5 CAR pt. 21 | 5 CAR Part 21 — Arkansas Rules for Breath Alcohol Ignition Interlock Devices

Chapter III

Subchapter A

Subpart 1

5 CAR § 21-101 Purpose and interpretation {#sec-5-car-21-101 omnilex-key=us-ar-regs-official--title-5-part-21--5 CAR § 21-101}

5 CAR § 21-101. Purpose and interpretation.

(a) The purpose of this part is to provide safeguards necessary to protect the health and safety of the citizens of Arkansas by establishing criteria for the use of breath alcohol ignition interlock devices.

(b)(1) The impact of this part is directed toward the:

(A) Manufacturer;

(B) Service provider;

(D) Department of Health.

(2) Contents will, of necessity, describe interactions with the:

(A) Courts; and

(B) Office of Driver Services of the Department of Finance and Administration.

(c)(1) This part shall be interpreted so as to favor the safety of the public.

(2) In the absence of a rule specifically addressing a particular matter, there shall be applied reasonable, just, and equitable procedures and substantive decisions which are predictable from the spirit and intent of:

(A) The legislative enactment; and

(B) This part.

5 CAR § 21-102 Definitions {#sec-5-car-21-102 omnilex-key=us-ar-regs-official--title-5-part-21--5 CAR § 21-102}

5 CAR § 21-102. Definitions.

As used in this part:

(1)(A) “Alcohol set point” or “fail point” means the line of demarcation between “pass” and “fail” of a breath test.

(B) See “calibration setting”;

(2)(A) “Approval” means the official endorsement of the Department of Health or its authorized representative documenting that the requirements of Arkansas Code § 5-65-118 as amended and this part have been met.

(B) See “certification”;

(3) “Breath alcohol ignition interlock device (BAIID)” means an electronic device with microcomputer logic and internal memory, having a breath alcohol analyzer as a major component, that interconnects with the ignition and/or other control systems of a motor vehicle for the purpose of preventing that motor vehicle from being started if the driver has a breath alcohol content which exceeds the preset limit (set point);

(4) “Breath alcohol concentration (BrAC)” means the amount of alcohol in a given amount of breath expressed in grams of alcohol per two hundred ten liters (210L) of breath;

(5) “Breath sample” means normal expired human breath primarily containing air from the deep lung;

(6) “Calibration” means the act of checking, verifying, or rectifying the accuracy of a device;

(7)(A) “Calibration setting” as described in Arkansas Code § 5-65-118, means in this part the "alcohol set point".

(B) The alcohol set point shall be twenty-five thousandths grams (0.025g) of alcohol per two hundred ten liters (210L) of breath unless specified otherwise in writing by the Office of Driver Services.

(C) Acts 1993, No. 298 authorizes the court to establish "a specific calibration setting" in the range of two one hundredths (.02) through five one hundredths (.05);

(8)(A) “Certification” means the official endorsement (certificate of approval) of the Department of Health or its authorized representative documenting that the requirements of Arkansas Code § 5-65-118 as amended and this part have been met.

(B) See “approval”;

(9) “Circumvention” means an overt, conscious attempt to bypass the ignition interlock device, whether by:

(A) Providing samples other than the natural unfiltered breath of the driver;

(B) Starting the vehicle without using the ignition switch; or

(i) Intended to start the vehicle without first passing a breath test; and/or

(ii) Permitting a driver with a BrAC in excess of the alcohol set point to start the vehicle;

(10) “Department” means the Office of Alcohol Testing of the Department of Health;

(11) “Device” means the BAIID;

(12) “Director” means the Director of the Department of Health or designee thereof;

(13) “Driver” means a motorist who is required, either by the Office of Driver Services or by court order, to operate only motor vehicles equipped with a functioning and approved BAIID;

(14) “Dry-gas cylinder” means a cylinder containing a known concentration of ethyl alcohol mixed with nitrogen gas used to calibrate and check the calibration of a testing device;

(15)(A) “Fail-safe” means a condition in which the interlock device cannot operate properly due to some problem (e.g., improper voltage, temperature exceeding operating range, dead sensor, etc.).

