wv-wv-18556: 81-20 — Methods and Standards for Chemical Tests for Intoxication

6/29/2026 1:06:02 PM Office of West Virginia Secretary Of State NOTICE OF PUBLIC COMMENT PERIOD AGENCY: State Police TITLE-SERIES: 81-20 RULE TYPE: Legislative Amendment to Existing Rule: No Repeal of existing rule:No RULE NAME: Methods and Standards for Chemical Tests for Intoxication CITE STATUTORY AUTHORITY: W. Va. Code §§17C-5-8 (e)(1) (A) and (B). COMMENTS LIMITED TO: Written DATE OF PUBLIC HEARING: LOCATION OF PUBLIC HEARING: DATE WRITTEN COMMENT PERIOD ENDS: 07/29/2026 12:00 PM COMMENTS MAY BE MAILED OR EMAILED TO: NAME: Brandolyn N. Felton-Ernest ADDRESS: 1900 Kanawha Blvd., E. Building 1, Room W-400 EMAIL: brandolyn.feltonernest@wv.gov PLEASE INDICATE IF THIS FILING INCLUDES: RELEVANT FEDERAL STATUTES OR REGULATIONS: No (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) INCORPORATED BY REFERENCE: No (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) PROVIDE A BRIEF SUMMARY OF THE CONTENT OF THE RULE: This legislative rule establishes the methods and standards relating to implied consent for chemical testing for intoxication pursuant to Chapter 17C of the West Virginia Code. SUMMARIZE IN A CLEAR AND CONCISE MANNER CONTENTS OF CHANGES IN THE RULE AND A STATEMENT OF CIRCUMSTANCES REQUIRING THE RULE: Currently, this rule is active within the Bureau of Public Health as 64 CSR 10. During the 2025 Regular Session, the Department of Homeland Security/West Virginia State Police successfully ran HB 5406 which amended and reenacted the sections of code relating to driving under the influence. The bill made the West Virginia State Police Forensic Laboratory the certifying entity for secondary chemical tests, method and administration of secondary chemical tests and approval of preliminary breath analysis devices and use. The bill eliminated the rule-making authority of the Bureau of Public Health and provides rule-making authority for the West Virginia State Police. SUMMARIZE IN A CLEAR AND CONCISE MANNER THE OVERALL ECONOMIC IMPACT OF THE PROPOSED RULE: A. ECONOMIC IMPACT ON REVENUES OF STATE GOVERNMENT: 0 B. ECONOMIC IMPACT ON SPECIAL REVENUE ACCOUNTS: 0 C. ECONOMIC IMPACT OF THE RULE ON THE STATE OR ITS RESIDENTS: 0 D. FISCAL NOTE DETAIL: Effect of Proposal Fiscal Year 2026 2027 Fiscal Year (Upon Increase/Decrease Increase/Decrease Full (use "-") (use "-") Implementation) 1. Estimated Total Cost Personal Services Current Expenses Repairs and Alterations Assets Other 2. Estimated Total Revenues E EXPLANATION OF ABOVE ESTIMATES (INCLUDING LONG-RANGE EFFECT): 0 BY CHOOSING 'YES', I ATTEST THAT THE PREVIOUS STATEMENT IS TRUE AND CORRECT. Yes Brandolyn N Felton-Ernest-By my signature, I certify that I am the person authorized to file legislative rules, in accordance with West Virginia Code §29A-3-11 and §39A-3-2. 81CSR20 TITLE 81 LEGISLATIVE RULE WEST VIRGINIA STATE POLICE SERIES 20 METHODS AND STANDARDS FOR CHEMICAL TESTS FOR INTOXICATION §81-20-1. General. 1.1. Scope. -- This legislative rule establishes the methods and standards relating to implied consent for chemical test for intoxication pursuant to appropriate articles of Chapter 17C of the West Virginia Code. 1.2. Authority. -- W. Va. Code §§17C-5-8 (e)(1) (A) and (B). 1.3. Filing Date. -- . 1.4. Effective Date. -- . 1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon August 1, 2032. §81-20-2. Application and Enforcement. 2.1. Application. The provisions of this rule are applicable to all law enforcement agencies and personnel engaging in breath, and blood, alcohol and/or drug analysis in this state; and to those persons suspected of driving under the influence of alcohol or drugs, or both. §81-20-3. Definitions. 3.1. Agency means a law enforcement agency in the state engaging in breath or blood alcohol testing. 3.2. Alcohol means ethyl alcohol and may include methyl alcohol and isopropyl alcohol. 3.3. Alcohol breath analysis means chemical testing of a sample of a person's expired breath, using a breath test instrument designed for that purpose, in order to determine the concentration of alcohol in the person's blood. 3.4 Alveolar composition means deep lung air or end-expiratory breath. 3.5 WVSPFL means West Virginia State Police Forensic Laboratory. 3.6 Calibrating unit means a device designed to produce a predictable alcohol concentration reading on a breath alcohol test instrument. 3.7 Certifiedinstrumentoperatormeans apersonwhohassuccessfullycompletedaspecialized training program and has been certified by the WVSPFL to perform breath alcohol testing using instruments approved for that purpose. 3.8 Chemical Test or testing means an analysis performed on a biological material, including, but not limited to breath or blood to determine the identity or concentration, or both, of alcohol. Test procedures may rely on one or more physical or chemical properties of the constituents and use instrumental or chemical analysis techniques to accomplish the determination. 1 81CSR20 3.9 Dry gas standard means a sealed pressurized sample of gas that contains a predictable alcohol concentration that can be used to verify the accuracy of breath test instruments. 