Title of Regulation: 24VAC35-60. Ignition Interlock Program Regulations (amending 24VAC35-60-40 through 24VAC35-60-90, 24VAC35-60-110, 24VAC35-60-130; adding 24VAC35-60-140).

Statutory Authority: §§ 18.2-270.1 and 18.2-270.2 of the Code of Virginia.

Effective Date: July 1, 2021.

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

Summary:

The amendments include: (i) adjusting the timing of initial ignition interlock rolling retests and subsequent random tests; (ii) requiring additional photographs of the vehicle's driver seat area; (iii) adding additional grounds for which ignition interlock service providers and technicians may be disciplined; (iv) requiring ignition interlock service providers to notify the Virginia Alcohol Safety Action Program (VASAP) only when they receive a negative adjudication instead of notifying VASAP of any and all pending lawsuits; (v) preventing offenders from transferring from one interlock vendor to another; (vi) prohibiting device installation by a new vendor if the offender owes another vendor any amount of money; (vii) introducing a $2,500 fee to the vendors for application for a new device certification; (viii) allowing the Commission on VASAP to receive the monthly administrative fee for local offices and then distribute it to the local ASAP offices; (ix) granting the Commission on VASAP the authority to suspend service-related requirements of this regulation in applicable geographical areas when there exists a federal or state disaster or declaration of emergency; (x) allowing temporary codes to be provided to persons that would allow them to unlock their locked ignition interlock devices for a longer period than currently permitted; (xi) prohibiting use of a single vehicle that is equipped with an ignition interlock in order to meet the probationary requirements of multiple offenders; and (xii) permitting VASAP to approve light sources other than the vehicle headlights for the required flashing lights when a rolling retest is failed or skipped.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

24VAC35-60-40. Approval of manufacturers and service providers.

A. The commission shall issue a request in compliance with the Commonwealth of Virginia procurement procedures to contract with ignition interlock service providers for the services and commodities required for the implementation and maintenance of the Commonwealth's ignition interlock program. Contracts will be for a length of time established by the commission.

B. Integrity of the ignition interlock program shall be upheld by restricting the delivery of interlock service to the actual provider of the product (authorized service provider), thereby effectively preventing the extension of subcontracts to other persons or businesses that lack long-term investment, long-term experience, or in-depth knowledge of product and service, potentially resulting in a higher likelihood of neglect of duty or illegal exchange of funds. Denial of subcontracting of the interlock service to the consumer is an integral part of protecting offender confidentiality and the chain of evidence for court testimony and evidentiary procedures.

C. A service provider seeking to contract with the commission shall:

1. Submit evidence demonstrating successful experience in the development and maintenance of an ignition interlock service program in Virginia, other states, or other countries. The service provider shall be dedicated to the installation and maintenance of ignition interlock devices;

2. Supply and train staff and service center supervisors to ensure good customer service and compliance with all contract requirements.

a. Personnel seeking to perform ignition interlock services or administrative duties in the Commonwealth of Virginia shall not necessarily be barred from employment due to a criminal record; however, a criminal record may be considered in conjunction with other information to determine the overall suitability of applicants for employment.

b. The authorized service provider shall provide, upon request of the commission or the court via a properly served subpoena, expert or other required testimony in any civil, criminal, or administrative proceedings as to the method of manufacturing the device, ignition interlock functionality, and the testing protocol by which the device is calibrated and serviced.

c. The service provider shall provide a completed application for state certification to the commission to perform ignition interlock services for all technicians and state directors seeking to work in the Commonwealth of Virginia. The application shall be submitted at least 10 days prior to the employee performing any ignition interlock services in the Commonwealth of Virginia with the exception of newly hired employees in training who shall be permitted to perform services while under the direct supervision of a certified technician for a period of 90 days prior to applying for state certification.

d. The service provider shall identify all key personnel who will be providing ignition interlock services for the Commonwealth of Virginia and furnish the commission with credentials on these personnel.

e. The service provider shall notify the commission at least five business days in advance of a reduction in staffing levels of key personnel at the local or district offices in the Commonwealth of Virginia.

