Rules for Breath Tests
5 CCR 1005-2
4.1 Purpose and Scope
4.1.1 Part 4 establishes minimum standards for certification and approval of entities and processes used for breath alcohol testing using the certified EBAT instrument approved by the Department.
4.2 Evidential Specimen Collection
4.2.1 Breath
4.2.1.1 Evidential breath specimens must be analyzed using a certified EBAT instrument approved by the Department. Approval or disapproval of EBAT instruments will be based on scientific standards of performance established by the Department and approved by the Colorado Board of Health.
4.2.1.2 The Department must certify each EBAT instrument initially and annually thereafter.
4.2.1.3 The Department must issue a certificate for each certified EBAT instrument after initial certification and after each annual certification. The certificate must reflect the approved facility name, the certified EBAT instrument serial number and the inclusive dates for the certification period. The certificate for EBAT instruments placed in approved mobile EBAT facilities must also include the vehicle identification number.
4.2.1.4 An evidential breath alcohol test specimen must only be collected and tested by certified EBAT operators or instructors using a certified EBAT instrument and following the steps outlined in these regulations.
4.2.1.5 Breath specimens consisting of end-expiratory alveolar air are analyzed to determine the ethyl alcohol concentration.
4.2.1.6 Unless otherwise provided by law, at the request of the subject, the subject must be given a choice of which type of evidential chemical test they wish to take to
determine the alcohol concentration in their body (evidential breath alcohol test or evidential blood alcohol test) or they may refuse to take either evidential chemical test. Nothing in this regulation is intended to exempt or exonerate an individual from the penalties proscribed in Sections 42 42-4-1301.1 and 42-4-1301.2, C.R.S, or any other relevant law, for the failure to submit to such test.
4.3 Methods of Analysis
4.3.1 Alcohol in Evidential Breath Specimens
4.3.1.1 The certified EBAT operator or instructor must follow the procedures specified in these regulations for evidential breath alcohol tests.
4.3.1.2 The certified EBAT operator or instructor must document compliance with these testing procedures by completion of the Department’s checklist form, which is available in Appendix 2A of these regulations or on the Department’s website.
4.3.1.2.1 Information included in Steps 1 through 7 of Appendix 2A must not be changed in any way.
4.3.1.2.2 Steps 1 through 7 must be performed in the order listed.
4.3.1.2.3 A completed evidential breath alcohol test (EBAT) is one in which the checklist (Appendix 2A) is followed and a printout without error messages is obtained.
4.3.1.3 The certified operator or instructor conducting the EBAT must initial inside the parentheses to the left of each step (1 through 7). Initialing each step indicates that step is properly performed and completed.
4.3.1.4 Step 1. “Turn power button on or observe the power button has been activated. If the certified EBAT instrument is in the standby mode, press the start test button.”
4.3.1.4.1 Certified EBAT instrument(s) at approved EBAT facilities must always be powered on. This is indicated by the small red light below the power button being illuminated.
4.3.1.4.2 When the certified EBAT operator or instructor first enters the EBAT room he/she shall determine if the certified EBAT instrument is in the standby mode. The certified EBAT instrument is in the standby mode if the display is blank, the small red light under the power button is lit and the simulator display reads “idle.”
4.3.1.4.3 If the certified EBAT instrument is in the standby mode, press the START TEST button.
4.3.1.4.4 If the certified EBAT instrument is in the ready mode, (when the instrument display is scrolling or flashing and the simulator display is lit), proceed to Step 2.
4.3.1.5 Step 2. “The subject must remove foreign objects from the nose and mouth including removable dentures. The subject must be closely and continuously observed for 20 minutes prior to testing to ensure no belching, regurgitation or intake of any foreign material by nose or mouth has occurred. If such occurs,
another 20 minutes of close and continuous observation must elapse under the same conditions.”
4.3.1.5.1 Check the subject for foreign objects in the nose or mouth including dentures. There are two types of dentures, permanent and removable. Permanent dentures are typically anchored to the mouth and cannot be removed. Permanent dentures need not be removed. They will not interfere with the results obtained during the EBAT. Removable dentures are typically held in place by an adhesive and must be removed.
4.3.1.5.2 During the 20-minute observation period the certified EBAT operator or instructor must be close enough to the subject to detect any belching, regurgitation or intake of foreign material.
