216 R.I. Code R. 216-RICR-60-05-1.3

Current through December 26, 2024

Section 216-RICR-60-05-1.3 - Breath Testing

1.3.1Preliminary Breath Testing

A. Approval of Breath Testing Instruments

1. Only preliminary testing instruments designed for the quantitative determination of the alcohol content of the breath and that have been tested to the satisfaction of the Director and found reliable shall be given approval by the Director and included in the list of approved instruments. The Department shall maintain the list of approved instruments and shall be available upon request.

2. Any approved instrument currently being utilized for breath testing purposes may continue to be utilized until such time as it needs to be replaced ("grandfathered"). Any new testing instrument purchased for determining the alcohol content of the breath shall appear on the Department's list of approved instruments that is in effect on the date of instrument purchase.

B. Certification of Breath Testing Operators

1. The Director shall consider applications for certification as a preliminary breath testing operator from persons who:

a. have satisfactorily completed a training course conducted by the Department determining their competency with one (1) or more types of preliminary breath testing instruments; and

b. hold a current certificate as evidentiary breath testing operators in accordance with the requirements of §1.3.2(B) of this Part.

2. Operators shall be certified for three hundred sixty-five (365) days. If an operator's certification lapses, said operator shall not function as an operator of a preliminary breath testing instrument.

3. Certificates may be revoked for just cause as determined by the Director.

C. Recertification

1. To obtain recertification, operators shall be qualified by the Director through a written examination and/or practical demonstration of competence within three hundred sixty-five (365) days of the test prescribed in R.I Gen. Laws § 31-27-2(5).

2. If re-certification as an operator has not taken place within seven hundred thirty (730) days from the last certification expiration date, the operator shall complete a course of training for preliminary breath analysis testing as approved by the Director for this purpose.

3. If an operator's certification lapses, said operator shall not function as an operator of a preliminary breath testing instrument.

D. Instrument Monitoring Program

1. The Department shall check all approved preliminary breath testing instruments at intervals not exceeding one hundred eighty (180) days to determine the accuracy of the instruments.

2. All standard alcohol solutions used for equilibration or simulation tests shall be prepared by analysts within the Forensic Sciences Section of the Department's Division of Laboratories, or purchased. If purchased, the vendor shall supply a certificate of analysis for every lot of solution supplied.

E. Administration of Breath Tests

1. Preliminary breath tests shall consist of obtaining, by using approved breath testing instruments (see §1.3.1(A) of this Part), breath samples of deep lung (alveolar) air. Such tests shall be administered:

a. by individuals certified to carry out such procedure pursuant to §1.3.1(B) of this Part;

b. in accordance with the procedures specified for each type of instrument, as prescribed by the manufacturer of each instrument and in accordance with statutory provisions; and

c. in a sanitary manner, by utilizing separate disposable mouth pieces for each test administered.

1.3.2Evidentiary Breath Testing

A. Approval of Breath Testing Instruments

1. Only evidentiary testing instruments designed for the quantitative determination of the alcohol content of the breath and that have been tested to the satisfaction of the Director and found reliable shall be given approval by the Director and included in the list of approved instruments. The list of approved instruments shall be maintained by the Department and shall be available upon request.

B. Certification of Breath Testing Operators

1. The Director shall consider applications for certification from those individuals who present evidence of satisfactory completion of a training course for breath analysis testing approved by the Director.

2. Applicants may be approved and certificates issued upon the satisfactory completion of an examination conducted by the Department. Such examination shall include written and practical demonstration of competence in one (1) or more approved methods.

3. Operators shall be certified for three hundred sixty-five (365) days. If an operator's certification lapses, said operator shall not function as an operator of an evidentiary breath testing instrument.

4. Certificates may be revoked for just cause as determined by the Director.

C. Recertification

1. To obtain recertification, the Department shall qualify operators through a written examination and/or practical demonstration of competence within three hundred sixty-five (365) days of the test prescribed in R.I. Gen. Laws § 31-27-2(5).

2. If re-certification has not taken place within seven hundred thirty (730) days from the last certification expiration date, the operator shall complete a course of training for breath analysis testing as approved by the Director.

3. If an operator's certification lapses, said operator shall not function as an operator of an evidentiary breath testing instrument.

D. Instrument Monitoring Program

1. An authorized agent of the Director shall check the accuracy of approved breath testing instruments as prescribed by R.I. Gen. Laws Chapter 31-27. The instrument shall read within +/- 0.005 or +/- 5% (whichever is greater) of the target value.

E. Administration of Breath Tests

1. Evidentiary breath samples shall be obtained, by using approved breath testing instruments (see §1.3.2(A) of this Part). Breath samples shall be collected from deep lung (alveolar) air. Collection shall be administered by individuals certified to carry out such procedure pursuant to §1.3.2(B) of this Part.

2. The following procedures shall apply:

a. A complete breath test shall consist of two (2) valid breath samples.

b. The breath samples shall be taken after the suspect has been observed for a minimum of fifteen (15) minutes to ensure that the suspect has not ingested or inserted any substance into his/her mouth, or caused any residual mouth alcohol to occur. This observation period does not require the officer or person administering the test to stare continuously at the suspect.

c. The breath samples shall be collected within fifteen (15) minutes of each other and the results reported as the alcohol level based upon grams of alcohol per two hundred ten (210) liters of breath. To be acceptable as a valid breath test, the two (2) results shall be within +/- 0.020 g/210L and taken within fifteen (15) minutes of each other. If the results of the first and second sample are more than +/- 0.020 g/210L apart, a third sample shall be analyzed.

d. To be acceptable as a valid breath test, any two (2) of the three (3) results shall be within +/- 0.020 g/210L and taken within fifteen (15) minutes of each other. In the event the person tested fails to provide the required number of valid breath samples, then this event shall constitute a refusal in accordance with R.I Gen. Laws § 31-27-2.1. If this process exceeds the allocated time, a second series may be implemented to satisfy the requirements of obtaining a valid breath test.

e. Each breath test shall be administered in accordance with the procedures for the instrument used, as prescribed by the Director.

f. When a law enforcement agency uses any approved breath analysis instrument, the accuracy of the instrument shall be tested by the internal detectors of the instrument. The result of the internal test shall be printed on the record.

g. Care shall be taken to ensure that a new and uncontaminated mouth piece is used for each breath test administered.

216 R.I. Code R. 216-RICR-60-05-1.3