(B) In a fail-safe condition the BAIID will not allow the vehicle to be started;

(16)(A) “Lockout” means a condition in which the vehicle will be completely disabled, after being given a visible and/or audible warning for a period of twenty-four (24) hours of impending lockout.

(B) The device will automatically disable the vehicle at a point in time when it is not in operation;

(17) “Office” means the Office of Driver Services;

(18) “Rules” means all sections of Arkansas Rules for Breath Alcohol Ignition Interlock Devices unless otherwise specified;

(19)(A) “Restart” means the allowance of the device for the driver to start the vehicle without having to give a breath sample.

(B) This allows for a driver to restart the vehicle within two (2) minutes and not be penalized for or endangered by a malfunctioning vehicle;

(20) “Rolling retest” means a subsequent breath test that must be conducted after initial start while the motor vehicle is in operation;

(21) “Service provider” means an approved vendor, service center, distributor, installer, or supplier of a device;

(22)(A) “Simulator device” means:

(B) A device that enables the operator to reproduce, under test conditions, phenomena likely to occur in actual performance;

(D) An accessory to a testing device;

(23) “Standard reference” means a material, such as water, containing alcohol that is established by authority as the rule for measuring quantity or value; and

(24) “Tampering” means an overt, conscious attempt to:

(A) Physically disable or otherwise disconnect the BAIID from its power source; and

(B) Thereby allow a person with a breath alcohol above the alcohol set point to start the engine.

5 CAR § 21-103 The Office of Alcohol Testing role and functions {#sec-5-car-21-103 omnilex-key=us-ar-regs-official--title-5-part-21--5 CAR § 21-103}

5 CAR § 21-103. The Office of Alcohol Testing role and functions.

(a) Approval/certification by the Office of Alcohol Testing.

(1) Approval.

(A) Upon the demonstration by the manufacturer of a BAIID that said device meets the criteria outlined in 5 CAR § 21-105, and that manufacturer is prepared to meet the requirements outlined in 5 CAR §§ 21-104 and 21-106, the Office of Alcohol Testing may issue a certificate of approval.

(B) This does not preclude the office from making any additional requirements deemed necessary to carry out the intent of the law and this part.

(2) List of approved/certified devices. The office shall maintain and periodically, when updated, or upon request, provide a list of devices and their manufacturers and approved service providers that have been issued a certificate of approval.

(3) Revocation of approval/certification.

(A) Subsequent to approval, the failure of the manufacturer to meet the requirements set forth in 5 CAR §§ 21-104 and 21-106 shall result in a letter of reprimand and instructions for correction from the office.

(B) Failure to positively respond and correct the deficiencies to the satisfaction of the office within thirty (30) days shall result in a revocation of the certificate of approval of the device for use in this state.

(b) Monitoring by office.

(1) Inspections by office. The office shall inspect each service provider of such devices while a device is being installed and while a monitoring visit is being conducted on an installed unit at least once a year.

(2) Testing of device by office.

(A) The office may conduct, or have conducted independently, tests on any of the approved BAIIDs to determine if the devices are operating within this part.

(B) The office shall remove from the list of approved devices any device, manufacturer, or service provider not found to be in compliance with this part.

(c) Complaints. The office shall make available to users and the public a reasonable means of filing complaints or giving feedback about the:

(1) Service provider;

(2) Device; or

(3) Misuse of such devices.

5 CAR § 21-104 Manufacturer/service provider {#sec-5-car-21-104 omnilex-key=us-ar-regs-official--title-5-part-21--5 CAR § 21-104}

5 CAR § 21-104. Manufacturer/service provider.

(a) Approval of breath alcohol ignition interlock device, manufacturer, and service provider.

(1) Requirements for approval of device. The manufacturer requesting approval/certification of a BAIID shall submit:

(A) A written application, certifying that the device:

(i) Does not impede the safe operation of a vehicle;

(ii) Minimizes inconvenience to non-drinking vehicle operators;

(iii) Offers minimal opportunities for bypass;

(iv) Works accurately and reliably in unsupervised environments; and

(v) Accurately measures the person's alcohol level;

(B) A written commitment to:

(i) User training, servicing, and maintenance of the system; and

(ii) Reporting to specified authorities;

(i) Emergencies; and

(ii) Mechanical problems;

(D)(i) Evidence of liability insurance, in the amount of at least one million dollars ($1,000,000) per occurrence, with three million dollars ($3,000,000) aggregate total.

