TITLE 24. TRANSPORTATION AND MOTOR VEHICLES

COMMISSION ON THE VIRGINIA ALCOHOL SAFETY ACTION PROGRAM

Initial Agency Notice

Title of Regulation: 24VAC35-30. VASAP Case Management Policy and Procedure Manual.

Statutory Authority: §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia.

Name of Petitioner: Cynthia Hites.

Nature of Petitioner's Request: "I, Cynthia Hites, as a citizen of the Commonwealth of Virginia, pursuant to § 2.2-4007 of the Code of Virginia, do humbly submit this petition for the following amendment, in the form of addition, to Virginia Administrative Code 24VAC35-30-150 (VASAP Policy and Procedures Manual). The Virginia regulations state the following: Section 150, Paragraph A: 'Noncompliance reporting. When the offender has been deemed noncompliant by the case manager, that case manager, within five working days, shall notify in writing the referring court or agency and the offender.' A major problem facing innocent citizens accused of interlock violations is simply the lack of information presented to them by ASAP. Currently, the offender is given an accusation sheet from an ASAP that generally includes the time of the high reading, along with an accusation of not reaching zero, or "clearing out" within an allotted time. But the only way clients can obtain data-log readings from the machine is to proactively request them, or have an attorney obtain them, and most people don't know enough to do this. VASAP consistently fails to understand that the vast majority of high IID readings are not due to consumed ethanol. You're just measuring biomarkers for disease and routine metabolic byproducts. This is also a HIPAA violation, as the only, the ONLY substance the government should be analyzing someone's waste for is C₂H₆O. To invasively examine personal medical waste, and misconstrue ALL hydroxyl compounds as 'ethanol' is criminal. This is why the offender must be presented with the facts of the accusation and the opportunity to review the entire data-log from each alleged violation event is necessary. If a non-ethanol specific device is now an acceptable standard in VA, and a warning indicator is not mandated between the .000 and .02 window, the potential for fraud is omnipresent. Only when one is armed with their complete interlock data-logs can a person begin to understand what occurred. In many cases, ketogenesis, and other metabolic processes create internal hydroxyl compounds detectable on sober breath. The 'fail' point then becomes a 'pass' point, as people must wait for their bodies to cease alcohol production. Several of my events took over 45 minutes to 'clear out,' but when presented with the full data logs, it's clear to see that if you start a car at zero, rise to .07 BrAC, then are back to zero in 24 minutes, the machine is not measuring ethanol. 7 of the 9 times I was accused, I actually started the car at .000 BAC, had high readings, then was back to .000 BAC in scientifically impossible spans of time. Each of these 9 days' worth of readings are published on the FaceBook page entitled Virginia Ignition Interlock Forum. Since a warning indicator is now not required between .000 and .02, the client will get a green light and assume they're at zero. In this case only the data logs, and nothing else, can prove innocence by showing the readings were passing below .02. This is fraud and since the breath tests are unsupervised, the only evidence that can exonerate the client is the data shown in the full IID logs. I propose the following language be added to amend this statute: 'All clients shall be presented with full interlock log information, to include all data within 24 hours prior to and after the alleged violation.' Section 150, Paragraph A: 'Noncompliance reporting. When the offender has been deemed noncompliant by the case manager, that case manager, within five working days, shall notify in writing the referring court or agency and the offender. All clients shall be presented with full interlock log information, to include all data within 24 hours prior to and after the alleged violation.' Every reading during the 24 hour period must be included because many times data recorded hours prior to and subsequent can disprove ethanol use, as opposed to only showing readings immediately around the high BrAC. This system should never have been adopted for use on sober individuals. The fuel cell does not solely measure ethanol, and most high readings are not liquor. Due process is denied every single time someone is 'restarted' without going to court. False confession is ignored, and the entire IID system is, for lack of a better term, absolutely 'rigged' against the offender. If you're going to totally abuse and misconstrue science, you must provide clients the exculpatory evidence to protect themselves. Please amend the law to begin to protect Virginians from the unethical use of non-alcohol specific electrochemical fuel cell technology."

Agency Plan for Disposition of Request: The Commission on the Virginia Alcohol Safety Action Program will consider this petition at its December 11, 2020, meeting.

Public Comment Deadline: December 4, 2020.

Agency Contact: Richard L. Foy, Field Services Specialist, Commission on the Virginia Alcohol Safety Action Program, 1111 East Main Street, Suite 801, Richmond, VA 23219, telephone (804) 786-5895, or email rfoy@vasap.virginia.gov.

VA.R. Doc. No. R21-05; Filed October 1, 2020, 1:16 p.m.