3.10 Evidential test sequence means one adequate blank analysis, one adequate reference standard analysis, one adequate blank analysis, one adequate breath sample analysis, one adequate blank analysis, a second adequate reference standard analysis, and one adequate blank analysis. 3.11 Instrument means an item or combination of items of equipment designed to make a measurement of alcohol concentration. 3.12 Instrument blank analysis means a test of an ambient air sample to ensure that the instrument produces a zero result. 3.13 Lot means an entire quantity batch of a reference standard. 3.14 Qualitative breath alcohol analysis means a test of a person’s breath, the results of which indicate the presence or absence of alcohol. 3.15 Quantitative breath alcohol analysis means a chemical test of a person’s breath that yields a specific result in grams of alcohol per 210 liters of breath. 3.16 Reference standard means an aqueous ethanol solution compounded for use in a calibrating unit which, when equilibrated with air, yields a predictable alcohol concentration or a sealed pressurized sample of gas that contains a predictable alcohol concentration that can be used to inspect or verify the accuracy of breath test instruments. 3.17 Secondary breath analysis means an evidentiary chemical test of a person’s breath to determine the presence and/or concentration of alcohol. 3.18 Simulator Solution means an aqueous standard ethanol solution which, when equilibrated with air in a breath simulator instrument produces an air-alcohol mixture of a predictable concentration that can be used to inspect or verify the accuracy of breath test instruments. 3.19 Simulator Test means the testing of a sample of simulator solution vapor, using a breath test instrument in order to verify the accuracy of the breath test instrument. 3.20 W/V means weight divided by volume. §81-20-4. Preliminary Breath Analysis; Designation of Testing Instrument; Compliance with Methods and Standards Required. 4.1. Each law enforcement agency using a preliminary breath testing instrument shall designate the testing instrument for the purpose of administering a preliminary breath analysis pursuant to W. Va. Code §17C-5-5. The designation of the testing instrument shall be filed with the WVSPFL. Links can be found at www.wvsp.gov. 4.2. Each law enforcement agency shall comply with the methods and the standards established by this rule. 4.3. The WVSPFL shall maintain a registry of approved testing instruments. 4.4. All instruments used for the purpose of preliminary alcohol breath analysis shall be approved in writing by the WVSPFL. 2 81CSR20 4.5. Approvals and designations of preliminary breath testing instruments in effect at the time this rule becomes effective continue in effect. §81-20-5. Breath Analysis; Preliminary Breath Test; Standards and Methods. 5.1. The use of the approved instrument shall adhere to the manufacturer's specifications for operation and shall include any maintenance specified by the manufacturer. 5.2. The following general methods apply in extracting breath for preliminary breath analysis: 5.2.1. The preliminary alcohol breath analysis shall be administered after the law enforcement officer has a reasonable belief that the person has been driving while under the influence of alcohol. The lawenforcementofficershallkeepthepersonbeingtestedunderconstantobservationforatleast15minutes to ensure that the person has nothing in his or her mouth at the time of test and that he or she has had no food or drink or foreign matter in his or her mouth during the observation period. 5.2.2. If the testing instrument requires contact with the mouth of the tested person, the law enforcement officer conducting the preliminary alcohol breath analysis shall use an individual disposable mouthpiece for each person tested. 5.2.3. The preliminary alcohol breath analysis may be administered by a law enforcement officer who is a certified instrument officer and who has additional training, in theory; and has performed practical exercise recommended by the manufacturer. 5.3. The results of a preliminary alcohol breath analysis shall be used for the purpose of guiding the officer in deciding whether an arrest should be made and to determine if alcohol is a contributing cause for impairment. §81-20-6. Designation of Secondary Test; Compliance with Methods and Standards Required; Certification of Law Enforcement Officers Required. 6.1. Each law enforcement agency shall designate a type of test, either breath or blood for the purpose of administering a secondary alcohol analysis incidental to lawful arrest for the offense of driving a motor vehicle in this state while under the influence of alcohol. The designation of the secondary alcohol analysis test shall be filed with the WVSPFL. Links can be found at www.wvsp.gov. 6.2. Each law enforcement agency shall comply with the methods and the standards established by this rule. 6.3. The WVSPFL shall maintain a registry of approved alcohol breath analysis instruments inclusive of standards and methods for the proper execution of the alcohol breath analysis. 