DEPARTMENT OF STATE POLICE TRAFFIC SAFETY DIVISIONTRAINING DIVISION
TESTS FOR BREATH ALCOHOL Filed with the secretary of state on These rules become effectivetake effectimmediately afteruponfiling with the secretary of state unless adopted under section 33, 44, or 45a(9) of the administrative procedures act of 1969, 1969 PA 306, MCL 24.233, 24.244, or 24.245a. Rules adopted under these sections become effective 7 days after filing with the secretary of state.
(By authority conferred on the department of state police by section 190 of the Aeronautics code of the state of Michigan, 1945 PA 327, MCL 259.190, and section 625a of the Michigan vehicle code, 1949 PA 300, MCL 257.625a) R 325.2651, R 325.2652, R 325.2653, R 325.2655, and R 325.2658 of the Michigan Administrative Code are amended, R 325.2656a, R 325.2657a, and R 325.2659 are added, and R 335.2654 is rescinded, as follows:
Rule 1. (1) As used in these rules:
(a) "Acts" means the Aeronautics code of the state of Michigan, 1945
PA 327, MCL 259.1 to 259.208; the Michigan vehicle code, 1949 PA 300, MCL 257.1
to 257.923; the railroad code of 1993, 1993 PA 354, MCL 462.101 to 462.451; and
the natural resources and environmental protection act, 1994 PA 451, MCL 324.101
to 324.90106. means
1945 PA 327, MCL 259.190, 1949 PA 300, MCL 257.625a, 1993 PA 354, MCL 462.359,
1994 PA 451, MCL 324.80181, MCL 324.81136, and MCL 324.82137.
(b) "Alcohol standard" means a certified alcohol standard.
(c) "Calendar
month" means 12:01 a.m. on the first date of any of the 12 named months of
the year to midnight on the last date of the same month.
(d)(c) "Calendar
week" means 12:01 a.m. Sunday to midnight Saturday.
(e)(d) "Class"
means a classification of operator status as certified by the department, based
on training and function as specified in R 325.2658. “Certified” means
the operator completed the required training and possesses a certificate of
training.
(f)(e) "Department"
means the department of state police. "Class" means a classification
of operator status as certified by the department, based on training and
function as specified in R 325.2658.
(g)(f) "Equipment"
means evidential and preliminary breath alcohol test instruments, simulator devices,
calibration stations, forms, and any accessories and supplies necessary for compliance
with the procedures in these rules or law. “Class I operator”
means an operator certified to conduct a subject test with a preliminary breath
testing instrument.
(h)(g) "Evidential
breath alcohol analysis" means chemical analysis of an essentially alveolar
breath sample that indicates a specific result in grams of alcohol per 210
liters of breath. “Class II operator” means an operator
certified to calibrate a preliminary breath testing instrument.
(i)(h) "Evidential
breath alcohol test instrument" means an evidential breath testing device
that indicates a specific result in grams of alcohol per 210 liters of breath.
“Class
III operator” means an operator certified to conduct a subject test with an
evidential breath testing instrument.
(j)(i) "Preliminary
breath alcohol analysis" means chemical analysis of essentially alveolar
breath samples that indicates the presence or absence of alcohol in a person's
blood. “Class
IVA operator” means an operator certified to instruct the class I, II, and III
certification courses.
(k)(j) "Preliminary
breath alcohol test instrument" means a breath alcohol screening device
that indicates the presence or absence of alcohol in a person's blood. “Class IVB operator”
means an operator certified to calibrate and repair an evidential breath
testing instrument.
(f)(k) "Department"
means the department of state police.
(g)(l)
"Equipment" means evidential and preliminary breath alcohol test instruments,
simulator devices, calibration stations, forms, and any accessories and
supplies necessary for compliance to comply with the
procedures in these rules or law.
(h)(m) "Evidential
breath alcohol analysis" means chemical analysis of an essentially
alveolar breath sample that indicates a specific result in grams of alcohol per
210 liters of breath.
(i)(n) "Evidential
breath alcohol test instrument" means an evidential breath testing device that
indicates a specific result in grams of alcohol per 210 liters of breath.