f. The service provider shall ensure that technicians and the state director are trained and available to testify in court if required by a court or Commonwealth's Attorney or upon a 10-business-day notice by the ASAP in that court's jurisdiction, regardless of whether a subpoena is issued;

3. Submit a description of the service provider's plan to be approved by the commission, for distribution of the device in all locations of the Commonwealth of Virginia where ignition interlock services will be performed. At least one physical ignition interlock service facility shall be located within a 50-mile radius of every residence in the Commonwealth of Virginia unless otherwise authorized by the commission. Ignition interlock service providers shall provide the commission with a list of all service center days and hours of operation and provide an updated list within 24 hours of any changes. Interlock service facilities shall be inspected and certified by the commission prior to the initial provision of services to offenders. Each interlock service facility shall be inspected and certified at least annually thereafter. Interlock service providers shall:

a. Comply with all local business license and zoning regulations, and with all federal, state, and local health, fire, and building code requirements. Prior to the jurisdictional compliance deadline, a copy of a valid business license or business license payment receipt shall be forwarded to the commission. The official valid business license and tax document are required to be posted in a conspicuous place at the service facility immediately upon receipt when applicable;

b. Comply with all local, state, and federal laws pertaining to the provision of physical access to persons with disabilities;

c. Maintain offender records in a manner that complies with federal confidentiality guidelines. All offender files, payment receipts, and other identifying information shall be located in locked filing cabinets in one centralized location in the Richmond, Virginia area. Electronic storage of client files shall be encrypted and secured to prevent third party access;

d. Require and enforce maintenance of a drug-free workplace and have posted in a conspicuous place, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the service provider's workplace. The notice shall specify the actions that will be taken against employees for violations of the policy;

e. Replace an ignition interlock service facility within 90 days whenever the closing of an interlock service facility results in noncompliance with the requirement to possess a facility within a 50-mile radius of every residence in the Commonwealth of Virginia. The service provider is also required to notify offenders of the closure date and the address of an alternate interlock service facility within 15 days of the closure date;

f. Ensure that technicians maintain a professional appearance and are attired in such a manner as to be readily identifiable as service provider employees;

g. Ensure that interlock service facilities are tidy and pose no hazards to public safety; and

h. Provide the commission a minimum of 20 days notice prior to the scheduled opening date of a new location. This requirement allows the commission reasonable time to schedule an inspection of the new facility prior to opening services to ASAP offenders;

4. Submit sufficient documentation to enable the verification of adequate insurance covering liability related to ignition interlock operations, services, and equipment, including coverage in Virginia, with a minimum policy limit of $1 million per occurrence and $3 million general aggregate total. The service provider's liability insurance shall be considered primary above all other available insurance and shall so stipulate in the "other insurance" or other applicable section of the service provider's insurance contract. The service provider shall provide a signed statement from the manufacturer holding harmless the Commonwealth of Virginia and the commission and its members, employees, and agents from all claims, demands, and actions as a result of damage or injury to persons or property that may arise directly or indirectly out of an act or omission by the manufacturer or its service provider relating to the installation, service, repair, use, or removal of an ignition interlock device. Coverage shall extend to any action taken or not taken by ASAPs or the commission due to verified errors in reporting of interlock activity by the service provider;

5. Submit documentation that the service provider will provide a full-time state ignition interlock director who will work exclusively with the Virginia interlock program. Among other duties, the state ignition interlock director will be expected to (i) respond promptly to problems in the field; (ii) upon request of the commission, testify before applicable courts, the General Assembly of Virginia, or the commission; (iii) assist and provide training to the commission, ASAP staffs, local and statewide, and other stakeholders as requested by the commission; and (iv) be responsible for quality control reports and statistics, updates to all required documentation, and field services reporting and repairs. Ignition interlock state directors are also permitted to oversee remote alcohol monitoring programs for a Virginia-approved remote alcohol monitoring device manufacturer. In the event of a state director vacancy, service providers shall submit to the commission the name of an interim state director within 10 days of the vacancy and the name of a permanent state director within 90 days of the vacancy;

