Virginia Regulatory Town Hall
Commission on the Virginia Alcohol Safety Action Program
Commission on the Virginia Alcohol Safety Action Program
Ignition Interlock Regulations [24 VAC 35 ‑ 60]
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9/18/23  10:49 pm
Commenter: Cynthia Hites, Virginia Ignition Interlock Forum

Interlock readings cannot be used as evidence

The ignition interlock is a great and effective tool to prevent drunk driving.  The fuel cell is extremely sensitive and accurate for hydroxyl compounds and will prevent a drunk person from driving 100% of the time. The problem is just that it's being misused.  When it began, the law required the interlock devices be "alcohol specific", meaning to only detect drinking liquor (the compound C2H6O). However, the truth is that fuel cell interlocks are not alcohol specific. 

In 2021, after, like, 7 petitions trying to explain this to the VASAP agency they actually removed the performance standard for the entire interlock program, dropping the requirement for the instruments to be "alcohol specific". It was done in a very surreptitious manner, buried in the middle of a legislative change.  It could be construed as this deliberately to obscure this act from the Commissioners. 
So the program started out with everyone thinking these things detect only alcohol, but that was a lie.  Now the VA code has been changed and VASAP admits IIDs don't detect only drinking alcohol, but they're still holding people to the standard they've dropped. 
What's happening is when a person fails an IID test they are prevented from driving, which is totally according to the law, but then VASAP is going beyond instrument capability and using the data from this screening device as evidence to condemn people and restart their interlock time, (outside of the courts' jurisdiction and knowing full well the instrument may, or may not, be detecting alcohol.  
This isn't happening to just a handful of people.  In 2022 there were 7,474 interlocks and a whopping 6,378 "secondary reviews", which are the failed readings after ASAPs try to weed out false positives. That is a staggering number of program participant failures, and as much as you aggrandize and laud this program, it has an abysmal success rate. This whole thing is a hot mess and you don't even realize the (totally unnecessary) crippling administrative burden you're placing on your program by using failed IID readings as evidence against people.  People are being extended over and over and kept in the program, while VASAP collects $20 from each calibration.  It can only be installed for a predetermined length of time
Look, this is a simple preventive tool, it's a gate. It prevents an engine from starting if alcoholic breath is suspected. Once the ignition is on, the interlock function is obsolete. You can't then just decree all hydroxyl detector high test results "violations" because you feel like it. The machine prevented the drunk driver. That's it. That's the punishment. As soon as it stops the potential drunk driver, its job is over. 
Considering all failed IID readings is akin to using a metal detector and claiming every reading it gives is a measurement of gold.  The instrument will detect metal and indicate strength of signal, but you have to unearth the object to discover which metal is being sensed.  It's like saying every single metal detector hit is gold, when in reality, most of the time it's rebar. 
No readings can be used as evidence because the fuel cell is an unsophisticated, indiscriminate sensor that is just a screening lockout device which doesn't meet the standard of an evidential breath test (EBT).  Chief Legislative Officer for Lifesafer, Ken Denton even came to Richmond and "...clarified that ignition interlocks are screening devices unlike evidentiary breath alcohol machines...". 
An EBT is maintained and calibrated by the State, has an observer and utilizes a fuel cell in conjunction with infrared spectroscopy. 
You guys are using a preliminary breath test (PBT) as an EBT and this is totally unethical. 
People should be able to check and see if they're below .02 BrAC without fear of more punishment. It's a learning tool and when you criminalize it, that negates the positive effects it can have.  People need to get an idea of when they should stop drinking the night before in order to be able to start their car in time for work the next morning, and not be terrified that three months later they'll be slapped with a "violation". 
Once someone is docked at work for being late, they'll alter their behaviour - and, in addition to preventing drunk driving, the learning aspect is what this tool is really for. A failed IID test isn't a "violation" because 1) the device is installed and calibrated as mandated and 2) any alcohol related violation was prevented.  3) The fuel cell cannot distinguish between hydroxyl compounds.  A person should be able to fail 100 times a day - it'll prevent the crime every time. 
The bottom line is the "IID shall lock out an offender when a BAC reaches the fail point" and it either locks an ignition or allows it to fire. That's it. Finito. 
Commissioners, you've criminalized a screening device. You've monetized a lockout device. In 2021 you removed the performance standard for the interlock devices. Now please stop holding people to that standard and stop using failed IID readings as evidence.
CommentID: 220354