General Provisions for the Determination of Blood, Breath, Saliva, or Urine Analysis and Drug Testing

PURPOSE: This rule provides general information regarding the applicability of the rules in this chapter, definitions of terms, permits, and operation of breath analyzers. (1) Only those laboratories or persons performing analysis of blood, breath, saliva, or urine for the determination of blood alcohol content, or of blood, saliva, or urine for the presence of drugs—at the direction of a law enforcement officer acting under the provisions of sections 577.001–577.041, RSMo—are subject to the rules in this chapter. (2) The following definitions shall be used in the interpretation and enforcement of the rules in this chapter: (A) Blood alcohol content is the alcohol content of blood expressed as a percentage based on grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath; (B) Breath analyzer is an instrument which measures and expresses the blood alcohol content from a sample of expired air; (C) Department is the Missouri Department of Health and Senior Services; (D) Drugs are illegal or controlled chemical substances, other than alcohol, that are capable of impairing an individual’s ability to operate a motor vehicle; (E) Field service and repairs are the service and repairs on breath analyzers at locations other than at a manufacturer’s facility; (F) Maintenance checks are the standardized and prescribed procedures used to determine that a breath analyzer is functioning properly and is operating in accordance with the operational procedures established by the Department of Health and Senior Services; (G) Permit is the written authorization from the Department of Health and Senior Services for an individual to perform analyses of blood, breath, saliva, or urine for blood alcohol content; to perform analyses of blood, saliva, or urine for drugs; to operate breath analyzers; to supervise operators of breath analyzers; to serve as instructors of training courses; and to perform field service and repairs and maintenance checks on breath analyzers; (H) Observation period is the minimum fifteen- (15-) minute continuous period that ends when a breath sample has been provided into the approved breath analyzer, during which time the operator shall remain close enough to a subject to reasonably ensure, using the senses of sight, hearing, or smell, that a test subject does not smoke, vomit, or have any oral intake during the fifteen- (15-) minute observation period. Direct observation is not necessary to ensure the validity or accuracy of the test result; (I) Oral intake is the act of placing a substance from outside the body into the mouth during the observation period. The mouthpiece used to provide a breath sample shall not constitute oral intake; (J) Vomiting is the act of ejecting the solid and/or liquid contents of the stomach through the mouth, and does not include belching or burping; (K) Examination is a limited visual examination of a test subject’s mouth and/or denial by a subject that he or she has any substance in his or her mouth; and (L) Substance is any foreign matter, solid or liquid, not to include dentures, dental work, studs, piercing, or tongue jewelry. (3) The chemical analysis of a person’s blood, breath, saliva, or urine conducted under the provisions of sections 577.001– 577.041, RSMo, shall be performed by licensed medical personnel or by personnel possessing a valid permit issued by the department. (A) Permits are valid for two (2) years from the date of issuance. (B) A permittee is authorized to perform only those tests for analysis, or to operate or maintain those breath analyzers that are specified on the permit. (C) A permit may not be used as an endorsement from the department for promotional or commercial purposes. (4) Applications for permits and renewals of permits shall be made on forms available from the Breath Alcohol Program, Missouri State Public Health Laboratory. Forms are also available at http://health.mo.gov/lab/breathalcohol/. Requests for approval of instruments, methods, or training courses shall be made to the director, Missouri State Public Health Laboratory, c/o Breath Alcohol Program. Requests for copies of permits, submitted maintenance records, submitted permit applications, and simulator certifications shall also be made to the director, Missouri State Public Health Laboratory, c/o Breath Alcohol Program. Criteria and standards used for certification and approval purposes shall be provided upon request by the Missouri State Public Health Laboratory. (5) Breath analyzers shall be operated strictly in accordance with the procedures set forth in 19 CSR 25-30.060. (A) An operational checklist, including the certification section, shall be completed with each breath test at the time of the test, by the individual performing the test. (B) An individual permitted to operate a breath analyzer shall— 1. Immediately suspend use of a breath analyzer that is not functioning properly; and 2. Submit to periodic reviews, examinations or surveys conducted by the department. (6) The department may initiate proceedings to deny, suspend, or revoke a permit when there is evidence of false or misrepresented information given on an application or renewal for a permit; when there is evidence that the permittee has falsified reports, negligently performed analyses or reported results, used an instrument or method not approved by the department, performed analyses not authorized by the permit, or has used the permit for promotional or commercial purposes; or when the permittee has demonstrated an inability to accurately and properly perform analyses or satisfactorily meet the qualifications and competence standards required of the permit. (A) The department shall provide written notice of the disciplinary action to the permittee and the employee of the permittee. (B) The notice shall contain a summary of the evidence supporting the disciplinary action. AUTHORITY: sections 192.006, 577.020, and 577.037, RSMo 2016.* This rule previously filed as 19 CSR 20-30.011. Original rule filed July 15, 1988, effective Sept. 29, 1988. Changed to 19 CSR 25-30.011 4 AND SENIOR SERVICES Jan. 1, 1995. Emergency amendment filed May 10, 2001, effective May 22, 2001, expired Nov. 17, 2001. Amended: Filed May 10, 2001, effective Oct. 30, 2001. Amended: Filed May 31, 2012, effective Dec. 30, 2012. Amended: Filed Oct. 1, 2019, effective March 30, 2020. *Original authority: 192.006, RSMo 1993, amended 1995; 577.020, RSMo 1977, amended 1982, 1983, 1996, 1998, 2001, 2006, 2014; and 577.037, RSMo 1982, amended 1983, 1988, 1993, 1996, 2001, 2014, 2016. Collins v. Director of Revenue, 691 S.W.2d 246 (Mo. banc. 1985); Jannett v. King, 687 S.W.2d 252 (Mo. App. 1985); Stuart v. Director of Revenue, 761 S.W.2d 234 (Mo. App. 1988). Prima facie case for admission of breath analysis test results is made if the test is administered by a certified operator in accordance with promulgated operating procedures. Collins v. Director of Revenue, 691 S.W.2d 246 (Mo. banc 1985); Stuart v. Director of Revenue, 761 S.W.2d 234 (Mo. App. 1988). A contention that a breath analysis instrument was not functioning properly can only be made if supported by some evidence which suggests that a malfunction occurred despite adherence to correct test methods. Williams v. Director of Revenue, 721 S.W.2d 797 (Mo. App. 1986). The results of approved breath analysis tests are measured by weight. Daniels v. Director of Revenue, 48 S.W.3d 42 (Mo. App. 2001), overruled on other grounds by Verdoorn v. Director of Revenue, 119 S.W.3d 543 (Mo. 2003). “Belching” does not constitute “vomiting” because stomach contents are not disgorged through the mouth. Misener v. Director of Revenue, 134 S.W.3d 761 (Mo. App. 2004). Subject waived any defense based upon the breath test result being contaminated by an antacid tablet in his mouth because he did not respond truthfully when asked whether he was taking any medication.