Question: What are some of the Oklahoma Board of Test’s rules regarding administration of a chemical BAC test?
Answer: In regards to a breath test, there’s a lot of different rules regarding how that instrument is to be utilized. First, you have to have somebody that’s been trained and permitted by the Board of Tests in order to offer and conduct a test. They’ve got to do things like check the mouth; make sure the person doesn’t have any foreign substances inside of their mouth before giving the test; you ‘ve got to observe them for a 15-minute deprivation period to make sure they don’t ingest anything, smoke or vomit. The idea is we don’t want to introduce any foreign substances into the mouth. We’re also concerned about any mouth alcohol, residual alcohol in the mouth. So that’s why they have that 15-minute deprivation period. And then, running the tests, they’ve got to follow all the prompts that the instrument has, you know, when to blow and things like that.
But there are also additional things that have to be shown whenever the Department of Public Safety is trying to take somebody’s license or a prosecutor’s trying to criminally charge somebody. You’ve got to show that the instrument that was used was properly approved by the Oklahoma Board of Tests, that the mouthpiece that was used was approved by the Board of Tests, and we’ve actually got a case that’s up on appeal right now on those two issues, actually not so much the instrument itself but whether the breath simulator that the instrument uses to check itself against was properly approved by the Board of Tests.
Well, the Board of Tests had approved it through a resolution, but they didn’t actually go through the Oklahoma Administrative Procedures Act to approve it by rule, and a judge found that, found against the Department of Public Safety in that case, finding that the Board of Tests didn’t properly approve that breath simulator, and then also the mouthpiece was approved by the director of the Board of Tests, and not the board itself. And the court found that the board can’t delegate its authority to the director to approve things like mouthpieces. So that’s an issue where the Department of Public Safety’s got a problem trying to show compliance on the part of the Board of Tests. So those are just some of the rules that have to be shown compliance with in order to get a breath test admitted into court.
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