12/17/2018 1:37 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 St., Ste. 1110 Richmond, VA 23219 |
Chapter Affected: | |
24 vac 35 - 30: | VASAP Case Management Policy and Procedure Manual |
Statutory Authority: |
State: Federal: |
Date Petition Received | 07/12/2018 |
Petitioner | Cynthia Ellen Hites |
Petition to amend Virginia Administrative Code 24VAC35-30, pursuant to § 2.2-4007.
I, Cynthia Ellen Hites, as a citizen of the Commonwealth of Virginia, pursuant to
Virginia Code § 2.2-4007, do humbly submit this petition for the following amendment
to Virginia Administrative Code 24VAC35-30 (VASAP Policy and Procedures Manual).
Part VII Ignition Interlock Violations:
"Under no circumstances shall the ASAP accept any other means of clearing a failing
BAC registered on an interlock device other than the interlock device itself. This
includes, but is not limited to, preliminary breath machines, urine screens, etc."
This clause leaves absolutely no failsafe for the citizens who have not been drinking,
yet are violated by the ASAP for readings of alcohols aside from ethanol. The BAIIDs
measure all alcohols, therefore a scientific failsafe must be put in place to protect
innocent citizens from the devices registering a compound aside from ethanol as drinking
liquor, thus creating "false violations."
I propose the following language be adopted, in lieu of the current:
"Upon client request, the ASAP shall accept proof of a urine screen, or blood test
from an accredited lab that results in a negative reading for EtOH for the time frame
in question. Also to be considered in conjunction with BAIID data logs are officially
filed reports or eyewitness testimony from city police and/or state police that contradict
the ignition interlock device."
This unethical guessing game of "pin the tail on the alcohol" must cease, because
it is making what is inherently objective, subjective to case workers' knowledge,
or opinion, of ethanol metabolization.
Electrochemical fuel cells are not ethanol specific. The law (Virginia Administrative
Code 24VAC35-60-70) is written as such that it fundamentally contradicts itself, rendering
it scientifically impossible. One can either have an electrochemical fuel cell, or
ethanol specificity, but not both. Only a gas chromatograph - mass spectrometer can
distinguish EtOH from its dozens of cousins; and the law, courts, VASAP and ASAPs must take
that into account.
While completely sober for months, I was held hostage on nine different days, for
the duration of twenty three high BrAC readings, as police administered their PBTs
which read ZERO, sometimes simultaneously to the BAIID lockouts, and sometimes only
mere minutes after the BAIID gave readings as high as 0.07 BrAC.
No ethanol was present during any high BrAC events, and that fact is borne out in
the extreme elimination (and impossible absorption) rates. One of the nine events
included an initial startup at 0.000 BrAC, then rose within three minutes to 0.07
upon rolling retest, then back to zero, all within a span of 24 minutes. A BrAC for
ethanol of 0.07 will take over four hours to achieve total elimination.
Also, directly refuting the ignition interlock readings are the contradicting PBTs,
the police eyewitness reports, and negative urine screen.
If scientific failsafes had been in place, perhaps such an egregious miscarriage of
justice would not have occurred in my case, at least not to such an outrageous degree.
I beg of the Commission members to take this petition under advisement. Virginians'
liberties are being traipsed upon by the ignition interlock companies and by the ASAP's
inability to ferret out "real" ethanol violations.
Please begin to utilize science, for the sake of what's right, to help prevent any
more collateral damage at the hands of such an unsophisticated and antiquated technology.
Humbly and most sincerely,
Cynthia Ellen Hites
Agency Plan
This petition will be considered by the Commission on VASAP at its meeting on December
7, 2018.
Publication Date | 08/06/2018 (comment period will also begin on this date) |
Comment End Date | 09/28/2018 |
Take no action
Agency Response Date | 12/17/2018 |
The Commission on VASAP is authorized by the Code of Virginia to develop regulations
pertaining to the ignition interlock program. A process is in place to ensure that
all positive alcohol readings registered on an ignition interlock device are carefully
reviewed by local and state VASAP staff to verify that a violation has occurred.
Clients are not sent back to court for noncompliance unless a violation is apparent.
Clients who choose to challenge the results of positive ignition interlock tests are
welcome to collect (at their own expense) any information to support their contentions.
This may include BAC testing (urine, blood, breath) from an independent laboratory,
eye witness testimony, and other evidence. This additional evidence will not be considered
by VASAP. Such client-provided evidence is best reviewed by the court during the
noncompliance hearing for determination of its admissibility and probative value.
Accordingly, the petition is denied.