Oklahoma Administrative Code
Title 310 - Oklahoma State Department of Health
Chapter 638 - Drug and Alcohol Testing
Subchapter 7 - Alcohol Testing Facilities
Section 310:638-7-6 - Breath alcohol confirmation tests
Universal Citation: OK Admin Code 310:638-7-6
Current through Vol. 42, No. 1, September 16, 2024
(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.
Added at 12 Ok Reg 517, eff 12-12-94 (emergency); Added at 12 Ok Reg 3069, eff 7-27-95
Disclaimer: These regulations may not be the most recent version. Oklahoma may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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