Under 2.2-4007 I submit the following petition including attached documents: 

July 2012: VASAP Interlock Inception. Paradoxically, the Virginia interlock performance standard was set as "alcohol specific", and the design standard was set as the fuel cell. (24VAC35-60-70 "the machines shall be specific to alcohol", 24VAC35-60-20 "Alcohol is defined as ethanol (C2H5OH)")

August 2020: Virginia Townhall Form: TH-02 "Section 24VAC35-60-70(F)(3) removes the reference to ignition interlocks being "alcohol specific" to prevent the public from assuming the device only detects ethanol to the exclusion of other types of alcohol." 

January 2021: Virginia Townhall, Form: TH-03:  "VASAP recognizes that ignition interlocks can detect alcohols other than ethanol…"

March 2021: VASAP removes Virginia's interlock performance standard: "The term "alcohol specific" is being deleted to remove any suggested claim that interlocks will only detect ethanol", Virginia Register of Regulations Volume 37, Issue 14, p

December 2021: Minutes of Quarterly VASAP Meeting, Chief Legislative Officer for Lifesafer, "Mr. Ken Denton clarified that ignition interlocks are screening devices unlike evidentiary breath alcohol machines..."

I submit the addition of the following verbiage to the end of  24VAC35-60-70(F)(5): "Under no circumstance shall ignition interlock test results be used as evidence of noncompliance."

An ignition interlock device (IID) "prevents a motor vehicle ignition from starting if a driver's blood alcohol content exceeds .02%." (§18.2-270.1)  If the IID test result is under .02% BrAC, the car is allowed to start. If the IID test result is over .02% BrAC, the car's engine will not start.  This is the breadth and scope of the ignition interlock; it either allows the driver to start the car or it doesn't. 

The IID fulfills the intent of the law, in its limited capacity as a preliminary breath test (PBT) for ethanol, by locking the ignition when a certain level of alcohol is detected.  The only function of the device is to either lock the car's ignition or allow it to start.  That is the punishment, and interlock installation is the compliance.  This device will always stop the drunk driver from starting the car. 

VASAP has criminalized a screening device by using IID readings as evidence of noncompliance.  Chief Legislative Officer for Lifesafer "Mr. Ken Denton clarified that ignition interlocks are screening devices unlike evidentiary breath alcohol machines..." (12/2021 VASAP Quarterly Meeting minutes)

VASAP's IID program was based on the false premise that IID devices detect only alcohol.  This is not true, as they detect many hydroxyl compounds, aka "alcohols".  Sober people can receive failed readings for all sorts of causes, beyond their control, due to sources other than consumed alcohol.  Routine metabolic processes and biomarkers for disease are just a few causes of sober failed readings. 

Virginia Townhall August 2020 states: "Section 24VAC35-60-70(F)(3) removes the reference to ignition interlock being "alcohol specific" to prevent the public from assuming the device only detects ethanol to the exclusion of other types of alcohol." In January 2021 it was revealed on the same public forum that "VASAP recognizes that ignition interlocks can detect alcohols other than ethanol...The term "alcohol specific" is being deleted to remove any suggested claim that ignition interlocks will only detect ethanol".

In March of 2021, the law was changed to be even more deceptive. The required performance standard of being "alcohol specific" was removed, and the law now implies interlocks react to and measure only ethanol, neither of which is true.  

It's also very important to understand that just because an interlock is calibrated for ethanol doesn't mean it can't detect other compounds at failing levels. In this case, being properly calibrated merely means that when ethanol is detected, the reading will be accurate. It doesn't mean the instrument detects only ethanol. 

These devices are being grossly misused but the solution is simple and cost effective. No IID readings can be used as evidence against someone.  Interlocks are not rolling breathalyzers that have the capability of determining alcohol consumption. They interlock with the ignition if one or more hydroxyl compounds are detected; their function ceases once the ignition is on.  

These instruments detect many compounds, that's why they're just screening devices for alcohol. VASAP has removed the standard for IIDs to be "alcohol specific" because the fuel cell cannot meet it, yet they are still holding Virginians to that standard, and this is unethical. Interlock readings cannot be used as evidence of noncompliance. 

The VASAP IID User Agreement requires users to sign a document stating "Breath tests above the fail point...are considered violations", yet VASAP now understands it cannot be assumed a failed reading is due to ethanol. 

Fuel cells are very sensitive to and very accurate for hydroxyls. They will lock the car every time a breath sample over .02% BrAC is registered, but IIDs can never determine which compound(s) within the alcohol family are being detected.  Fuel cells can’t qualify compounds, therefore can’t quantify compounds.  

In 2021, according to FOIA, there were 7,889 IIDs installed in Virginia. During this same timeframe, according to the 2021 VASAP Annual Executive Summary, there were 6,843 requests for secondary interlock reviews. This is an 86% failure rate.  In 2022 there were 7,474 IIDs installed (FOIA) and 6,378 secondary reviews. (2022 VASAP Annual Executive Summary) This is an 85% failure rate. 

These statistics are astronomically high and unacceptable, any way you interpret them. Either you have thousands of people trying to drive drunk with an interlock, which is bad, or you have thousands of fails for non-consumed alcohol, which is bad.

The fuel cell has extremely limited capability, and an interlock can only be used according to the law; as a screening lockout device. VASAP has been going above and beyond the law to keep people on the interlock in perpetuity by using failed readings as evidence. 

The readings from this instrument do not qualify as an evidential breath test (EBT) because it's just a PBT.  VASAP should never restart anyone's 6 month interlock time based on a failed IID reading because it can, knowingly, be a false positive for ethanol. 

Interlocks can only be installed for a predetermined length of time because failed readings are expected with a non-alcohol specific device, and now VASAP admits the interlock is non-alcohol specific.  They quietly changed the law to reflect this, but are still penalizing people for failed IID readings they know can be generated from many compounds other than drinking alcohol. 

VASAP has monetized the interlock requirement by criminalizing readings from a screening device. This entire program is based on the DUI catching, alcohol-specific fallacy when the ignition interlock is just a DUI preventing lockout device that should be installed only for a predetermined duration. 

Humbly submitted, 

Cynthia Hites 

This petition will be considered at the December 8, 2023 Commission meeting.  

During its December 8, 2023 meeting, the Commission on VASAP denied this petition, taking no action for the following reason(s):

The petitioner's recommendation to add the language "under no circumstance shall ignition interlock test results be used as evidence of non-compliance" to 24VAC35-60-70(F)(5) contradicts Virginia Code 18.2-270.1, which requires a minimum of six consecutive months without alcohol-related violations of the interlock requirements.

In addition, the petitioner's recommendation contradicts multiple court orders throughout the Commonwealth requiring alcohol-related events, on an ignition interlock device, to be returned to the court as violations.