(ii) The liability insurance shall include coverage for defects in product design and materials as well as in the manufacturing, calibration, installation, and removal of devices.

(iii) The proof of insurance shall include a statement from the insurance company that thirty (30) days’ notice will be given to the Office of Alcohol Testing before cancellation of the insurance;

(E) Evidence that the manufacturer and service provider indemnify and hold harmless the State of Arkansas, the State Board of Health, the Office of Alcohol Testing, and its officers, employees, and agents from all claims, demands, actions, and costs that may arise directly or indirectly out of any act or omission by the manufacturer relating to the installation, service, repair, use, and removal of a device;

(F) One (1) BAIID unit, not installed in a vehicle;

(G) A verifiable report of an independent testing laboratory indicating that the device meets or exceeds the current standards of the National Highway Traffic Safety Administration for such devices as described in this part; and

(H) A complete copy of the testing protocol used by the laboratory for the testing of the device and the results thereof.

(2) Requirements for BAIID system approval. In order to obtain approval/certification by the Office of Alcohol Testing, the manufacturer shall:

(A) Comply with the requirements in subsections (a) – (c) of this section; and

(B) Provide, in writing to the Office of Alcohol Testing, satisfactory assurance that the service provider or providers will fulfill the requirements in subsections (c) – (d) of this section.

(b) Manufacturer responsibilities.

(1) Modifications. The manufacturer of such device shall:

(A) Notify the Office of Alcohol Testing, in writing, of any material modification or alteration in the components, design or installation, and operating instructions of any device approved for use in this state; and

(B) Provide the Office of Alcohol Testing satisfactory proof that these modifications or alterations do not adversely affect the ability of the device to satisfy the requirements of 5 CAR § 21-105(a) and/or (b).

(2) Mouthpieces and parts.

(A) The manufacturer shall provide an adequate supply of mouthpieces if required.

(B) Service providers shall be provided an adequate inventory of parts and supplies by the manufacturer.

(1) Requirements for calibration. A BAIID utilized under this part shall be calibrated at least once every sixty-seven (67) days using either a wet alcohol standard or a compressed gas standard at a manufacturer-approved service provider site.

(2) Records of calibration.

(A) The calibration records shall be maintained by the service provider or the manufacturer for a period of three (3) years.

(B) Copies of these records shall be provided as requested.

(C) These records must reflect all pertinent information and provide a credible account of the condition of each device over the period of use.

(3) Required details. Each record shall include the:

(A) Name of the person performing the calibration;

(B) Date;

(D) Lot number;

(E) Expiration date;

(F) Type of standard used;

(G) Unit type and identification number of the BAIID checked; and

(H) Description of the vehicle in which the BAIID is installed, including the:

(i) License plate number and state; and

(ii) Vehicle:

(a) Identification number;

(b) Make;

(d) Year; and

(e) Color.

(d) Service provider responsibilities.

(1) Service. A service provider shall provide the following minimum service:

(A) Repair and/or calibration within three (3) business days after service is requested;

(B) A reasonable number of installation and service facilities within the state, with reasonable business hours; and

(C) Access to a twenty-four-hour toll-free telephone number to answer questions and to deal with mechanical problems and emergencies related to the device.

(2) Security.

(A)(i) Installation of the device must be done in an area that is secured from unauthorized persons.

(ii) Necessary precautions must be taken to prevent:

(a) Accessibility of items such as tamper seals and installation instructions; and

(b) Any observation of installation.

(iii) Only trained, authorized personnel and the Office of Alcohol Testing inspectors shall have access to the:

(a) Area during installation; or

(b) Instructions and seals.

(B)(i) A service provider is prohibited from assisting or facilitating any tampering or circumvention of a device.

(ii) A service provider may not install a device on a vehicle owned or operated by any of its employees.