(j)(o) "Preliminary
breath alcohol analysis" means chemical analysis of essentially alveolar
breath samples that indicates the presence or absence of alcohol in an individual’s person's blood.
(k)(p) "Preliminary
breath alcohol test instrument" means a breath alcohol screening device
that indicates the presence or absence of alcohol in an individual’s person's
blood.
(l)(r) "Shall"
means that a function is mandatory.
(m)(s) "Should"
means that a function is recommended, but not mandatory, with reasonable
deviation allowed.
(2) Terms used in the acts have the same meanings when used in these rules.
R 325.2652 Approved equipment.
Rule 2. (1) Except as provided in subrule (2) of this rule,Evidential evidential and
preliminary breath alcohol test instruments must shall be
tested by, and shall meet the existing model specifications for evidential
breath alcohol analysis as established by, the United States Department of Transportation, National Highway Traffic
Safety Administration. The specifications are identified as “Model Specifications
for Devices to Measure Breath Alcohol” 49 FR 48855 et seq., (December 14,
1984),
as
amended by 58
FR 48705, (September 17, 1993), as amended by 82 FR 50940 et seq., (November
2, 2017) 62
FR 43416 et seq., (August 13, 1997), 69 FR 42237 et seq., (July 14, 2004), 71
FR 37159 et seq., (June 29, 2006), 72 FR 71480 et seq., (December 17, 2007), and FR Doc. 2012-14582
(June 14, 2012),
and are adopted in
these rules by reference. A copy Copies of the
specifications and a current conforming products list are available from the United States U.S.
Department of Transportation, National Highway Traffic Safety Administration,
1200 New Jersey Avenue SE, Washington, D.C. 20590 , and its website at nhtsa.gov, or from the
Michigan State Police, Training Division Records Resource
Section,
7150 Harris Drive, P.O. Box 30634, Lansing, MI, 48909 , and its website at www.michigan.gov/msp/services/foia.
A fee of $1.00 may be charged for each requested copy. A copy of the specifications
and conforming products list may be inspected at the Michigan State Police,
Training Division, 7426 N Canal Road, Lansing, MI, 48913 during normal business
hours.
(2) If the United
States Department of Transportation discontinues
the testing of evidential breath alcohol test instruments or the issuance of model
specifications for
that test
such testing, only those instruments tested and approved by the
department can shall be used.
(3) An
application for equipment approval shall must be submitted to
the department.
(4) Only Operators shall
only use equipment
approved by the department for evidential and preliminary breath alcohol analysis. shallbe utilized
by operators.
R 325.2653 Equipment accuracy evidential breath test instruments.
Rule 3. (1) For evidential breath
test instruments that do not examine a known standard with each subject test, an
An appropriate class operator who has been certified in
accordance with R 325.2658 shall verify an evidential breath alcohol test instrument
for accuracy at least once each calendar week, or more frequently as the
department may require. Alternatively, a pre-programmed self-test for accuracy
may be initiated by the evidential breath alcohol test instrument and recorded
by an appropriate class operator who has been certified in accordance with R
325.2658, if the instrument
is so equipped and programmed. The tests for accuracy are not required to be
performed within 7 days of each other. The test for accuracy must shall be
made using an alcohol standard that is approved by the department. For the
evidential breath alcohol test instrument to meet the requirements for accuracy,
a test result must not exceeding
exceed +/- 5% shall be obtained
when using a controlled device. Controlled devices include both of the following:
(a) A Wwet bath device that
delivers an alcohol vapor concentration test result of .080 0.080 grams of alcohol
per 210 liters of vapor.
(b) A Ccompressed alcohol
gas device that delivers a test result of .080 0.080 grams of alcohol
per 210 liters of vapor before applying applicable barometric pressure correction.
To meet this requirement, the instrument must analyze the known ethanol gas standard
within +/- 5% of the adjusted , or corrected alcohol concentration ,
based on the barometric correction.after applying applicable altitude or
topographic elevation correction factor supplied by the manufacturer. The
correction factor may be applied by the operator or by the evidential breath
alcohol test instrument if so pre-programmed.
