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. (1) Only those laboratories or persons performing analysis of blood, breath, urine or saliva for the determination of blood alcohol content, or of blood and urine for the presence of drugs—at the direction of a law enforcement officer acting under the provisions of sections 577.020–577.039, RSMo, 577.041, RSMo and 306.111–306.119, RSMo—are subject to the rules in this chapter.

2. (2) The following definitions shall be used in the interpretation and enforcement of the rules in this chapter:

   1. (A) Blood alcohol content is the alcohol content of blood expressed as a percentage based on grams of alcohol per one hundred

3. (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath;

   1. (B) Breath analyzer is an instrument which measures and expresses the blood alcohol content from a sample of expired (alveolar) air;
   2. (C) Department is the Missouri Department of Health;
   3. (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;
   4. (E) Field repairs are the repairs on breath analyzers at locations other than at a manufacturer’s facility;
   5. (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
   6. (G) Permit is the written authorization from the Department of Health for an individual to perform analyses of blood, breath, urine or saliva for blood alcohol content; to perform analyses on blood 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 repairs and maintenance checks on breath analyzers.

4. (3) The chemical analysis of a person’s blood, breath, urine or saliva conducted under the provisions of 577.020–577.039, RSMo, 577.041, RSMo, and 306.111– 306.119, RSMo, shall be performed by licensed medical personnel or by personnel possessing a valid permit issued by the department.

   1. (A) Permits are valid for two (2) years from the date of issuance.
   2. (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.
   3. (C) A permit may not be used as an endorsement from the department for promotional or commercial purposes.
5. (4) Applications for permits and renewals of permits shall be made on forms (see 19 CSR 25-30.021, 19 CSR 25-30.031 or 19 CSR 25- 30.041) available from the director, State Public Health Laboratory, 307 W. McCarty Street, Jefferson City, MO 65101. Requests for approval of instruments, methods or training courses shall be made to the director, State Public Health Laboratory. Criteria and standards used for approval purposes shall be provided upon request by the State Public Health Laboratory.

6. (5) Breath analyzers shall be operated strictly in accordance with the procedures set forth in 19 CSR 25-30.060.

   1. (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.

   2. (B) An individual permitted to operate a breath analyzer shall—

      1. 1. Immediately suspend use of a breath

analyzer that is not functioning properly; and

1. 2. Submit to periodic reviews, examina-

tions or surveys conducted by the department.

1. (6) The department shall initiate proceedings to 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 repeatedly demonstrated an inability to accurately and properly perform analyses or 19 CSR 25-30

satisfactorily meet the responsibilities of the permit.

1. (A) The department shall provide written notice of the revocation to the permittee and the employee of the permittee.
2. (B) The notice shall contain a summary of the evidence supporting the revocation.

AUTHORITY: sections 192.006, 306.114, 306.117, 577.020, 577.023, 577.026, 577.029, 577.031, 577.033, 577.037, 577.039 and 577.041, RSMo 2000.* 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 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. *Original authority: 192.006, RSMo 1993, amended 1995; 306.114, RSMo 1993; 306.117, RSMo 1993; 577.020, RSMo 1977, amended 1982, 1983, 1996, 1998; 577.023, RSMo 1982, amended 1983, 1991, 1993, 1998; 577.026, RSMo 1982; 577.029, RSMo 1982; 577.031, RSMo 1982; 577.033, RSMo 1982; 577.037, RSMo 1982, amended 1983, 1988, 1993, 1996; 577.039, RSMo 1982, amended 1996; and 577.041, RSMo 1982, amended 1987, 1991, 1993, 1996, 1998. Collins v. Director of Revenue, 691 SW2d 246 (Mo. banc. 1985); Jannett v. King, 687 SW2d 252 (Mo. App. 1985); Stuart v. Director of Revenue, 761 SW2d 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 SW2d 246 (Mo. banc 1985); Stuart v. Director of Revenue, 761 SW2d 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 SW2d 797 (Mo. App. 1986). The results of approved breath analysis tests are measured by weight.