(C) Failure of a service provider to assure complete integrity of the interlock system may result in a loss of approval status for the provider.

(3) Vehicle inspection. The service provider shall inspect each vehicle before installing the device to insure the vehicle is in a mechanical and electrical condition that will allow the device to meet the specifications in 5 CAR § 21-105(b).

(4) Directions for installation of devices. A BAIID utilized under this part shall be installed by the manufacturer or by private sector service providers in conformance with the directions of the manufacturer.

(5) Tamper protection. The installation of the device shall include tamper-proof hardware and/or void seals or heat-seal plastic that will provide evidence of any tampering.

(6) Warning label.

(A) Manufacturers shall provide the service providers with a warning label to affix to every unit installed in a vehicle.

(B) The warning label shall state essentially:

WARNING! ANY ACTUAL OR ATTEMPTED

TAMPERING OR CIRCUMVENTION OF THIS

DEVICE CAN SUBJECT YOU TO CRIMINAL

AND CIVIL LIABILITY.

(7) Instructions to users.

(A) At the time of installation, detailed operational instructions shall be given to individuals who will be operating the vehicle.

(B) In addition to the manufacturer's instructions, this information shall include a copy of 5 CAR § 21-106.

(e) Monitoring of devices.

(1) Frequency of monitoring. At the time of the calibration, the device and vehicle shall be monitored and a report promptly provided to the Office of Driver Services.

(2) Monitoring report. The report shall provide a minimum of the following:

(A) Name of assigned driver;

(B) Vehicle identification number;

(D) Mileage;

(E) Period of review covered in the report;

(F) A clear communication of all inappropriate events; and

(G) A report of the pattern of vehicle use.

(3) Report of tampering.

(A) At the time of calibration, the device and vehicle shall be inspected for:

(i) Evidence of tampering;

(ii) Abuse; and

(iii) Proper function.

(B) The monitoring report shall include any fact concerning the improper operation of the device or vehicle.

(f) Denial, suspension, or revocation of certification/approval of a device.

(1) Cause for loss of approval/certification. The Office of Alcohol Testing may deny, suspend or revoke approval/certification of any device for any of the following reasons:

(A) Defects in design, materials, or workmanship causing repeated failures of a device;

(B) Termination or cancellation of a manufacturer's liability insurance;

(D) Voluntary request by a manufacturer to cancel approval of a device;

(E) Violation by a manufacturer or service provider of any of the provisions of this part;

(F) Provision of materially false or inaccurate information relating to a device's performance standards by a manufacturer or service provider; or

(G) Modification or alteration of the components, design, or installation and operation instructions in such a way that the requirements of 5 CAR § 21-105(b)(1)(A) are no longer satisfied.

(2) Effective date. A revocation or suspension of an approval becomes effective fifteen (15) days after notification is sent to the manufacturer by certified mail.

(3) Appeal.

(A) A manufacturer may appeal a denial, suspension, or revocation of approval.

(B) This request shall be submitted to the Office of Alcohol Testing, in writing, within fifteen (15) days of the receipt of a notice of denial or revocation of approval.

(4) Suspension. Upon suspension a provider must cease accepting new customers but must continue to calibrate, service, and monitor existing customers for the duration of the suspension.

(5) Cost of removal and replacement of device. After denial or revocation of approval, or voluntary surrender of an approval, a manufacturer shall be responsible for any costs connected with the removal of its devices from customers' vehicles and the installation of another device from the Office of Alcohol Testing’s list of approved devices.

5 CAR § 21-105 Breath alcohol ignition interlock devices {#sec-5-car-21-105 omnilex-key=us-ar-regs-official--title-5-part-21--5 CAR § 21-105}

5 CAR § 21-105. Breath alcohol ignition interlock devices.

(a) Criteria for approved devices — Features. The programmable features of the device shall comply to a reasonable degree with the state's current list of acceptable features and required driver sanctions.