(2) A weekly test is
not required for evidential breath test instruments that examine a known alcohol
standard, either wet bath or compressed gas, with each test subject. If an
accuracy check is conducted, then the results must be retained either in log
form by the agency where the instrument is installed or electronically within
the instruments memory. An appropriate class operator who has been
certified in accordance with R 325.2658 shall verify for accuracy a preliminary
breath alcohol test instrument at least monthly, or more frequently as the
department may require. The test for accuracy shall be made using an alcohol standard
that is approved by the department. For the preliminary breath alcohol test
instrument to meet the requirements for accuracy, a test result not exceeding
+/- 5% shall be obtained when using a controlled device. Controlled devices
include both of the following:
(a) Wet bath device
that delivers an alcohol vapor concentration of .080 grams of alcohol per 210
liters of vapor.
(b) Compressed alcohol
gas device that delivers a test result of .080 grams of alcohol per 210 liters
of vapor after applying applicable altitude or topographic elevation correction
factor supplied by the manufacturer. The correction factor may be applied by
the operator or by the preliminary breath alcohol test instrument calibration
station if so pre-programmed.
(3) Approved evidential
breath alcohol test instruments that do not examine a known alcohol
standard with each test subject must shall be inspected, verified for
accuracy, and certified as to their proper working order within 120 days after of the
previous inspection by either an appropriate class operator who has been certified
in accordance with R 325.2658, or a manufacturer-trained representatives
approved by the department.
(4) Approved evidential breath alcohol test instruments that examine a known alcohol standard with each subject test must be inspected, verified for accuracy, and certified as to their proper working order not less than 2 times annually by either an appropriate class operator who has been certified in accordance with R 325.2658, or a manufacturer-trained representative approved by the department.
R 325.2654 Rescinded. Equipment
repair and service.
Rule 4. (l) The repair and service of
equipment approved by the department for evidential and preliminary breath
alcohol analysis shall be at the expense of the agency using the equipment.
The department or the agency using the equipment may arrange to have this
service provided either by an appropriate class operator who has been certified
in accordance with R 325.2658 or a manufacturer-trained authorized representatives
approved by the department.
(2) After repair or service and before being placed in service, evidential and preliminary breath alcohol test instruments shall be verified for accuracy in accordance with the provisions of R 325.2653 and records of verification shall be kept as required by the department.
R 325.2655 Techniques and procedures – evidential breath test instruments.
Rule 5. (1)
A procedure that is used in conjunction with evidential breath alcohol analysis
must
shall be approved by the
department and shall comply with the be in compliance
with all of the following
requirements: provisions:
(a) Except as
provided otherwise in these rules, evidential breath alcohol test instruments must shall only
be operated by appropriate class operators who are have been certified
in accordance with R 325.2658.
(b) All
analyses must
shall be conducted
following procedures approved by the department and using forms approved by the
department, as required.
(c) Records of
operation, analyses, and results must shall be maintained at the evidential
breath alcohol test instrument location as prescribed by the department, and copies must be copies forwarded to the
department as required.
(d) The
department shall test samples from each lot of alcohol standards used in this the state, in conjunction with
evidential breath alcohol test instruments. The department shall certify for
use those lots of alcohol standards that are found to be proper in chemical
composition.
(e) An person individual may shall be administered
an evidential breath alcohol analysis on an evidential breath alcohol test
instrument only after being observed for not less than 15 minutes before
collection of the breath sample by at least 1 appropriate class operators
who that is certified in
accordance with R 325.2658. The observation period may be conducted by more than
1 operator working in concert. During the observation period, the person
individual shall not have
smoked, regurgitated, or placed anything in his or her mouth, except for the
mouthpiece associated with the performance of the evidential breath alcohol
analysis. The operator need not stare continuously at the person individual, but shall must be
close enough to be aware of the individual’s person's
actions and conditions. The operator may complete paperwork, enter data into the
evidential breath alcohol test instrument, or conduct other reasonable tasks
during the observation period, provided if the individual person is
within the operator's field of vision. Breaks in the observation period lasting
only a few seconds do not invalidate the observation if the operator can
reasonably determine that the individual person did
not smoke, regurgitate, or place anything in his or her mouth during the breaks
in the observation.
