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Commission on the Virginia Alcohol Safety Action Program
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Commission on the Virginia Alcohol Safety Action Program
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Ignition Interlock Regulations [24 VAC 35 ‑ 60]
Action Amendments to Virginia's Ignition Interlock Regulations
Stage Final
Comment Period Ends 3/31/2021
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3/30/21  1:57 am
Commenter: David Hites

Vote of no confidence
 

The Virginia Alcohol Safety Action Program (VASAP) is a scandalous state agency that should be shut down, but it won't be because no one on the Commission or in the Virginia State Assembly cares about corrupt ignition interlock companies or ASAP case managers.  The Commission is in the interlock industry's pocket. 

Alcolock interlock devices are, as March 30, 2021, still approved for use in Virginia, even though the company (within 48 hours of being accused of fraud) stopped doing business with the state on July 1, 2020 after a long-standing relationship.  Why are these devices still approved for use?  Good luck getting an answer out of the Commission staff.

Any potential future breath alcohol measuring device that solely detects ethanol might as well never be created.  The Commission has decided, in its infinite wisdom, that the inaccurate fuel cell shall be the only accepted technology.

Instead of changing the definition of alcohol in Virginia law (24VAC35-60-20 definitions) from only ethanol to alcohols (the hydroxyl group), which is what fuel cells inherently detect, the Commission is now in the final stage of REMOVING the requirement for ignition interlocks to only measure ethanol. 

Instead, the electrochemical fuel cell will become the only technology allowed to be used in ignition interlock devices statewide.  That would be great if ethanol was the only alcohol fuel cells measure, but it's not.  Fuel cells detect the alcohol group and have recorded numerous false positives for ethanol at a level high enough to register a failed breath attempt.  Unsurprisingly, VASAP tracks neither the number of interlock violations committed by clients nor the administrative result of the violations.

The Commission has chosen to be deceptive about the fuel cell's capabilities, leading anyone who reads the changed law to believe that interlocks only detect ethanol, when in fact they can and do (even when calibrated for ethanol) detect a host of other alcohols at a level high enough to cause the interlock to record a failed reading.  At what concentration these other alcohols will yield a failed reading will never be known because the National Highway Transportation & Safety Administration doesn't require the interlock companies to test their devices against any alcohol aside from ethanol.

Fuel cell technology is patented by each interlock company in their devices so it's easy to understand why they would want to keep it.  The problem is that it doesn't work as advertised.  The Commission knows this, but they don't care.  They only want to keep the fuel cell because that's what the interlock industry lobby wants.

I first became aware that VASAP existed about 5 years ago.  I learned that there's a staff that does the work of the Commission and that the Commissioners, who include state senators and delegates, gather quarterly with the staff for a public meeting to discuss VASAP business.

My wife and I began to attend these meetings in June of 2017 and have been attending ever since.  I never wanted to know about VASAP but was forced to become educated when my wife was wrongly accused with falsified interlock readings. VASAP's Chris Morris said to our faces about multiple interlock violations (subsequent to a non-compliance conviction) "I can tell that's not consumed alcohol."  Her case manager KIM YOUNG BARCLIFF, who is still employed by ASAP, is directly responsible for provable fraud against her.  My wife had to appear in circuit court after 21 months on the interlock (which should have ended after 6 months) just to have the case dismissed, without a word said.  The appeal cost $625 plus $700 for extended interlock fees that never should have been charged.  Again, VASAP doesn't care and will never admit wrongdoing.

Since her acquittal in circuit court, no apology or refund has come our way.  Instead, the VASAP staff have refused to address our concerns about Peninsula ASAP, citing it is the Peninsula ASAP policy board to whom we should be addressing our issues.  Attorney General representative Janet Baugh sent us a letter in 2017 stating that further communication with VASAP would not be answered unless through service of legal papers or FOIA request.  The Commission staff has been as unhelpful as possible ever since. 

VASAP used to keep an archive of their meeting minutes on their website, but not anymore.  They used to put the total number of referrals for the year in their annual report, but not anymore.  

I was unanimously appointed to the Peninsula ASAP policy board by the Hampton, Va. City Council in 2017 but a month later, my appointment was rescinded solely because the board meetings are held on Peninsula ASAP property. I've been barred from the property through a no trespassing authorization, at the behest of former Peninsula ASAP director, Angela Fortune.  She lied to obtain the authorization stating that my wife and I harassed clients and employees, and that she feared for her safety and that of her employees. 

Ms. Fortune also lied on the witness stand, stating she'd been present with me, as she locked me in the Peninsula ASAP lobby when I tried to attend a policy board meeting. I was trapped alone with a stranger, and no staff in sight.  Ms. Fortune testified that she was with me the entire time until police arrived to escort me from the property.  Video proves otherwise, as does a corroborating 911 call.  

VASAP has denied our repeated requests for amendments to the VASAP administrative code.  Together we have submitted more than a dozen petitions from topics such as lowering the interlock breath requirement (which would have increased revenue across the state) to stopping case managers from restarting clients' interlock time requirement without the benefit of a court case to defend themselves against a violation accusation.

The VASAP Commissioners and the Attorney General's office both blessed this abomination of due process.  It's equivalent to letting a probation officer extend the time of their probationer's sentence or send them to jail for a probation violation without the ruling of a judge. 

No court case, no violation.  It's that simple. 