4.3.1.5.3 When belching, regurgitation or intake of foreign material is detected during the 20-minute observation period, the certified EBAT operator or instructor must start the observation period over again. A new checklist (Appendix 2A) must be filled out for this test.
4.3.1.5.4 The observation period must be conducted at the approved EBAT facility by a certified EBAT operator or instructor .
4.3.1.5.5 The observation period must not be conducted in the patrol car while driving to the approved EBAT facility.
4.3.1.5.6 Start and stop times for the observation period must be recorded from the certified EBAT instrument clock or the facility dispatch clock, when the EBAT instrument has been synchronized with the facility dispatch clock.
4.3.1.6 Step 3. “Verify that the external breath tube and simulator vapor tube are both warm.”
4.3.1.6.1 Touch the external breath tube to ensure that it is warm.
4.3.1.6.2 Touch the simulator vapor tube to ensure that it is warm.
4.3.1.6.3 If either tube is cold to the touch, stop the test and call a certified EBAT instructor for assistance.
4.3.1.7 Step 4. “Observe the simulator temperature is between 33.8 degrees Centigrade and 34.2 degrees Centigrade.”
4.3.1.7.1 Allow the simulator to equilibrate for a minimum of ten (10) minutes after reaching the correct temperature when it has been in standby mode or is first turned on.
4.3.1.8 Step 5. “Press the start test button.”
4.3.1.8.1 Press the green start test button to initiate the automated test sequence.
4.3.1.9 Step 6. “Follow the instructions and sequence of events as they appear on the certified EBAT instrument display.”
4.3.1.9.1 A system blank(s) analysis must be used during the test sequence of each evidential breath alcohol test.
4.3.1.9.2 For each EBAT, Department-certified reference standard(s) of known ethanol concentration must be analyzed. The results of such analysis must agree with the reference standard(s) target value (s) of 0.100 grams of alcohol/210 liters of breath within ±10% (0.090 – 0.110 grams of alcohol/ 210 liters of breath).
4.3.1.9.3 The results of analyzing more than one reference standard of the same value for each EBAT must agree with each other within ±10%.
4.3.1.9.4 If the ±10% calibration correlation is not obtained, the instrument will abort the test and print a “No Calibration Correlation” error message.
4.3.1.9.5 For each EBAT, the results of the two subject breath alcohol tests must agree with each other within 0.020 grams of alcohol/210 liters of breath.
4.3.1.9.5.1 If the 0.020 grams of alcohol/210 liters of breath correlation is not obtained, the instrument will abort the test and print a “NO .02 Agreement” error message.
4.3.1.9.5.1.1 When a “NO .02 Agreement” error message is obtained, the certified EBAT operator or instructor must perform the EBAT test procedure over again after another 20-minute observation period. A new checklist (Appendix 2A) must be filled out for this test.
4.3.1.9.6 The certified EBAT operator or instructor must be close enough to the subject to detect any belching, regurgitation or foreign material in the mouth or nose from the time the EBAT is started through the completion of the second breath sample.
4.3.1.9.6.1 Whenever belching, regurgitation or foreign material is detected in the mouth or nose from the start of the EBAT through completion of the second breath sample, the certified operator or instructor must choose the Non-Compliance option to abort the test. The certified EBAT operator or instructor must perform the test procedure over again after another 20-minute observation period. A new checklist (Appendix 2A) must be filled out for this test.
4.3.1.9.7 In order to prevent tampering of the certified EBAT instrument during the testing procedure, the subject must be removed from the area in close proximity to the instrument during the two-minute period between subject breath tests.
4.3.1.9.8 A clean mouthpiece will be used each time the subject blows into the certified EBAT instrument.
4.3.1.10 Step 7. Retain all printouts generated by the certified EBAT instrument to include any error messages, and any checklist(s) initiated (Appendix 2A) with the DUI packet.
4.3.1.10.1 The certified EBAT operator or instructor conducting the EBAT must sign the checklist(s) and completed EBAT printout(s) and retain all initiated checklist(s) (Appendix 2A) with the DUI packet.
4.3.1.10.2 All printouts generated by the certified EBAT instrument must be retained with the DUI packet, including error message printouts.
4.3.1.10.3 Effective April 1, 2009, all certified EBAT instrument Standard Simulator Solution Logs and solution records must be retained by the facility for a minimum of 5 years.
