10/3/2019 11:18 am 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 Commission on Virginia Alcohol Safety Action Progr (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 - 60: | Ignition Interlock Regulations |
Statutory Authority: |
State: 18.2 -270.2 Federal: |
Date Petition Received | 02/15/2019 |
Petitioner | Cynthia Ellen Hites |
I, Cynthia Ellen Hites, as a citizen of the Commonwealth of Virginia, pursuant to
Virginia Code ยง2.2-4007, do humbly submit this petition for the following amendment
of Virginia Administrative Code 24VAC-35-60-50.
Currently, VA statute 24VAC-35-60-50, D, 9 reads:
"D. Service providers may charge offenders for ignition interlock services at rates
up to, but not to exceed, the following:... 9. $50 for violation resets, when the
violation is determined to be the fault of the offender."
As the law exists, in the event of "mouth alcohol," machine malfunction, or one of
the host of non-ethanol readings expected by interlock companies for compounds in
personal hygiene products, ignition interlock providers can withhold citizens' ability
to utilize their personal vehicle until they provide the interlock company $50. This
is tantamount to extortion.
Until all evidence can be considered in a court of law, a violation cannot be determined.
Due to this fact, a violation reset fee cannot be collected until a "violation" can
be determined by a judge.
I propose that 24VAC-35-60-50, within section D, #9, which allows a $50 reset fee
to be collected by ignition interlock providers, be removed in its entirety.
Currently, ASAP case managers are precluded from considering or accepting any evidence
aside from the devices' failed readings. Employing circular logic, Section IV of
the VASAP Process and Procedures Manual states: "Under no circumstances shall the
ASAP accept any other means of clearing a failing BAC registered on an interlock device
other than the device itself. This includes, but is not limited to preliminary breath
test machines, urine screens, etc..."
When a petition was filed in 2018 to allow case managers to consider additional evidence
when citing a violation, VASAP's Richard Foy responded with the following statements:
"The petitioner is suggesting that ASAP case managers...accept and consider additional
evidence submitted by the client to include such things as urine screens, blood tests,
preliminary breath tests, and police or other eyewitness testimony. All of that is
to be considered prior to determining whether an ignition interlock violation occurred.
Doing this would raise some questions and concerns. That's something the court would
consider, and VASAP is not going to be comfortable in considering those results because
it tends to put us in a judicial role. We believe any additional information...would
be best presented to the court in a non-compliance hearing...".
Ignition interlock machines use inherently non-ethanol specific electrochemical fuel
cell technology. This means an ethanol violation may be suspected by a case manager,
but all evidence must be considered to determine an ethanol violation, and only a
judge can make that determination upon preponderance of the evidence.
Commissioners, please amend this statute and remove #9 from 24VAC-35-60-50, section
D. It's wholly unfair to charge Virginians a "violation" reset fee prior to conviction.
Very Sincerely,
Cynthia Hites
Agency Plan
The Commission on VASAP will consider this petition at its quarterly meeting on September
13, 2019.
Publication Date | 03/18/2019 (comment period will also begin on this date) |
Comment End Date | 06/28/2019 |
Take no action
Agency Response Date | 10/03/2019 |
The Commission on VASAP denied the petitioner's request. The current procedures followed
by ASAPs and ignition interlock vendors are in compliance with state regulations and
do not require modification.