Chapter Trans 313

Trans 313.03(24) (24) “Tampering” means an unauthorized, intentional overt act or attempt to remove, bypass, adjust, alter the settings of, or disable a device or to disconnect a device from its power source. “Tampering” does not include disconnecting the device from its power source during vehicle or device service, nor disconnection of a handset as authorized under s. Trans 313.04 (5) (k).

Trans 313.03(25) (25) “Vehicle module” means the part of a device that houses the components that interface with a vehicle.

Trans 313.03(26) (26) “Vendor” means a retail or wholesale supplier of an approved device, and may include a service provider.

Trans 313.03(26m) (26m) “Violation” means one or more of the following:

Trans 313.03(26m)(a) (a) A breath sample that is above the alcohol setpoint.

Trans 313.03(26m)(b) (b) Failure to provide a passing breath sample within the 5-minute retest window.

Trans 313.03 Note Note: Violation does not include disconnecting the device from its power source during vehicle or device service, nor disconnection of a handset as authorized under s. Trans 313.04 (5) (k).

Trans 313.03(27) (27) “Violation reset” means that a device enters a status in which a reminder is provided to the device user that the device will enter permanent lockout mode unless taken to a service center by the 7th day following the device entering violation reset status.

Trans 313.03 History History: Cr. Register, August, 1993, No. 452, eff. 9-1-93; CR 20-020: am. (intro.), (3), cr. (3m), (4m), (6m), am. (7), renum. (8) to Trans 313.01 (2) and am., r. and recr. (9), am. (10), r. (14), cr. (14g), (14r), (16g) to(16r), am. (17), r. (19), am. (20), cr. (20m), am. (21), cr. (21m), (22m), (23m), am. (24), r. and recr. (25), am. (26), cr. (26m), renum. (27) (intro.) to (27) and am., r. (27) (a) to (c) Register September 2021 No. 789, eff. 10-1-21; correction in (intro.) made under s. 35.17, Stats., Register September 2021 No. 789; correction in (intro.), (24) made under s. 35.17, Stats, Register October 2022 No. 802.

Trans 313.04 Trans 313.04 Device approval procedure.

Trans 313.04(1) (1) Approval requirement.

Trans 313.04(1)(a) (a) No device may be leased, sold, serviced, repaired, installed or used unless the model and any system firmware or software used on the device have been approved by the department in accordance with the requirements of this chapter. Approval may be granted by testing the functionality of the device with the proposed changes.

Trans 313.04(1)(b) (b) Device approval is personal to an applicant and cannot be assigned or transferred. Upon sale of production rights to a device, change in ownership of a manufacturer or vendor, or other change resulting in a new person seeking to distribute devices in this state, the new person must apply for device approval. The department may waive some or all of the testing of the device portion of the approval process if the new applicant is able to demonstrate that no substantive changes to the device have been made since the prior approval.

Trans 313.04(2) (2) Application.

Trans 313.04(2)(a) (a) An applicant may apply for approval of a device by submitting a written application to the department in the manner prescribed in this chapter on the department’s form, and shall certify that the device:

Trans 313.04(2)(a)1. 1. Does not impede the safe operation of a vehicle;

Trans 313.04(2)(a)2. 2. Minimizes opportunities to bypass the device;

Trans 313.04(2)(a)3. 3. Performs accurately and reliably under all circumstances;

Trans 313.04(2)(a)4. 4. Minimizes inconvenience to customers and other vehicle operators;

Trans 313.04(2)(a)5. 5. Satisfies the requirements for certification set forth in this section, and;

Trans 313.04(2)(a)6. 6. Prevents a customer from starting a vehicle when the customer has a prohibited alcohol concentration.

Trans 313.04 Note Note: The application form SP4010 may be obtained by sending an email request to [e-mail] or via U.S. Mail at Chemical Testing Section, 3502 Kinsman Blvd., Madison, WI, 53704.

Trans 313.04(2)(b) (b) The applicant shall include all of the following information in an application for device approval:

Trans 313.04(2)(b)1. 1. The name and address of the manufacturer of the device.

Trans 313.04(2)(b)2. 2. The name and model number of the device. A separate application is required for each model or type of device.

