9/11/2020 1:31 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
Initial Agency Notice
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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 Street, Suite 1110 Richmond, VA 23219 |
Chapter Affected: | |
24 vac 35 - 60: | Ignition Interlock Regulations |
Statutory Authority: |
State: 18.2 -270.2 Federal: |
Date Petition Received | 03/10/2020 |
Petitioner | Cynthia Hites |
I, Cynthia Hites, a citizen of the Commonwealth of Virginia, pursuant to Virginia
Code Section 2.2-4007, do humbly submit this petition for the following amendment
to the specific verbiage within Virginia Administrative Code 24VAC35-60-70, F, 6:
\\\\"The results of the test shall be noted through the use of green, yellow, and
red signals or similar pass/fail indicators. No digital blood alcohol concentration
shall be indicated to the offender.\\\\"
With the insertion of the word \\\\"warn,\\\\" I request the statute be amended to
read:
\\\\"The results of the test shall be noted through the use of green, yellow, and
red signals, or similar pass/warn/fail indicators. No digital blood alcohol concentration
shall be indicated to the offender.\\\\"
ASAPs can cite an offender with a violation if that offender fails to reach \\\\"zero\\\\"
BrAC within 15 minutes of a failed IID reading.
The problem lies in the fact that, currently, the State and the Interlock companies
operate on two separate standards of \\\\"zero.\\\\"
Most people assume a Virginia ignition interlock prevents a car from starting when
alcohol is detected. This is not true. In the small window between .000 and .02,
a green light comes on, the IID display reads \\\\"Start Engine,\\\\" the car is permitted
to start, and the printed datalog reads \\\\"Standing Pass.\\\\"
The problem is, that without a yellow caution light, <.02, when the green light is
displayed and the car starts, the driver can only assume they\\\\'ve reached zero
and cleared the violation. No one has any idea they need more blows to reach zero
and avoid a violation.
This is why the law says \\\\"green, yellow and red,\\\\" because without the yellow,
the disparity between the two standards of zero leaves open a small \\\\"window of
fraud.\\\\"
This allows an ASAP to claim an accusation of \\\\"At 2:13 P.M. a BAC reading of 0.035
was registered. It was not cleared to zero within 15 minutes.\\\\" When, really,
at 2:13 P.M. a .035 reading was indeed registered, however at 2:18 P.M. a .016 pass
is logged, and a subsequent .012 passing test is recorded before turning off the car.
This client and the passenger never saw a yellow light on the Alcolock device. They
had no idea they didn\\\\'t reach zero, and this pending case wasn\\\\'t filed until
almost 6 months after the event.
I also experienced yellow light fraud. While 2 months sober, on July 21, 2016 a failed
rolling retest with a BrAC of 0.058, plummeted within nine minutes to a passing .019.
This could not be ethanol, and it PASSING, yet it was considered a violation.
I coincidentally have a video of the entire event. The green light appearing, the
\\\\"Start Car\\\\" message, and my confusion as to what was occurring.
The yellow caution light is shown and explained in the Alcolock LR Instruction Manual,
and the Alcolock training video echoes the same device feature.
\\\\"Depending on your jurisdiction, if your breath sample contains an amount of alcohol
over the warning threshold but not enough alcohol to fail a test, the handset will
indicate \\\\"Caution\\\\" and the indicator light will turn yellow. Please note
that if you are aware your alcohol level is rising when you receive a \\\\"Caution\\\\"
do not start the vehicle engine since you are not likely to pass a retest and it may
not be safe to drive. When you receive a \\\\"Caution\\\\" message, you will have
two options. You may wait 5 minutes and try the test again if you are certain there
is no alcohol in your body, or you may press the bottom button to acknowledge that
you intend to drive with alcohol in your system. If your breath sample contains an
amount of alcohol above the fail level the handset will indicate a \\\\"Lockout\\\\"
message with a timer...\\\\"
Relying upon a non-ethanol-specific device, with its yellow caution light disabled,
the ASAPs are able to cooperate with IID companies to violate totally compliant and
unsuspecting citizens.
Couple the absence of the yellow light, with automatically restarting 6 month IID
time, and filing violations late, offenders are allowed to be suspended in a perpetual,
indefensible loop, while their fees get divvied between the respective IID company,
VASAP and ASAPs.
It\\\\'s an unsettling cooperation between the State and the contracted vendors, and
perhaps amending the wording of law will prompt companies to comply with what\\\\'s
already mandated. The enigmatic yellow caution light.
Agency Plan
Due to the COVID-19 situation, this petition will be rescheduled to be heard at a
later date to be determined.
Update: This petition will be considered at the September 11, 2020 meeting of the
Commission on VASAP.
Publication Date | 03/30/2020 (comment period will also begin on this date) |
Comment End Date | 05/29/2020 |
Take no action
Agency Response Date | 09/11/2020 |
The Commission on VASAP considered this petition at its September 11, 2020 meeting
and decided to take no action.
Virginia regulations do not require that ignition interlocks have a yellow warning
light. A similar pass/fail indicator is sufficient, and all ignition interlock companies
operating in Virginia are in compliance.
Requiring a yellow warning light that functions in the manner requested by the petitioner
would require some ignition interlock companies to produce new hardware, and other
companies to make software changes. This would be impractical and cost prohibitive.