(f) The
operator shall request a second evidential breath sample alcohol from
the subject
after the first sample is provided and analyzed by the instrument, unless an
item person
being tested and administered, unless the person refuses to give the second breath
sample
or a substance is found in the subject’s person's mouth after subsequent to
the first evidential breath alcohol sample analysis that could
interfere with the breath sample result. Obtaining the first breath
sample result is sufficient to meet the requirements for evidentiary purposes
prescribed in section 625c of the Michigan vehicle code, 1949 PA 300, MCL
257.625c. The purpose of obtaining a second breath sample result is to confirm
the result of the first breath sample result.
(g) For
instruments reporting 2 digits after the decimal, a A second
breath sample result shall must not vary from the first breath sample
result by more than the allowable variation listed in Table 1. Tables 1 and 2
read as follows:
Table 1
Breath alcohol allowable Allowable variation of
second breath sample result range from the first breath sample
result.
First Sample Allowable variation
0.00 - 0.14 +/- 0.01
0.15 - 0.24 +/- 0.02
0.25 - 0.34 +/- 0.03
0.35 - or more +/- 0.04
For instruments reporting 3 digits after the decimal, the second breath sample result must not vary from the first sample result by more than the allowed variation listed in Table 2.
Table 2
Allowable variation of second breath sample result from the first breath sample result.
First Sample Allowable Variation
0.000 - 0.149 +/- 0.010
0.150 – 0.249 +/- 0.020
0.250 – 0.349 +/- 0.030
0.350 or more +/- 0.040
(h) If the variation is more thanthatallowed in either table under subdivision (g) of this rule,Table 1the operator shall request a third breath sample from the subjectperson being testedand a third breath sample result may be obtained. If the third breath sample result does not conform to the allowablevariationvariations of either of the first 2 tests based on the allowable variation listed in either table under subdivision (g) of this rule, the subjectin Table 1 of either of the first 2 tests, the personshall be requested to submit a blood or urine sample for analysis in accordance with the actsMCL 257.625aand the procedures established in R 325.2671 to R 325.2677.
(i) (g) The
results of an evidential breath alcohol analysis of a person's subject’s breath shall
must be expressed in
terms of grams of alcohol per 210 liters of breath, truncated to the second
decimal place or
expressed to 3 decimals if the instrument is programed to do so. For example,
0.237 found shall be reported as 0.23.
(j) If the instrument analyzes a known ethanol standard during a subject’s breath test, the results of that analysis must be no lower than 0.074 g/210L and no higher than 0.084 g/210L of the nominal value of the standard. If the analysis is not within the prescribed standard the instrument must abort the test indicating the ethanol standard was not within the required range. The operator may attempt additional tests.
(2) A procedure
that is used in conjunction with preliminary breath alcohol analysis must be approved
by the department and shall be in compliance with all of the following provisions:
(a) Except as provided
otherwise in these rules, preliminary breath alcohol test instruments shall
only be operated by appropriate class operators who have been certified in
accordance with R 325.2658
(b) A person may
be administered a preliminary breath alcohol analysis on a preliminary breath
alcohol test instrument only after the operator determines that the person has
not smoked, regurgitated, or placed anything in his or her mouth for at least
15 minutes.
(c) Records shall
be maintained at the preliminary breath alcohol test instrument location as
prescribed by the department and copies shall be forwarded to the department as
required.
(3) A person's welfare shall be protected by
requesting medical assistance if the result of the evidential or preliminary
breath alcohol analysis is 0.35 or more. Failure to request medical assistance
does not affect the validity or evidential value of the result of an evidential
or preliminary breath alcohol analysis.
R 325.2656a Equipment Accuracy – Preliminary Breath Test Instrument.