6. Not discriminate against an employee or applicant for employment due to race, religion, color, sex, national origin, age, disability, or other basis prohibited by state or federal law relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of the service provider. The service provider agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. Furthermore, the service provider in all solicitations or advertisements for employees placed by or on behalf of the service provider shall state that the contractor is an equal opportunity employer. Notices, advertisements, and solicitations placed in accordance with federal law, rule, or regulation shall be deemed sufficient for the purpose of meeting the requirements of this subdivision;

7. Not knowingly employ an unauthorized alien as defined in the Federal Immigration Reform and Control Act of 1986 (P.L. 99-603; 100 Stat. 3359) during the performance of the contract for goods and services; and

8. Notify the commission in writing within 15 days of a disciplinary action taken by a state or other political entity in which the service provider conducts or has conducted ignition interlock business. This notification shall include the reason for the disciplinary action and other information as the commission may reasonably request. This requirement applies regardless of the existence of an appeal; and

9. Notify the commission in writing of all final adjudications unfavorable to the service provider related to the ignition interlock device or delivery of ignition interlock services.

D. Provided that all vendor and device certification requirements are met, the commission may contract with those manufacturers or service providers and may approve multiple makes and models of ignition interlock devices for use in the Commonwealth of Virginia.

24VAC35-60-50. Fees.

A. All potential service providers desiring to conduct business in the Commonwealth of Virginia's ignition interlock program shall submit a $250 nonrefundable application fee to the commission.

B. The following additional fees shall be paid by the service provider to the commission:

1. A $250 annual contract review fee;

2. A $75 annual review fee for each ignition interlock service center;

3. A $250 retest fee each and every time a service provider employee is required to take a second or subsequent Virginia Ignition Interlock Certification Exam due to an unsuccessful attempt on the first exam; and

4. A $10 $20 monthly ignition interlock administrative fee for each offender. The fee shall be accompanied by an associated offender list, categorized by ASAP, supporting the payment amounts. The ASAP offender list and payment shall be submitted no later than the 10th day of the month following the month when the ignition interlock services were provided; and

5. A $2,500 fee per each new ignition interlock device certification application submitted to the commission that was not previously certified in the Commonwealth.

C. A $10 monthly ignition interlock administrative fee shall be paid by the service provider directly to the servicing ASAP for each offender. The fee shall be accompanied by an associated offender list, categorized by ASAP, supporting the payment amounts. The ASAP offender list and payment shall be submitted no later than the 10th day of the month following the month when the applicable ignition interlock services were provided.

D. C. Service providers may charge offenders for ignition interlock services at rates up to, but not to exceed, the following:

1. $65 for a standard ignition interlock installation;

2. $130 for the installation of an ignition interlock on a hybrid motor vehicle, motor vehicle with a push button starter, or other vehicle requiring more than four hours of installation labor time when approved by the commission;

3. $75 for a change of vehicle ignition interlock installation;

4. $0 for an ignition interlock removal;

5. $95 plus applicable taxes for monthly ignition interlock calibrations or monitoring, inclusive of the monthly administrative fees to be paid to the commission and servicing ASAP;

6. $8.00 per month for optional insurance to cover theft or accidental damage to the ignition interlock and its components;

7. An amount of 10% over the actual replacement cost of the ignition interlock and its components when theft or accidental damage occurs and the offender has not purchased the optional insurance;

8. $50 plus mileage calculated at the Commonwealth of Virginia mileage rate in effect at the time, not to exceed 100 miles, for service calls;

9. $50 for violation resets, when the violation is determined to be due to the fault of the offender;

10. $35 for missed appointments;

11. An amount permitted by the Code of Virginia at the time for returned checks;

12. $50 for provision of a permanent lockout code, when the lockout is determined to be due to the fault of the offender; and

13. $50 per hour, not to exceed four total hours, for repairs and reinstallation of the ignition interlock when the commission determines that the offender illegally tampered with the device.

E. D. In the event of changes to the Code of Virginia or the Ignition Interlock Program Regulations (24VAC35-60) mandating enhanced technological capabilities of ignition interlock devices used in the Commonwealth, the commission may increase offender installation and calibration fees up to a maximum of 25%.

F. E. All service providers shall create and maintain an indigency fund for offenders who are eligible for a reduction in fees based upon a declaration of indigency by the court and approval by the commission. Service providers shall not deny service to any offender for whom there has been a declaration of indigency and approval by the commission.