Trans 313.04(2)(b)3. 3. A detailed description of the device including complete instructions for installation, operation, service, repair and removal, including all documents used as training materials or manuals for installation, maintenance or removal of the device at service centers.

Trans 313.04(2)(b)4. 4. Complete description of device functionality including technical specifications describing the device’s accuracy, reliability, security, data collection and recording, tamper detection, alert mode and environmental features.

Trans 313.04(2)(b)5. 5. A complete and accurate copy of an independent laboratory report issued to the applicant substantiating that the device meets or exceeds the minimum federal standards adopted in sub. (5). The report shall be submitted with a notarized certification from the independent laboratory and shall include copies of the laboratory’s certificates of accreditation.

Trans 313.04 Note Note: Wisconsin requires devices to maintain calibration stability over a period of at least 67 days so that the devices may be relied upon as accurate from service date to service date.

Trans 313.04(2)(b)6. 6. A description of the applicant’s present or planned provisions for distribution and service of the device in Wisconsin. The applicant shall, within 6 months of receipt by the department of an application for approval of a device, provide the chemical testing section with a list of all locations in Wisconsin where the device may be purchased, installed, removed, serviced, repaired, calibrated, inspected and monitored.

Trans 313.04(2)(b)7. 7. A certificate from an insurance company licensed in Wisconsin evidencing that the manufacturer holds product liability insurance as required in s. Trans 313.05.

Trans 313.04(2)(b)8. 8. Indication of whether the manufacturer or manufacturer-approved authorized device repair facility, or both, will repair handsets and vehicle modules. If any device repair facilities are not directly operated by the manufacturer, the qualification and background requirements for repair technicians at those facilities must also be submitted to the department.

Trans 313.04(2)(b)9. 9. Copies of all contracts, lease agreements, and other form documents used by the service providers to enter into a contractual relationship with a customer.

Trans 313.04(2)(b)10. 10. A list of other jurisdictions in which the applicant applied for approval of the device in that jurisdiction and a statement as to whether the application was approved, denied, withdrawn, remains pending, or was subject to some other disposition. If the application was denied, withdrawn, or subject to some other disposition, the applicant shall provide an explanation for that action on the application and copies of all documents from that jurisdiction documenting the decision in that jurisdiction and the reasons for that decision.

Trans 313.04(2)(b)11. 11. A release authorizing any other jurisdiction to share with the department any and all tests or evaluations of the device, data derived therefrom, and all materials provided to the other jurisdiction in support of that other application.

Trans 313.04(2)(b)12. 12. A certificate of authority or registration, obtained from the Wisconsin Department of Financial Institutions, in accordance with s. 180.1501 or 183.1004, Stats., or a copy of the articles of incorporation for any cooperative filed in accordance with s. 185.82, Stats., for all manufacturers, vendors and service providers anticipating to lease, sell, service, repair, install or uninstall the device in Wisconsin.

Trans 313.04(2)(b)13. 13. All relevant manufacturer, vendor and service provider documents relating to the quality assurance of the calibration procedure and device verification checks.

Trans 313.04(2)(b)14. 14. An affirmation, on the department’s form, of all the following:

Trans 313.04(2)(b)14.a. a. That the applicant will provide, at the written request of the state, or any prosecutor in this state, testimony that is sought in any civil or criminal proceeding or administrative hearing regarding the device, its manufacture, use, or function, its installation, repair or removal, interpretation of any recorded report or information from or about the device, or the performance of any duties required under this chapter, without cost to the state, county, municipality, town, police agency, or prosecutor.

Trans 313.04 Note Note: If allowed under judicial rules, local rule or order, this testimony may be provided through teleconferencing or an online remote process.

Trans 313.04(2)(b)14.b. b. That the manufacturer will provide statewide service for the device in accordance with s. Trans 313.09 (1).

Trans 313.04(2)(b)15. 15. Contact information for its registered agent for service of process in this state. The applicant shall notify the department if its registered agent changes.

Trans 313.04(2)(b)16. 16. The minimum qualifications for a manufacturer-approved authorized service center and training materials provided to or used by manufacturer-approved authorized service centers.