Rule 6a. An appropriate class operator who has been certified in accordance with R 325.2658 shall verify for accuracy a preliminary breath alcohol test instrument at least monthly, or more frequently as the department may require. The test for accuracy must be made using an alcohol standard that is approved by the department. For the preliminary breath alcohol test instrument to meet the requirements for accuracy, a test result not exceeding +/- 5% must be obtained when using a controlled device. Controlled devices include both of the following: (a) A wet bath device that delivers an alcohol vapor concentration of 0.080 grams of alcohol per 210 liters of vapor. (b) A compressed alcohol gas device that delivers a test result of 0.080 grams of alcohol per 210 liters of vapor before applying applicable altitude or topographic evaluation correction factor supplied by the manufacturer. The correction factor may be applied by the operator or by the preliminary breath alcohol test instrument calibration station, if pre-programmed. R 325.2657a Techniques and Procedures – Preliminary Breath Test Instruments.Rule 7a. (1) A procedure that is used in conjunction with preliminary breath alcohol analysis must be approved by the department and comply with all of the following:
(a) Except as provided otherwise in these rules, preliminary breath alcohol test instruments must only be operated by appropriate class operators who have been certified in accordance with R 325.2658.
(b) An individual may be administered a preliminary breath alcohol analysis on a preliminary breath alcohol test instrument only after the operator determines that the individual has not smoked, regurgitated, or placed anything in his or her mouth for not less than 15 minutes.
(c) Records must be maintained at the preliminary breath alcohol test instrument location as prescribed by the department and copies must be forwarded to the department as required.
(2) An individual’s welfare must be protected by requesting medical assistance if the result of the evidential or preliminary breath alcohol analysis is 0.35 or more. Failure to request medical assistance does not affect the validity or evidential value of the result of an evidential or preliminary breath alcohol analysis.
R 325.2658 Operator training and certification.
Rule 8. (1) The
department shall train and certify personnel of law enforcement agencies to
perform various functions as described in this rule, and shall designate
those
such individuals persons as
class I, class II, class IIIA, class IIIB, class IVA, or class
IVB operators. An operator may hold multiple and concurrent classifications. Operator
certification is non-expiring. To maintain a class III certification,
each class III operator certified after January 1, 2022 is required to re-certify
every 2 years. Class III operators certified before January 1, 2022 are
required to recertify before December 31, 2023, and every 2 years after that.
Any class III operator who fails to re-certify before the current certification
expires is required to attend and successfully complete the class III operator training
as detailed in R 325.2658(2)(c). An operator whose certification has lapsed can
testify about incidents that occurred during their valid certification period.
(2) The minimum training requirements and proficiency standards for operator certification are as follows:
(a) A class I
operator shall complete a class I training course approved by the department, and obtain a minimum
score of 70% on a written examination administered by the department. An individual that
fails the examination is provided an opportunity to retake the written examination.
An individual that fails the second attempt to pass the written examination shall
retake the class I training course and successfully pass the examination to qualify
for the class I certification. And demonstrate proficiency in the operation
of a preliminary breath alcohol test instrument to the department. The department
shall provide a person who fails to pass the written examination or demonstrate
the required proficiency a second opportunity to take the written examination
or demonstrate the required proficiency. A person who fails on his or her
second opportunity to successfully pass the written examination or demonstrate
the required proficiency must retake the class I training course, successfully pass
the written examination, and demonstrate the required proficiency, in order to
qualify for class I operator certification.
(b) A class II
operator shall complete a class II training course approved by the department, and obtain a minimum score
of 70% on a written examination administered by the department. An individual
that fails the examination is provided an opportunity to retake the written examination.
An individual that fails the second attempt to pass the written examination shall
retake the class I training course and successfully pass the examination to
qualify for the class II certification. And demonstrate proficiency in the
operation of an evidentiary breath alcohol test instrument to the department.
The department shall provide a person who fails to pass the written examination
or demonstrate the required proficiency a second opportunity to take the
written examination or demonstrate the required proficiency. A person who fails
on his or her second opportunity to successfully pass the written examination
or demonstrate the required proficiency must retake the class II training
course, successfully pass the written examination, and demonstrate the required
proficiency, in order to qualify for class II operator certification.