24VAC35-60-60. Suspension or revocation of ignition interlock device or service facility certification.

A. The commission may indefinitely suspend or revoke certification of an ignition interlock device or ignition interlock service facility, and the Executive Finance Committee, for a period not to exceed 30 days, may suspend or revoke certification of an ignition interlock device or ignition interlock service facility for the following reasons:

1. When there is a voluntary request by a manufacturer to cancel certification of a device;

2. When a device is discontinued by the manufacturer;

3. When the manufacturer's liability insurance is terminated or canceled;

4. When the manufacturer or service provider attempts to conceal its true ownership;

5. When materially false or inaccurate information is provided relating to a device's performance standards;

6. When there are defects in design, materials, or workmanship causing repeated failures of a device;

7. When the manufacturer or service provider knowingly permits nonqualified service technicians to perform work;

8. When a manufacturer or service provider assists users with circumventing or tampering with a device;

9. When a service provider fails to fully correct an identified ignition interlock facility noncompliance issue within the timeframe required by the Code of Virginia, the provisions of this chapter, or a service provider contract;

10. When there is a pattern of identified interlock service facility noncompliance issues;

11. When a service provider impedes, interrupts, disrupts, or negatively impacts an investigation conducted by the commission involving customer service issues, vehicle damage, or other complaint brought forward by a third party; or

12. When there is an identified public safety or client confidentiality issue at an ignition interlock service facility.

B. If a suspension or revocation of an ignition interlock device or service facility certification occurs, the manufacturer or service provider may request, within 15 days of notification, a hearing with the commission to contest the decision judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). Should a revocation of certification be upheld, the manufacturer or service provider whose device has been revoked (i) shall be responsible for removal of all devices installed and serviced by the service provider that are subject to the revocation, and (ii) will bear the costs associated with the required removal and installation of new approved devices. In addition, the manufacturer or service provider whose device or facility is subject to the revocation shall continue to provide services for these ASAP offenders for a time to be determined by the commission, but no longer than 90 days.

C. When the certification of an ignition interlock device or ignition interlock service facility is suspended or revoked, service providers or manufacturers shall continue to provide services for ASAP offenders; however, no new ignition interlock installations shall be permitted during the period of suspension.

D. If a service provider terminates the contract or goes out of business, the manufacturer or service provider shall be responsible for removal of all devices installed and serviced by the service provider that terminates the contract or goes out of business and shall bear the costs associated with the required removal and installation of new approved devices. In addition, the manufacturer or service provider that terminates the contract or goes out of business shall continue to provide services for these ASAP offenders for 90 days from the date of the service provider's notification to the commission that they will be terminating ignition interlock services in Virginia.

24VAC35-60-70. Ignition interlock device specifications.

A. All ignition interlock devices used pursuant to §§ 18.2-270.1 and 46.2-391.01 of the Code of Virginia shall be approved by the commission. The commission shall maintain a list of approved ignition interlock devices.

B. A service provider seeking to contract with the commission shall submit:

1. The name and address of the ignition interlock device manufacturer;

2. The name and model number of the ignition interlock device; and

3. A detailed description of the device including drawings, schematics, wiring protocols, and instructions for its installation and operation.

C. The manufacturer or service provider shall provide literature promoting its device to the commission and for distribution to the ASAPs.

D. The manufacturer or service provider shall provide certification from an independent laboratory that its ignition interlock device has been tested in accordance with the most current model specifications published in the Federal Register by the National Highway Traffic Safety Administration. The manufacturer or service provider is required to provide a certified affidavit that the ignition interlock device model complies with all applicable state standards, including written documentation, current within five years, from either a certified testing laboratory or a National Highway Traffic Safety Administration testing lab that the ignition interlock model for which certification is being sought meets or exceeds the current National Highway Traffic Safety Administration's model specifications. Included with the certification report should be the name and location of the testing laboratory, the address and phone number of the testing laboratory, a description of the tests performed, copies of the data and results of the testing procedures, and the names and qualifications of the individuals performing the tests.

E. If a device is submitted for approval by a service provider other than the manufacturer, the submitting party shall submit a notarized affidavit from the manufacturer of the device certifying that the submitting party is an authorized manufacturer's representative.