Trans 313.04(2)(b)17. 17. If the device has previously been evaluated by the department, an explanation of all modifications made to the hardware and software of the device since that evaluation, a data supported explanation as to why the applicant believes that the modifications made to the device should result in the successful evaluation of the device, and any test results for the device the applicant has performed.

Trans 313.04 Note Note: This provision is intended to reduce waste by eliminating a requirement to re-evaluate a device that failed testing previously, unless the applicant can explain and demonstrate with evidence the basis for believing the device will pass if retested.

Trans 313.04(2)(b)18. 18. A document that clearly describes the manufacturer’s or vendor’s quality control process for resolving noncompliance with the requirements of this chapter by its service providers.

Trans 313.04(2)(b)19. 19. An explanation of responsibility for responding to consumer questions and complaints, as required by s. Trans 313.10 (2) (c).

Trans 313.04(2)(b)20. 20. Any other information required on the department’s form.

Trans 313.04(2)(c) (c) An applicant shall respond to all the department’s inquiries into any deficiency of the applicant’s application in a timely manner. If an applicant fails to respond to and remedy any application deficiency brought to its attention by the department within 90 days, the application is considered incomplete and the applicant shall restart the application process.

Trans 313.04(3) (3) Time for decision. The department shall approve or disapprove a device not later than 30 days after receipt of all required application materials and completion of all equipment testing.

Trans 313.04(3m) (3m) Evaluation queue.

Trans 313.04(3m)(a) (a) Once the department receives an application with all the information required in sub. (2), the department shall place that application in an evaluation queue maintained by the department.

Trans 313.04(3m)(b) (b) The department shall evaluate devices in the order its corresponding application is placed in the evaluation queue, except as provided in par. (d).

Trans 313.04(3m)(c) (c) The department shall notify an applicant at the time its device reaches the point in the evaluation queue that the department is prepared to begin testing the device.

Trans 313.04(3m)(d) (d) The department may require installation of devices under sub. (4) (b) by a prescribed deadline. Failure to install devices by that deadline may result in the device evaluation being delayed. If an applicant fails to install devices by any required deadline, the department may provide notice to the next applicant in the evaluation queue and evaluate that other device.

Trans 313.04(4) (4) Evaluation.

Trans 313.04(4)(a) (a) The applicant shall submit at least two devices, as specified in the application, to the department for evaluation. The department may require different functions or features to be activated for the two devices.

Trans 313.04(4)(b) (b) The applicant, or its agent on its behalf, shall install the device in a vehicle provided by the department. When applicable, the applicant shall provide the department with an adequate supply of disposable mouthpieces.

Trans 313.04(4)(c) (c) The department shall independently evaluate each device to ensure compliance with the requirements in sub. (5). The evaluation criteria include, but are not limited to, repeated testing of alcohol-laden samples, filtered samples, circumvention attempts and tampering.

Trans 313.04(4)(d) (d) During the evaluation period, the applicant shall provide the department with a computer that has all software for the department to access test data from the device in near real-time or no later than 24 hours after a test is performed, or some other mechanism that provides that functionality.

Trans 313.04(4)(e) (e) If the department disapproves a device based on a failed evaluation, an application for the device may not be evaluated, nor placed in the evaluation queue under sub. (3m) (a), nor may the device be evaluated for 6 months. The department may waive this required 6-month period if the application is accompanied by all application materials specified in sub. (2) (b) 17.

Trans 313.04(5) (5) Standards and specifications. An applicant shall ensure that any device that it distributes for use in the state of Wisconsin meets all the following requirements:

Trans 313.04(5)(a) (a) Minimum federal standards for devices. All devices shall meet or exceed the standards established by the U.S. department of transportation, national highway traffic safety administration, identified as “Model Specifications for Breath Alcohol Ignition Interlock Devices (BAIID)” 78 Fed. Reg. 89, pp. 26849–26867 (May 8, 2013).

Trans 313.04 Note Note: This federal standard is available on file at the Legislative Reference Bureau and from the Department of Transportation, Division of State Patrol, Chemical Testing Section, 3502 Kinsman Blvd, Madison, WI, 53704-2549, or online at https://www.govinfo.gov/content/pkg/FR-2013-05-08/pdf/2013-10940.pdf.