(b) Criteria for approved devices — Capabilities. The properly installed BAIID shall:

(1) Meet or exceed the current standards of the National Highway Traffic Safety Administration (NHTSA) as published in Volume 78, No. 89 of the Federal Register on May 8, 2013, in the model specifications for breath alcohol ignition interlock devices (BAIIDs);

(2) Use fuel cell technology or other alcohol-specific sensing technology approved by the Office of Alcohol Testing;

(3) Not impede safe operation of the vehicle in which the device is installed;

(4) Work reliably and accurately in an unsupervised environment and in a fail-safe condition, shall cause the vehicle not to start; and

(5) Visibly and/or audibly indicate to the user or any person near the device that:

(A) The unit is on;

(B) The unit has enabled the ignition system of the vehicle in which it is installed;

(D) The failure of the breath sample obtained by the device (alcohol value exceeds set point); and

(E)(i) Any other indicator or signal that may be required by the office.

(ii) The device may augment visible signals or indicators with audible ones approved by the office; and

(6) Visibly and/or audibly indicate to others in the area when a device is indicating the driver has not met the requirements for:

(A) A rolling retest;

(B) A calibration and maintenance; or

5 CAR § 21-106 Records and reports to be provided by the manufacturer or service provider {#sec-5-car-21-106 omnilex-key=us-ar-regs-official--title-5-part-21--5 CAR § 21-106}

5 CAR § 21-106. Records and reports to be provided by the manufacturer or service provider.

(a) Service provider sites.

(1) Subsequent to approval of a device, the manufacturer or designated representative shall furnish the Office of Alcohol Testing with the following information about each service provider site immediately upon establishing those sites:

(A) Business name;

(B) Owner’s name;

(D) Names and qualifications of personnel trained and authorized to perform installations and monitoring;

(E) Specific location of the business;

(F) Hours of business;

(G) Telephone number; and

(H) Emergency number.

(2) A copy of the training certificate/documentation shall be provided to the office.

(b) Reports to courts.

(1) The manufacturer, designated representative, or the service provider shall furnish to the sentencing court a report of all activities required to be recorded by the device, including:

(A) Physical evidence of tampering or attempted tampering; and

(B) Any attempts at circumvention of the ignition interlock device.

(2) The report to the court shall include notice of any automatic lockout.

(3) These reports shall be made as soon as possible, but not longer than two (2) weeks after discovery.

(c) Report to Office of Driver Services. The manufacturer or designated representative, or the service provider shall report to the Office of Driver Services, providing a complete record of installation, calibration, maintenance checks, and usage records of any or all of their devices placed in service in Arkansas.

(d) Notice to Office of Alcohol Testing. The Office of Driver Services will notify the Office of Alcohol Testing upon discovery of any abnormality or possible infraction of this part observed concerning the use, installation, or function of these devices.

(e) Availability of records. The Office of Driver Services will make available to the Office of Alcohol Testing any records on BAIIDs not otherwise prohibited by law.

5 CAR § 21-107 Rules for the use of breath alcohol ignition interlock devices {#sec-5-car-21-107 omnilex-key=us-ar-regs-official--title-5-part-21--5 CAR § 21-107}

5 CAR § 21-107. Rules for the use of breath alcohol ignition interlock devices.

(a) Personal responsibility. The owner of the vehicle in which a BAIID is to be installed will be responsible for the cost of any repairs necessary to get the vehicle in a condition to allow the installed device to meet the requirements specified in 5 CAR § 21-105(b).

(b) Post-installation inspection. After installation of the device, an inspection should be made by the owner and installer to ensure the installation:

(1) Was performed properly; and

(2) Does not interfere with the normal operation of the vehicle.

(c) Order for installation. A copy or the original order shall be kept in the vehicle for inspection by law enforcement or other appropriate officials.

(d) Proper use of device.

(1) A BAIID shall be used in accordance with the prescribed procedures of the manufacturer.

(2) These procedures shall include a minimum fifteen-minute waiting period between the:

(A) Last drink of an alcoholic beverage; and

(B) Time of blowing into the device.

(3) Failure of the test shall mean the driver is above the prescribed allowable breath alcohol concentration (alcohol set point).

5 CAR Part 21 — Arkansas Rules for Breath Alcohol Ignition Interlock Devices