F. Except where otherwise required in this chapter, all ignition interlock devices shall meet the model specifications for Breath Alcohol Ignition Interlock Devices as set forth in the most current model specifications published in the Federal Register by the National Highway Traffic Safety Administration and operate reliably over the range of motor vehicle environments or motor vehicle manufacturing standards. At a minimum, the following specifications shall be met:

1. The ignition interlock device shall work accurately and reliably in an unsupervised environment, at minimal inconvenience to others, and without impeding the safe operation of the motor vehicle.

2. The ignition interlock device shall be able to analyze a specimen of alveolar breath for alcohol concentration, correlate accurately with established measures of blood alcohol concentration, and be calibrated according to the manufacturer's specifications.

3. The ignition interlock device shall be alcohol specific, using use an electrochemical fuel cell that reacts to and measures ethanol, minimizing positive results from other substances.

4. The ignition interlock device shall indicate when a 1.5 L breath sample has been collected and shall indicate this by audible or visual means. The commission may authorize service providers to adjust the breath volume requirement to as low as 1.0 L upon receipt of documentation from a licensed physician verifying the existence of an applicable medical condition. The physician's documentation shall be submitted in a format approved by the commission.

5. The ignition interlock device shall detect and record a BAC that reaches the fail point for all completed breath samples.

6. The results of the test shall be noted through the use of green, yellow, and red signals or similar pass/fail indicators. No digital blood alcohol concentration shall be indicated to the offender.

7. The ignition interlock device shall lock out an offender when a BAC reaches the fail point.

8. The ignition interlock device shall have the ability to activate continuously flash the vehicle's lights and, or other light source approved by the commission, while simultaneously activating the vehicle's horn when whenever a required rolling retest is missed or failed.

9. The ignition interlock device shall have the ability to perform a permanent lockout if the offender fails to appear for a scheduled monitoring appointment within 30 days of the later of the installation date or most recent calibration date. The service provider shall provide a code, smart key, or other similar unlock feature that has been approved by the commission to offenders whose interlock is in a permanent lockout status. The duration of the time period that the interlock is unlocked shall not be more than or less than three hours unless otherwise approved by the commission. The code shall only unlock the interlock device and shall not disable other interlock features. Interlock service providers shall not provide an ignition interlock code that disables the ignition interlock features to persons without first obtaining authorization from the commission.

10. The ignition interlock device shall automatically purge alcohol before allowing subsequent analyses.

11. The ignition interlock device shall issue a warning of an impending permanent lockout.

12. The ignition interlock device shall be capable of random retesting and timed retesting.

13. The ignition interlock device shall warn the offender of upcoming service appointments for at least five days prior to the appointment. Should the offender fail to appear, the device shall lock out on the 31st day after the later of the installation date or previous calibration date, and the motor vehicle shall not be operable until the service provider has reset the device.

14. The internal memory of the ignition interlock device shall be capable of recording and storing a minimum of 15,000 interlock events and shall enter a service reminder if the memory reaches 90% of capacity.

15. The ignition interlock device shall be designed and installed in a manner as to minimize opportunities for tampering, alteration, bypass, or circumvention. The ignition interlock device shall not spontaneously bypass the ignition system or starter relay, nor shall it be able to be made operational by a mechanical means of providing air to simulate alveolar breath. Bogus breath anti-circumvention features used to pass laboratory testing of the ignition interlock device shall be turned on. In addition, service providers shall connect the ignition interlock device to a constant and uninterrupted power source to further prevent an opportunity to circumvent the system.

16. The ignition interlock device shall be capable of recording and providing evidence of actual or attempted tampering, alteration, bypass, or circumvention.

17. The ignition interlock device shall operate accurately and reliably at temperatures between -40°C and 85°C.

18. The ignition interlock device shall operate up to altitudes of 2.5 km above sea level.

19. The readings of the ignition interlock device shall not be affected by humidity, dust, electromagnetic interference, smoke, exhaust fumes, food substance, or normal automobile vibration when used in accordance with the manufacturer's instructions.

