I am requesting a public hearing on these proposed regulation changes.  A hearing is required per Va Code 2.2-4007.01 “If the agency receives requests for a public hearing from at least 25 persons.”  More than 25 people have requested a public hearing.

My name is Dave Hites.  I have had the displeasure of dealing with the Virginia Alcohol Safety Action Program (VASAP) for more than 3 years.  During that time, my wife and I have collectively submitted more than ten petitions for regulation rule changes to the Commission on VASAP at each and every quarterly meeting since 2018.  

One petition requested lowering the breath sample requirement from 1.5 liters to one liter for all clients to eliminate the administrative burden on the client and ASAPs of having to medically qualify clients for the reduction.  This would have created fewer false positives and would have allowed wider use of the interlock by asthmatics, in turn generating more revenue for the program.  The Commissioners said no.

Another was for enforcement of the timely notification to the interlock client that an interlock violation is being reported as non-compliant.  Va Admin Code 24VAC35-30-150 “non-compliance reporting” gives the agency 5 days to notify the client and the court of an interlock violation, yet there is no recourse for the client or penalty to the case manager/ASAP for failing to notify the client and the court within that time.  Case managers have been abusing this statute of limitations by delaying notification of a violation by months, therefore costing the client more money for monthly calibration and reset fees until their case is heard.  The proposed change was to nullify the violation if it was not reported within the time period set by law.  The Commissioners said no.

One petition simply requested the law be changed so that case managers could not personally extend a client’s interlock time requirement without the benefit of a court hearing.  The reason for the petition was that clients are not being afforded due process by having a non-compliance hearing for a violation accusation.  The Commissioners decided at a recent meeting that it was okay for case managers to do that.  It gets better.  In the petition “agency decision summary”, which is supposed to list the REASON the petition was denied, the reason given was “The Commission on VASAP considered this petition at its December 13, 2019 quarterly meeting and decided to take no action on the petitioner's request.”  They couldn’t even give a legal reason to deny the petition, so they just said no.

This next one is one of my favorites.  The petition asked that the word “warn” be included in VA Admin Code 24VAC35-60-70 F,6 which addresses ignition interlock test results.  The statute currently states "The results of the test shall be noted through the use of green, yellow, and red signals or similar pass/fail indicators.”  The petition request was to change the verbiage to "The results of the test shall be noted through the use of green, yellow, and red signals, or similar pass/warn/fail indicators.”  The Commission staff’s answer to this petition was “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.”

The statute as it is written requires a yellow light. The Commission staff must have missed that requirement when they gave their decision to deny the petition.  LifeSafer and Smart Start claim to have a yellow light on their devices that are certified for use in Virginia.  In essence, the Commission staff now says they don’t have to use it, even though the law requires it.  The ASAP case managers are using the absence of a warning light to defraud clients who think they are in compliance.

I could go on but what’s the point?  The Commission has denied all of our petitions and will likely continue to do so, whether a suggestion is favorable or not.  The Commission staff has refused to correspond with either of us, stating that we have no business with VASAP and that further communication from us will be ignored unless through the service of legal papers or FOIA request.  The staff has afforded the petitioner only two minutes to speak to the Commissioners about each petition, which is not nearly enough time.  They do not want to hear what we have to say.  They will admit no wrongdoing, even when an interlock company (Alcolock) decides to end their longstanding relationship with the state two days after a petition accusing the company of fraud is filed.

I was appointed unanimously in 2017 by the Hampton City Council to the Peninsula ASAP policy board.  Then I got a notice from Peninsula ASAP that I was no longer allowed on their property because I harassed their clients and employees and that the director feared for the safety of her employees.  My appointment was then rescinded due to my inability to attend the public meetings being held on private property, not because of the false harassment accusations levied against me and my wife.  

The regulations for this agency as written have no teeth.  There’s no incentive (or penalty) to the state agency if they do not follow their own laws.

The most glaring and disturbing proposed change to these regulations removes the requirement for interlock devices to be “alcohol specific”.  The Commission staff didn’t even list this change in their agency background document “brief summary”.  The Commission, when faced with an NHTSA admission that interlocks indeed are not ethanol specific, finally conceded that electrochemical fuel cells are NOT alcohol specific as currently required by law.  In order to save the statute and continue to allow ignition interlock companies to operate in the state, the law must be changed to remove the alcohol specific requirement.  The only alternative is to ban the electrochemical fuel cell, which would eliminate interlock use in Virginia.  The Commission staff states the reason for the change is “The proposed regulations no longer include the words “alcohol specific” since ignition interlocks detect various forms of alcohol in addition to drinking alcohol (ethanol) and the current regulations and the Code of Virginia define “alcohol” as being ethanol. This has caused confusion to the public.”

This has caused confusion to the public?  This has caused confusion to EVERYONE.  Legislators and judges have been mislead for YEARS that interlocks only measure one thing … alcohol (ethanol as defined by 24VAC35-60-20).  The result is that non-ethanol readings have been misinterpreted as a true positive for liquor when the alcohol elimination rate of the test results in most cases makes this an impossibility.  Changing the law to eliminate the requirement for interlock devices to be alcohol specific does not eliminate confusion to the public.  Altering the Virginia Code to imply the devices measure ONLY ethanol perpetuates the deception that interlock devices solely measure drinking alcohol.

If VASAP is successful in changing the regulation to eliminate the words “alcohol specific”, then interlock companies cannot be allowed to advertise their devices as alcohol-specific because that would be deceptive to the public and give them the impression that interlocks only detect one alcohol … ethanol.  If an interlock company submitted a proposal including the claim that their devices are alcohol specific, they should be decertified for making false or misleading statements to the Commission in their proposal in response to the agency’s request for proposals, for which the new contract period began July 1, 2020.

Please hold a public hearing regarding these proposed amendments so the Commissioners can hear from me and my wife as to our experience with the evasive actions and lack of accountability the Commission staff has exercised over the entire IID program.  I am requesting that the VASAP Commission consider me and my wife as stakeholders in this agency as VASAP client advocates.  Thank you for your consideration.