration and maintenance, or any other required
function.
SECTION
VII.
RECORDS AND REPORTING
A. Records to be Provided by the
Manufacturer/Service Provider
1.
Service Provider Sites. Subsequent to approval of a device, the
manufacturer or designated representative shall furnish the Department with the
following Information about each service provider site immediately upon
establishing those sites: business name, owner's name, description of business,
names and qualifications of personnel trained and authorized to perform
Installations and monitoring, specific location of the business, hours of
business, telephone number, and emergency number.
2. Reports to Courts. The
manufacturer or designated representative, or the service provider shall
furnish to the sentencing court a report of all activities required to be
recorded by the device, including physical evidence of tampering or attempted
tampering and any attempts at circumvention of the ignition interlock device.
The report to the court shall include notice of any automatic lockout. These
reports shall be made as soon as possible, but not longer than two weeks after
discovery.
3.
Report to
Office of Driver Services. The manufacturer or designated
representative, or the service provider shall report to the Department of
Finance and Administration, Office of Driver Services, providing a complete
record of Installation, calibration, maintenance checks, and usage records of
any or all of their Ignition interlock devices placed in service in
Arkansas.
4.
Notice to
Department. The Office of Driver Services will notify the Department
upon discovery of any abnormality or possible infraction of these Regulations
observed concerning the use of ignition interlock devices or the Installation
or the function of these devices.
5.
Availability of Records. The
Office of Driver Services will make available to the Department any records on
ignition interlock devices not otherwise prohibited by law.
SECTION VIII.
USER/DRIVER
A. Rules for the Use of
Breath Alcohol Ignition Interlock Devices
1.
Persona] Responsibility. The owner of the vehicle in which a BAUD
is to be installed will be responsible for the cost of any repairs necessary to
get the vehicle in a condition to allow the installed device to meet the
requirements specified in Section VLB.
2.
Post Installation Inspection.
After installation of the device, an inspection should be made by the
owner and installer to insure the installation was performed properly and that
it does not interfere with the normal operation of the vehicle.
3.
Calibration Record.
Documentation of calibration shall be kept in the vehicle at all times
for inspection by a service provider, a law enforcement officer, or officer of
the court.
4.
Court Order for
Installation. A copy or the original court order shall be kept in the
vehicle for inspection by law enforcement or other appropriate
officials.
5.
Proper Use of
Device. An ignition interlock device shall be used in accordance with
the prescribed procedures of the manufacturer. These procedures shall include a
minimum 15-minute waiting period between the last drink of an alcoholic
beverage and time of blowing into the ignition interlock device. Failure of the
test shall mean the driver is above the prescribed allowable breath alcohol
concentration (alcohol setpoint).
SECTION IX.
COURT
RESPONSIBILITIES
A. Notification of
Court Order to Install Device
1.
Notice
to Office of Driver Services. The court ordering the Installation of a
BAUD shall notify the Office of Driver Services of such order.
2.
Notice to Service Provider.
The court shall contact the service provider of choice from the 11st
supplied by Arkansas Department of Health specified in Section IV.A.2.,
Identifying the driver who has been ordered to have the device Installed on his
or her vehicle. In some cases, the court may need to identify the specific
vehicle that 1s to have the device installed. The driver 1s to be given a copy
of the court order to present to the service provider.
B. Establishing the Alcohol Setpolnt
1.
Recommended Setpoint. The
court is authorized by §
5-65-118
to establish the alcohol setpolnt. The recommended level for this point Is .025
and unless otherwise specified In writing by the court, is the level that will
be used.
SEV
ERABILITY
If any provision of these Regulations or the application
thereof to any person or circumstance is held invalid, such invalidity shall
not affect other provisions or applications of the Regulations which can be
given effect without the Invalid provision or application and to this end the
provisions of these Regulations are declared to be severable.
REPEAL
All Regulations and parts of Regulations in conflict herewith
are hereby repealed.
CERTIFICATION
This will certify the foregoing Regulations were adopted by the
Arkansas
State Board of Health at a regular sessioriLof the Board held
in Little
Rock, Arkansas on the ______ day of ______, 1994 and after
a
Public Hearing on the ______ day of ______, 1994
held/ff.
Little Rock, Arkansas at the Arkansas Departme/it of/Hea>flf
BulLainjjfl
________________
Secretary
Arkansas State Board of Health
The foregoing Regulations, having been filed in my office, are
hereby in compliance with the Administrative Procedures Act 434 of 1967, as
amended, this ._____day of__________, 1994.
Jim Guy Tucker Governor