6.4. Secondary alcohol analysis designations in effect at the time this rule becomes effective shall continue in effect. 6.5. Each law enforcement officer administering a secondary alcohol breath analysis shall be a certified instrument operator. 6.6. The WVSPFL shall certify each operator properly trained in the procedures of operation and shall issue a certificate to each trained individual. 6.7. As a minimum training requirement each law enforcement officer shall complete the Secondary Breath Analysis Operator course requirements as set forth by the WVSPFL prior to certification. This 3 81CSR20 course shall consist of classroom and laboratory training, review sessions and examinations. 6.8 Certifications of law enforcement officers in effect at the time this rule becomes effective continue in effect. 6.9 Training Certificates are maintained within the Law Enforcement Professional Standards Information System (beginning April 2026). Information regarding certificates issued prior to April 2026 can be found at www.wvsp.gov. §81-20-7. Breath Analysis; Secondary Breath Test; Standards; Accuracy Inspection Tests; Methods. 7.1. Instrument Standards - Instruments for breath alcohol analysis shall meet the following standards: 7.1.1. The designated instrument and any related accessories shall be capable of the collection and the analysis of breath specimens which approach alveolar composition; 7.1.2. The designated instrument shall be capable of analyzing a blank sample and of analyzing a suitable reference standard; 7.1.3. The designated instrument shall be capable of the analysis of a reference standard within accuracy and precision limits of plus or minus 0.01 grams percent W/V or higher; 7.1.4. The designated instrument shall be capable, in a controlled experiment, of alcohol breath analysis which results in a determination of a person's blood alcohol concentration which has a correlation with his or her actual blood alcohol concentration as measured on a blood sample taken at approximately the same time as the breath sample; 7.1.5. The instrument shall be capable of alcohol breath analysis which results in a concentration less than 0.01 grams of alcohol per 210 liters of breath when alcohol-free persons are tested; and 7.1.6. Anymodelofinstrumentusedforthepurposeofsecondarybreathanalysisshallbeapproved in writing by the WVSPFL. The instrument shall meet or exceed the standards contained in this subsection. 7.2. Methods - The following general methods apply in extracting breath for secondary breath analysis: 7.2.1. The law enforcement officer shall keep the person being tested under constant observation for a period of twenty minutes before the test is administered to ensure that the person has nothing in his or her mouth at the time of the test and that he or she has had no food or drink or foreign matter in his or her mouth during the observation period. 7.2.2. The certified instrument officer conducting the alcohol breath analysis shall perform the evidential test sequence to ensure that the instrument is in proper working condition at the time the person’s alcohol breath analysis test is being conducted. 7.2.3. The alcohol breath analysis shall be administered by a certified instrument operator and in accordance with this rule. 7.2.4. The certified instrument operator conducting the secondary alcohol breath analysis shall use an individual disposable mouthpiece for each person tested. §81-20-8. Blood Analysis; Standards and Methods. 8.1. Methods of analyzing blood specimens for ethyl alcohol shall meet the following standards: 4 81CSR20 8.1.1. The method used shall be capable of separating and quantifying ethyl alcohol from the blood specimen; 8.1.2. The method used shall be capable of the analysis of a reference sample of known ethyl alcohol concentration within accuracy and precision limits of plus or minus 0.01 grams per cent W/V of the true value. These limits shall be applied to ethyl alcohol concentrations which are 0.01 grams per cent W/V or higher; 8.1.3. The method used shall be capable of blood alcohol analysis which results in a concentration less than 0.01 grams of ethyl alcohol per one hundred milliliters of blood when alcohol free persons are tested; and 8.1.4. The gas-chromatographic method meets the standards in this subsection for testing. 8.2. Blood for alcohol analysis shall be collected as follows: 8.2.1. The blood shall be drawn only by a licensed doctor of medicine or osteopathy, registered professional nurse, trained medical technician or any professional trained in phlebotomy; 8.2.2. Sterile hypodermic needles and syringes shall be used. Sterile disposable units are recommended; 8.2.3. The skin shall not be disinfected with ethyl alcohol. The use of non-alcoholic antiseptics, those which do not contain ethyl alcohol, including 1-1000 aqueous solution of mercuric chloride, aqueous benzalkonium chloride (zephiran), aqueous merthiolate, or other suitable aqueous disinfectants is acceptable; 8.2.4. The quantity of alcohol found in serum shall be divided by a factor of 1.16 to determine the quantity of alcohol in the blood; and 8.2.5. The container (tube or vial) shall be clean and dry, and have an inert, airtight stopper. 5