Mich. Admin. Code R. 325.2655 - Techniques and procedures - evidential breath test instruments

Rule 5. A procedure that is used in conjunction with evidential breath alcohol analysis must be approved by the department and comply with the following requirements:

(a) Except as provided otherwise in these rules, evidential breath alcohol test instruments must be operated by appropriate class operators who are certified in accordance with R 325.2658.

(b) All analyses must 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 be maintained at the evidential breath alcohol test instrument location as prescribed by the department, and copies must be forwarded to the department as required.

(d) The department shall test samples from each lot of alcohol standards used in this 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 individual 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 operator 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 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 individual, but shall be close enough to be aware of the individual'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, if the individual 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 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 from the subject after the first sample is provided and analyzed by the instrument, unless an item or a substance is found in the subject's mouth after the first evidential breath sample analysis that could interfere with the result. Obtaining the first breath sample result is sufficient to meet the requirements for evidentiary purposes prescribed in section 625 c 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 second breath sample result 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

Allowable variation of second breath result range from the first 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 than allowed in either table under subdivision (g) of this rule, the operator shall request a third breath sample from the subject and a third breath sample result may be obtained. If the third breath sample result does not conform to the allowable variations of either of the first 2 tests based on the allowable variation listed in either table under subdivision (g) of this rule, the subject shall be requested to submit a blood or urine sample for analysis in accordance with the acts and the procedures established in R 325.2671 to R 325.2677.

(i) The results of an evidential breath alcohol analysis of a subject's breath 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.

(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.

Notes

Mich. Admin. Code R. 325.2655

1979 AC; 1984 AACS; 1988 AACS; 1992 AACS; 1994 AACS; 2003 AACS; 2007 AACS; 2018 AACS; 2023 MR 10, 5/22/2023