20. The operation of the ignition interlock device shall not be affected by normal fluctuations of power source voltage.

21. The ignition interlock shall be installed with a fully functional camera that is equipped to record the date, time, and photo of [ all persons providing accepted breath samples to the ignition interlock device; however, this requirement shall not pertain to motorcycles and mopeds. In addition, service providers are required to present a reference photo of the offender to confirm the offender's identity. the vehicle's driver seat upon:

a. The delivery of an accepted breath sample to the ignition interlock device;

b. A missed retest on the ignition interlock device; and

c. An initial engine start of the motor vehicle, within a timeframe established by the commission.

This requirement shall not pertain to motorcycles and mopeds. In addition, service providers are required to present a reference photo of the offender to confirm the offender's identity. ]

G. All ignition interlock devices that have been approved by the commission shall have affixed to the ignition interlock handset a warning label with the following language: "Any person tampering with or attempting to circumvent this ignition interlock system shall be guilty of a Class 1 misdemeanor and, upon conviction, be subject to a fine or incarceration or both." The cost and supply of the warning labels to be affixed to the ignition interlock devices shall be borne by the manufacturer or service provider. The manufacturer or service provider shall submit to the commission a prototype of the warning label for approval.

H. For initial startup of the motor vehicle:

1. The ignition interlock device shall enable the starter relay after the successful completion of a breath alcohol test.

2. The device shall allow an operator to take up to two minutes after the starter relay is enabled to start the engine.

3. The ignition interlock device shall permit a free restart.

4. If the initial test results in a lockout due to the offender's BAC level, the ignition interlock device shall not allow an additional attempt for five minutes.

5. If the offender's BAC still reaches the fail point on the first retest, the machine shall lock out for an additional 10 minutes and shall do so thereafter for subsequent failed retests. A violation reset message shall instruct the offender to return the ignition interlock device to the service provider for servicing within five days.

6. If the ignition interlock device is not reset within five days, a permanent lockout shall occur.

I. A rolling retest feature is required for all ignition interlock devices. For rolling retests:

1. An ignition interlock device shall require a rolling retest within the first five [ not less than 10 randomly within 10 to 15 ] minutes after the start of the motor vehicle and randomly thereafter at least once every 45 to 60 minutes as long as the motor vehicle is in operation.

2. The ignition interlock device shall produce a visual and audible signal of the need to produce a breath sample for the rolling retest and shall be modified as necessary to accommodate operators who are hearing impaired. The offender shall have 15 minutes to provide the required rolling retest breath sample.

3. A free restart shall not apply if the ignition interlock device was awaiting a rolling retest that was not delivered.

4. A deep lung breath sample at or above the fail point or a failure to provide a rolling retest deep lung breath sample within the required time shall activate the motor vehicle's horn and cause the motor vehicle's headlights, parking lights, emergency lights, or other light source approved by the commission to flash until the engine is shut off by the offender or a passing breath test is provided.

5. Once the vehicle has been turned off, all prestart requirements shall become applicable.

6. The violations reset message shall instruct the offender to return the ignition interlock device to the service provider for servicing within five days.

7. If the ignition interlock device is not reset within five days, a permanent lockout will occur.

J. Additional technical specifications for the operation and installation of the ignition interlock device may be described in the contract between the commission and the service provider.

K. The vendor shall notify the commission in writing if the approval or certification of a device that is approved or has been submitted for approval for use in Virginia is or ever has been denied, withdrawn, suspended, or revoked in another state, whether the action occurred before or after approval in Virginia. This notification shall be made in a timely manner, not to exceed 15 days after the vendor has received notice of the denial, withdrawal, suspension, or revocation of approval or certification of the device, whether or not the action will or has been appealed.

24VAC35-60-80. Ignition interlock device installation.

A. No offender who has a case pending in the court system shall have an interlock installed in Virginia unless enrolled in and monitored by the ASAP program in the area where the case originated. Offenders subject to a DMV ignition interlock requirement shall not have an interlock installed in Virginia unless first authorized by the ASAP. Prior to installation of the device, the vendor must receive written or electronic authorization from the ASAP. This section also applies to out-of-state offenders who have a Virginia ignition interlock requirement. This enables the commission to maintain consistency in policy and use of ignition interlock devices in the Commonwealth of Virginia and allows for a consistent pattern of instruction to the service provider.