Trans 313.04(5)(b) (b) Retest feature. The device shall be programmed to have a retest feature. The retest feature shall require the driver to submit to a sample sequence no more than 5 minutes after the vehicle is made operable following a successful start sequence. The retest feature shall require additional subsequent tests at random intervals of 5 to 30 minutes until the vehicle ceases operation.

Trans 313.04(5)(bm) (bm) Failed retests. The device’s retest feature shall be programmed to include all of the following features:

Trans 313.04(5)(bm)1. 1. ‘Activation of Alert.’ A driver’s failure to provide a breath sample that is less than the device’s alcohol setpoint shall trigger a confirmation retest sequence, as described in subd. 2. If the driver does not provide a passing breath sample in response to the confirmation retest, the device shall activate the device’s alert mode until the earlier of the time the vehicle is shut off, or the time the driver provides a passing breath sample to the device.

Trans 313.04(5)(bm)2. 2. ‘Confirmation retest.’ Upon activation of a confirmation retest sequence under subd. 1., a device shall wait 2 minutes and then commence a sample sequence. If no passing sample is provided as part of the sample sequence, the device shall activate its alert mode. Upon expiration of the sample sequence, the device shall resume normal retest intervals.

Trans 313.04 Note Note: If the vehicle is shut off before a passing breath sample is provided, a passing breath sample shall be required to restart the vehicle. See par. (j) 2. and 3.

Trans 313.04(5)(c) (c) Testing protocol feature. Whenever the device demands a breath sample, the device shall be programmed to allow multiple attempts, but no fewer than 3 attempts, to provide a breath sample within a 5-minute period.

Trans 313.04(5)(ce) (ce) Start sequence. The device shall be programmed to allow the customer to operate the vehicle if the device records a passing breath sample during the start sequence. If the device fails to record a passing breath sample in the start sequence, then the device shall prevent the customer from operating the vehicle.

Trans 313.04 Note Note: This paragraph does not require a time period to elapse between start sequences. “Temporary lockouts” that were required under prior law are eliminated.

Trans 313.04(5)(cm) (cm) Permanent lockout feature. The device shall be programmed to enter a permanent lockout condition when service is not completed within 7 days of a service reminder.

Trans 313.04 Note Note: Entering permanent lockout mode prevents initiation of a start sequence for the vehicle. See s. Trans 313.03 (17).

Trans 313.04(5)(cs) (cs) Violation reset. The device shall be programmed to have a violation reset feature that is triggered by any of the following:

Trans 313.04(5)(cs)1. 1. Three violations.

Trans 313.04(5)(cs)2. 2. Detection of one or more tampering or circumvention attempts.

Trans 313.04(5)(d) (d) Recorded data. A device shall record data in a format that allows the data to be wirelessly transmitted or printed and that includes all of the following:

Trans 313.04(5)(d)1. 1. The date and time of any use or attempted use of a vehicle.

Trans 313.04(5)(d)2. 2. The date and time of any attempt to tamper, circumvent or bypass the device.

Trans 313.04(5)(d)2m. 2m. The date and time of any sample reported by the device.

Trans 313.04(5)(d)3. 3. The result of any request for a sample made by the device including, if a breath sample was provided, the date, time and alcohol concentration, in grams per 210 liters, of each breath sample provided to the device.

Trans 313.04(5)(d)3m. 3m. The date and time of any activation or deactivation of the device’s alert mode.

Trans 313.04(5)(d)4. 4. The date and time of any malfunctions of the device.

Trans 313.04(5)(d)5. 5. The date and time of any failures to provide retest samples.

Trans 313.04(5)(d)6. 6. The date that a “service required” message is issued to the customer.

Trans 313.04(5)(d)7. 7. The date that any service is performed.

Trans 313.04(5)(d)8. 8. All images captured by the device, including the date and time those images were captured.

Trans 313.04(5)(dm) (dm) Electronic transfer of data. The device shall provide a means of electronically transferring the data collected under par. (d) to the database described in sub. (6). Data related to violations shall be transmitted using near real-time reporting of violations via electronic transmission as provided in par. (m). Usage and other data shall be reported by means of a downloaded report of all required data fields downloaded from the device at time of service for the service interval preceding the service. All data shall be provided in the format specified by the department.