5/3/2018 2:59 pm Date / Time filed with the Register of Regulations | VA.R. Document Number: R____-______ |
Virginia Register Publication Information
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Transmittal Sheet: Response to Petition for Rulemaking
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Initial Agency Notice
Agency Decision
Promulgating Board: | Commission on the Virginia Alcohol Safety Action Program |
Regulatory Coordinator: | Richard Foy (804)786-5895 rfoy@vasap.virginia.gov |
Agency Contact: | Richard Foy Field Service Specialist (804)786-5895 rfoy@vasap.virginia.gov |
Contact Address: | Commission on the Virginia Alcohol Safety Action Program Commission on VASAP 701 E. Franklin St., Ste. 1110 Richmond, VA 23219 |
Chapter Affected: | |
24 vac 35 - 60: | Ignition Interlock Regulations |
Statutory Authority: |
State: 18.2 -270.2 Federal: |
Date Petition Received | 05/03/2018 |
Petitioner | Cynthia Hites |
Petition to amend Virginia Administrative Code pursuant to § 2.2-4007.
I, Cynthia Ellen Hites, as a citizen of the Commonwealth of Virginia, pursuant to
Virginia Code § 2.2.-4007, do humbly submit this petition for the following amendment
to Virginia Administrative Code 24VAC35-60-70, to have the VASAP Breath Alcohol Ignition
Interlock Device (BAIID) required breath sample size reduced from 1.5 liters to 1.0
liter. Due to generally smaller lung capacity compared to men, it has been shown
women have 16 times the failed breath sample attempts (aborts) when using the BAIID.
(1)
Failed breath sample attempts can be caused by "not providing enough air or providing
too much air, humming at the incorrect tone or volume, breaks in the hum, or too much
humidity or saliva in the breath sample."
This means women have 16 times the interaction with the machine upon startup, and,
during rolling retests while on Virginia's roadways.
I personally struggled mightily with the basic functionality of the device and experienced
hyperventilation on numerous occasions due to sequential invalid samples during use
of the ignition interlock device.
Incidentally, an overlooked cause of the exponentially higher number of breath sample
aborts for women, is simply tone of voice.
The BAIID anti-circumvention feature requires the driver provide sufficient reverberation
for the device's handset to detect human presence. Of course, women naturally tend
to have higher pitched voices that produce less reverb, and can, and do, force a difficult
and uncomfortable alteration in vocal method to achieve a passing breath sample.
Paramount in my opinion, however, is the fact the maneuver required for the BAIID
breath sample involves not tidal breath, but execution of the vital capacity maneuver
to obtain the breath sample. The vital capacity maneuver obtains the greatest volume
of air that can be expelled from the lungs after taking the deepest possible breath.
Even then, the subject is required to actually force breath out of the lungs into
the BAIID far beyond what's natural, and in my case, experience disorientation via
hypoxia and actual physical lung pain frequently.
"In order to fulfill the minimum 1.5 liter volume requirement...the sixty year old
woman must exhale at least 60% of her vital capacity. Whereas the twenty year old
man would only have to exhale about 25% of his vital capacity. At the same blood
alcohol concentration (BAC), the smaller lung volume would yield a greater breath
alcohol reading." (2)
So, in addition to being 16 times more difficult for women to simply achieve to a
valid breath sample, the requirement alone can skew the test results to reflect an
erroneously high BrAC.
To mitigate these existing human factors that inherently punish women, and others
with similar known, or unknown conditions, to a greater degree; and to initiate a
decrease in the potential for vehicle collision due to distracted driving, lowering
the breath sample requirement to 1.0 liter will be a step closer to closing the disparity
gap of punishment between sexes, and detrimental judicial imbalance currently existing
due simply to physiological differences among offenders.
States the statute 24VAC-35-60-70 F, 4.
"The ignition interlock device shall indicate when a 1.5 L breath sample has been
collected and shall indicate this by audible or visual means. The commission may
authorize service providers to adjust the breath volume requirement to as low as 1.0
L upon receipt of documentation from a licensed physician verifying the existence
of an applicable medical condition. The physician's documentation shall be submitted
in a format approved by the commission."
The one-liter volume breath sample requirement is legally permissible, and I implore
the commission to take under advisement this petition to permanently lower the requirement,
in order to strengthen the integrity of the program, so as to not unwittingly punish
women, and incidentally; asthmatics, COPD sufferers, congestive heart failure survivors,
and undiagnosed pulmonary patients to a greater degree.
Please, dear Commissioners, weigh this petition and begin to create a more judiciously
solid system.
Humbly Yours,
Cynthia E. Hites
(1) An Evaluation of Drivers Using an Ignition Interlock Device: Breath Tests While
Driving. By Ben D. Sawyer and P. A. Hancock
(2) Breathing Related Limitations to the Alcohol Breath Test. By Dr. Michael P.
Hlastala, Ph.D.
Agency Plan
The petition will be considered by the Commission on VASAP at its quarterly meeting
on September 14, 2018.
Publication Date | 05/28/2018 (comment period will also begin on this date) |
Comment End Date | 07/01/2018 |