B. The ignition interlock device shall be installed by a commission-approved manufacturer or authorized service provider within 30 days of the date of the court order; if not, the service provider shall notify the ASAP. Once the ignition interlock has been installed, the service provider shall send an authorized installation report to the ASAP, via a method established by the commission, documenting that the ignition interlock device has been installed. Once verification of an authorized installation has been received by the ASAP, DMV shall be notified that the offender has successfully installed the interlock device.

C. All agreements between the service provider and the offender shall be in the form of a contract and signed by the service provider and the offender. Copies of the written contract shall be retained by the service provider with a copy given to the offender.

D. Prior to installation of the ignition interlock device, offenders shall provide to the service provider:

1. Photo identification. If no photo identification is available at the time of installation, other adequate proof of identification may be accepted to avoid delay of the installation. However, photo identification must be presented prior to the first calibration appointment;

2. A copy of the registration or title containing the vehicle identification number (VIN) of all motor vehicles owned or routinely driven by the offender and a statement disclosing the names of all other operators of the motor vehicles owned or driven by the offender;

3. A notarized affidavit, approved by the commission, from the registered owner of the vehicle granting permission to install the device if the car is not registered to the offender. If the owner is present at installation, provides valid identification, and signs the consent to install form in the service provider technician's presence, notarization of the consent to install form is not required; and

4. Written authorization from the commission if the air volume requirement, blow pressure, or anti-circumvention features of the ignition interlock device are to be lowered or disabled in order to compensate for an offender's diminished lung capacity, when applicable.

E. Under no circumstances shall an offender or anyone accompanying the offender be permitted to observe installation of the ignition interlock device.

F. The service provider shall inspect all motor vehicles prior to installation of the device to ensure that they are in acceptable mechanical and electrical condition. Under no circumstances shall staff of the authorized service provider install a device until and unless the motor vehicle is approved following the inspection. A commission-approved pre-inspection checklist documenting the vehicle's condition at installation shall be completed and placed in the offender's file.

G. The installation shall include tamper-resistant features at all ignition interlock electrical connections so as to make evident all attempts to circumvent or otherwise alter the normal functioning of the ignition interlock. At a minimum, the service provider shall ensure that the vehicle starter wire connected to the ignition interlock is secured with uniquely identifiable heat shrink tubing or its equivalent and that all connected wires are wrapped with uniquely labeled service provider tape.

H. An oral, written, or video orientation to the ignition interlock device shall be developed and delivered by the service provider to the offender and other persons who may drive the motor vehicle, including information on the use and maintenance of the device as well as all service center locations, and procedures for regular and emergency servicing. A demonstration interlock will be available at the installation site for use in the training of customers.

I. If, during the installation, the offender fails to pass the initial breath test, the installation shall be halted and the ASAP notified.

J. The manufacturer or service provider shall maintain a toll-free 24-hour emergency phone service that may be used to request assistance in the event of failure of the ignition interlock device or motor vehicle problems related to operation of the ignition interlock device. The assistance provided by the authorized service provider shall include technical information and aid in obtaining towing or roadside service. The expense of towing and roadside service shall be borne by the offender unless it is determined by the commission that the ignition interlock device failed through no fault of the offender. If this is the case, the manufacturer or service provider shall be responsible for applicable expenses. The ignition interlock device shall be made functional within 48 hours of the call for assistance or the ignition interlock device shall be replaced.

K. At the time of device installation, a service provider may charge an installation fee. The maximum permissible cost for installation shall be set by the commission, and service providers shall not be permitted to exceed the maximum fee established by the commission. A portion of these fees shall include costs for offender indigency funds. In addition to the maximum fee permitted, service providers may collect applicable taxes and charge for optional insurance to cover device theft or accidental damage. Optional insurance shall be offered by the service provider, and a written copy of the insurance policy stating clearly the applicable coverages, coverage amounts, conditions, and exclusions shall be given to offenders who purchase the insurance. When the ignition interlock is installed on a motorcycle or moped, service providers may require offenders to provide a saddle bag or similar waterproof container in which the device components may be stored as a condition of eligibility for the optional insurance.