(c) A class IIIA
III
operator
shall be currently certified as a class I II operator,
complete a class IIIA III training course approved by the
department, obtain a minimum score of 70% on a written examination administered
by the department, and demonstrate proficiency in the use of an evidential
breath testing instrument. verification and calibration of a preliminary
breath alcohol test instruments to the department. An individual that
fails the examination or fails to demonstrate the required proficiency is
provided an opportunity to retake the written examination or demonstrate the
required proficiency. An individual that fails the second attempt to pass the
written examination or fails to demonstrate the required proficiency shall retake
the class III training course and successfully pass the written examination and
demonstrate the required proficiency to qualify for the class III certification. The department
shall provide a person who fails to pass the written examination or demonstrate
the required proficiency a second opportunity to take the written examination
or demonstrate the required proficiency. A person who fails on his or her
second opportunity to successfully pass the written examination or demonstrate
the required proficiency shall be required to retake the class IIIA training
course, successfully pass the written examination, and demonstrate the required
proficiency in order to qualify for class IIIIA operator certification.
(d) A class IIIB
IVA
operator
shall be currently certified as a class II III operator, and complete a class IIIB
IVA training course
approved by the department., obtain a minimum score of 70% on a written
examination administered by the department, and demonstrate proficiency in the
limited service of an evidentiary breath alcohol test instruments to the
department. The department shall provide a person who fails to pass the
written examination or demonstrate the required proficiency a second opportunity
to take the written examination or demonstrate the required proficiency. A
person who fails on his or her second opportunity to successfully pass the
written examination or demonstrate the required proficiency shall be required
to retake the class IIIB training course, successfully pass the written examination,
and demonstrate the required proficiency in order to qualify for class IIIB
operator certification.
(e) A class IVA
IVB
operator
shall be currently certified as a class III IVA operator. Before class IVB certification,
the class IVB
operator shall receive additional
training in the repair and service of evidential breath instruments from the
manufacturer of the instruments or by a current class IVB operator, if the
manufacturer is unavailable for training. complete a class IVA training course
approved by the department, and demonstrate proficiency instructing class II and
class IIIA operator training courses approved by the department. The
department shall provide a person who fails to demonstrate the required
proficiency a second opportunity to demonstrate the required proficiency. A
person who fails on his or her second opportunity to demonstrate the required
proficiency shall be required to retake the class IVA training course and demonstrate
the required proficiency in order to qualify for class IVA operator certification.
(f) A class IVB
operator shall be currently certified as a class IVA operator that has been
designated by the department to administer the breath alcohol testing program
for the state of Michigan. Before class IVB designation, the class IVB
operator shall receive additional training in the repair and service of
evidential and preliminary breath alcohol test instruments by the manufacturer
of such instruments.
(3) The department shall develop and distribute to each certified operator a training manual for each of the operator's classifications. Training manuals must specify the functions performed by each class pursuant to this rule, as well as the knowledge and skills necessary to perform the appropriate functions.
(4) The primary
functions of each class are described in Table 23. Additional
functions not described in Table 23 may be designated by the department and
described and explained in the appropriate training manual.
(5) A person who
An
individual that
meets the training requirements and proficiency standards for operator certification
in accordance with this rule shall be is issued a certificateion card for the appropriate
class by the department. The certificateion card shall must remain the property
of the department.
(6) A class I,
class I II, class IIIA
III, class IIIB,
class IVA, and class IVB operator shall comply with all applicable department
rules, policies, and procedures or the department may suspend his or her operator
certification. A person whose operator certification has been suspended by
the department shall return his or her certification card to the department within
7 days of receiving notice of the suspension. An individual person shall may make a request for
reinstatement of operator certification to the department in writing and, upon
after approval, the
department may require the individual person to complete an operator
training class, pass a written examination,
and/or demonstrate required proficiency, or any combination thereof.
(7) The requirements for each class of operators are included in Table 3 as follows:
Table 2 3
OPERATOR FUNCTION OPERATOR
CLASS
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R 325.2659 Equipment Repair and Service.Rescinded.
Rule 9. (1) The repair and service of equipment provided by the department for evidential and preliminary breath alcohol analysis must be at the expense of the agency using the equipment. (2) The department or the agency using the equipment may arrange to have this service provided either by an appropriate class operator who has been certified in accordance with R 325.2658 or a manufacturer-trained authorized representative approved by the department. (3) After repair or service and before being placed in service, evidential and preliminary breath alcohol test instruments must be verified for accuracy in accordance with R 325.2653. Records of verification must be maintained as required by the department.