ASAP case managers don't have the authority to unilaterally extend a client's interlock time requirement, but VASAP simply doesn't care and lets them do it anyway because it would be too costly and too time consuming to send ALL "violations" to court.  VASAP's lack of oversight of their 24 ASAP "franchises" has enabled statewide corruption.

In once instance, in 2019 before COVID, an ASAP client had a violation with two months to go before her scheduled interlock removal.  She requested to go to court because she wasn't drinking.  The ASAP, by law, has five (5) days to notify the client and the court of a violation.  The ASAP forced her to wait four months (two months after her scheduled removal date) for a non-compliance hearing.  Her case was dismissed but the ASAP had already extended her interlock time requirement by the time she got to court.  The really shameful part is that she should have had her interlock immediately removed when the case was dismissed, but instead she got another three months on the box.  I guess the ASAPs really need that money.  When she called VASAP to complain, VASAP sided with the ASAP, of course.

At VASAP's most recent meeting, the Performance Management Group, hired by VASAP to study the agency's fiscal solvency, determined that unless major changes are made to the infrastructure of the program, a third of the ASAPs will not have enough operating funds to survive through 2025.

My wife and I have been warning VASAP for three years that they're utilizing a failing business model.  If the program actually works and people stop drinking and driving, the program will lose revenue.  The ASAPs may now be forced to share revenue, but that's only a short term fix.  The only long term solution is to consolidate the ASAP sites or abolish the Commission and turn the program over to the DMV.  The program should be administered through the DMV who can utilize existing infrastructure and staff to run the program.  

Attorney General representative Baugh falsely told Commissioners at a public meeting that if a vehicle's ignition interlock registers a failing blow, the vehicle will not start again until the interlock has "cleared" which she clarified meant zero alcohol.  Not true.  The vehicle will start at any alcohol level below .02% breath alcohol content.

The people who are overseeing this program are being told falsehoods about how the technology works.  It's no wonder this Commission can't get its act together.  I have no faith in this agency or it's ability to sustain itself.  The corruption will continue until someone in power is brave enough to stop it, but I'm not holding my breath.

 

 

CommentID: 97507
 

3/31/21  8:23 pm
Commenter: Cynthia Hites, Virginia Ignition Interlock Forum

VASAP unethically condones non-alcohol specific ignition interlock devices
 

The VASAP IID program was implemented under the misapprehension that fuel cell interlock devices solely detect alcohol. 


The IID companies interchange two different definitions of alcohol to make the claim of alcohol specificity, because the fuel cell detects many compounds, not just ethanol, as the law required.
 
VASAP now understands this, because their clarification for proposal to amend 24VAC35-60-70, F, 3 clearly explains “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 Code of Virginia define “alcohol” as ethanol. This has caused confusion to the public”. 
 
The confusion is caused by VASAP continuing to mislead the public by insinuating the interlock devices *only* detect alcohol. It’s deceit, plain and simple, and it’s not just misleading the public - it’s misleading Judges, legislators and the court system.
 
It’s gaslighting people into thinking there is drinking alcohol present, when there’s not. It’s gaslighting judges into believing the devices measure a person’s alcohol level, and they do not.
 
The NHTSA and the interlock companies lied and mislead legislators into believing a simple alcohol specific sensor exists, but the only way that claim holds true is if “alcohol” is defined as “hydroxyl group compounds”, not ethanol.
 
Interlock devices do not measure alcohol. They detect hydroxyl group compounds and measure the electrons generated. They do not measure any substance, and they’re merely a preliminary indicator of the presence of hydroxyls, one of which is ethanol (C2H6O).
 
Police use the exact same technology in their handheld breathalyzers, but it’s recognized the results of PBTs are just preliminary, thus inadmissible in court.
 
Interlock is using this preliminary technology as definitive. It’s a PBT that’s inappropriately been elevated to a much higher status, and electrochemical fuel cells have not been certified as evidentiary.
 
The readings are just indicative of potential ethanol, and since IID devices are not held to the same standards as the EBT, the readings are inadmissible in court.
 
VASAP now acknowledges the devices are not alcohol specific, but they really, really wanna keep implying they only detect liquor. So instead of changing the definition of alcohol, which would be the ethically correct move, they double down on the deception.
 
VASAP *knows* IIDs don’t just detect ethanol, but here’s what the proposed regulations say: 
 
“The ignition interlock device shall use an electrochemical fuel cell that reacts to and measures ethanol”. 
 
Yes, it reacts to ethanol, but it also reacts to lots of other things. The proposed regs are even more deceptive!
 
The only way to make it right is to include the word solely ...  reacts solely to ethanol. 
 
Not to mention I filed a previous petition urging VASAP to change each reference to “alcohol” to “ethanol”. 
The denial of that petition advised the language of all other documents and agencies was not to refer to C2H6O, but rather use the word “alcohol”, so it would be consistent.
 
All other references to ethanol are uniformly referred to as “alcohol” now, except this one, single reference where it’s used, strictly to deceive. 
 
The interlock device casts a wide net because it’s not alcohol specific. The vast majority of people caught in the net are sober. 
 
The devices detect hydroxyls in sober breath that are indicators of all sorts of disease states and malady. 
 
Sober people breathe alcohol and using a non-alcohol specific device is UNETHICAL.  
 
VASAP’s continued allowed usage of the electrochemical fuel cell is perpetuating a lie, engaging in deception, and renders the IID program devoid of all integrity. 
CommentID: 97667