On April 15, 2018, citing VA Code §2.2-4007, David Hites submitted the below petition to the Commission on VASAP.  The petition is in regard to the definition of "alcohol" in 24VAC35-60-20 as it relates to "alcohol specific" ignition interlock devices.

"Under VA Code §2.2-4007, I David Hites submit the following petition to the Commission on VASAP:

Suspend all future ignition interlock device installations in Virginia until a 100% ethanol specific device can be developed as is required by law.  The current technology being used is NOT specific to ethanol as required by 24VAC35-60-70.

The Commission on VASAP cannot allow electrochemical fuel cells to be used on breath alcohol ignition interlock devices as they are not specific to ethanol, but the problem is that the law requires only this technology which impedes development of newer (lawful) and better technology.  I suggest that someone propose an amendment to the legislation allowing use of any technology that is specific to ethanol.  Until then, all new installations must be suspended as they are ILLEGAL!  The vendors cannot meet the terms of their contracts.  They are subject to the paradox the law has created.

At the March 2018 commission meeting, one interlock vendor, Alcolock, was under scrutiny for using a non-ethanol-specific device to which Alcohol Countermeasure Systems CEO Felix Comeaux admitted, as evidenced in the March 2018 commission quarterly meeting minutes, that his devices do detect other alcohols.  Since it is now known and acknowledged that breath alcohol ignition interlock devices, due to the nature of their technology being an electrochemical fuel cell, can and do detect other substances to a degree that would cause an interlock user to fail a breath test, the vendors are not following Virginia law, which means the vendors are all in breach of contract with the state.

Virginia law states:

24VAC35-60-20 "Alcohol" means ethyl alcohol, also called ethanol (C2H5OH).

24VAC35-60-70 "F. Except where otherwise required in this chapter, all ignition interlock devices shall meet the model specifications for Breath Alcohol Ignition Interlock Devices as set forth in the most current model specifications published in the Federal Register by the National Highway Traffic Safety Administration and operate reliably over the range of motor vehicle environments or motor vehicle manufacturing standards. At a minimum, the following specifications shall be met:  Paragraph 3.  The ignition interlock device shall be alcohol specific, using an electrochemical fuel cell that reacts to and measures alcohol, minimizing positive results from other substances.

Since alcohol is defined as ethanol and interlock devices must be ALCOHOL specific, that would mean that ignition interlocks must measure ethanol ONLY and no other substance, including other alcohols.

Since vendors' contracts stipulate that they will obey all Virginia laws, they have all violated the above statutes and have therefore violated their contracts.  I am requesting that all ignition interlock vendors be suspended from taking on new clients until an ethanol specific device is developed."  

The petitioner's request will be considered at the next meeting of the Commission on VASAP on June 8, 2018.

In accordance with the requirement of Virginia Code § 2.2-4007, Petition #272 was filed with the Virginia Registrar of Regulations on April 16, 2018.

At its meeting on June 8, 2018, the Commission on VASAP considered the petition.  No public comments were submitted to the Virginia Regulatory Town Hall site.

The Commission on VASAP unanimously voted to deny, in its entirety, Petition #272.  The reason for the denial is detailed below:

Virginia Code § 2.2-4007 states that "any person may petition an agency to request the agency to develop a new regulation or amend an existing regulation."  Petition #272 stated the petitioner's interpretation of the existing ignition interlock regulations, specifically with regard to the definition of "alcohol," and his belief that ignition interlock vendors are not complying with the law; however, the petition does not "specifically" propose any new regulation or amendment to existing regulations.  Mention is made in the petition to "propose an amendment to the legislation" and to "suspend all future ignition interlock device installations in Virginia."  VASAP cannot suspend the installation of the device as Virginia code requires that the devices be installed.

Any legislative changes would require action of the Virginia General Assembly.