L. The manufacturer or the service provider shall provide service to those offenders who are eligible for a reduction in fees based upon a declaration of indigence by the court and approval by the commission.

M. No later than the first service appointment, the offender shall provide to the service provider a statement from the licensed drivers who will be driving the offender's motor vehicle acknowledging their understanding of the requirements of the use of the ignition interlock device.

N. An ignition interlock device installed and assigned to one offender shall not be assigned simultaneously to any additional offender for the purpose of attempting to comply with a Virginia ignition interlock requirement.

O. The ignition interlock device shall not be removed from any offender's vehicle for the sole purpose of permitting an offender to transfer to another interlock service provider without written permission from the commission. If the offender's reason to transfer to another interlock service provider is based upon a malfunctioning interlock device or a legitimate customer service issue, the commission shall not unreasonably deny permission and shall authorize the transfer within five business days of all relevant information being received.

24VAC35-60-90. Calibration and monitoring visit.

A. Only calibration units (i) found on the current National Highway Traffic Safety Administration's Conforming Products List of Calibrating Units for Breath Alcohol Testers or (ii) approved by the commission shall be used by the service provider to calibrate ignition interlock devices.

B. The service provider shall:

1. Provide service and monitoring of the ignition interlock device at least every 30 days. All ignition interlock calibrations shall occur at a service provider interlock service facility unless otherwise approved by the commission;

2. Calibrate the ignition interlock device at each service appointment using a dry gas or wet bath reference sample. The service provider shall ensure that dry gas and wet bath reference values are adjusted in a manner approved by the commission;

3. Calibrate the ignition interlock device for accuracy by using a wet bath simulator or dry gas alcohol standard with an alcohol reference value between.030 and.050 g/210L;

4. Expel a three-second purge from the wet bath simulator or dry gas standard prior to introducing the alcohol reference sample into the ignition interlock device;

5. Perform an accuracy check that will consist of two consecutive reference checks with the result of each individual check being within plus or minus 10% or 0.003, whichever is smaller, of the alcohol reference value introduced into the ignition interlock device. The time period between the first and second consecutive accuracy check shall not exceed five minutes;

6. House and use wet bath simulators in environmentally stable, temperature controlled settings. Wet bath simulators shall contain mercury-in-glass thermometers or digital thermometers. The thermometers shall read 34°C, plus or minus 0.2°C, during analysis and be certified annually using a National Institute of Standards and Technology traceable digital reference thermometer. In addition, the service provider shall use alcohol reference solutions prepared and tested in a laboratory with reference values traceable to the National Institute of Standards and Technology. The 500-ml bottles containing simulator solution shall be tamper proof and labeled with the lot or batch number, value of the reference sample in g/210L, and date of preparation or expiration. Alcohol reference solutions must be used prior to expiration and within one year from the date of preparation. In addition, wet bath simulator solutions shall be replaced every 30 days or prior to every 30th test, whichever occurs first. A sticker shall be placed on the wet bath simulator indicating the date of the most recent simulator solution replacement. In addition, a written logbook or electronic database recording the date and result of each simulator test shall be maintained on site;

7. Store dry gas alcohol standard tanks in a manner consistent with the gas manufacturer's specifications. The dry gas tanks shall have a label attached that contains the components and concentration of the reference value of the gas, an expiration date that shall not be longer than three years from the date of preparation, and the lot or batch number. Dry gas alcohol standards must be certified to a known reference value and be traceable to the National Institute of Standards and Technology. The reference value shall be adjusted for changes in elevation and pressure. Interlock service vendors shall possess a certificate of analysis from the dry gas standard manufacturer. Dry gas tanks shall be secured in a manner as to prevent harm to the public;

8. Retrieve data from the ignition interlock device data log for the previous period and electronically submit it to the ASAP within 24 hours of calibration;

9. Record the odometer reading of the vehicle;

10. Check the ignition interlock device and wiring for signs of circumvention or tampering and electronically report violations to ASAP within the required timeframe established by the commission;

11. Collect the monthly monitoring fee from the offender. If an offender who has not been declared to be indigent by the court is three or more months delinquent in payments, the service provider may, in its discretion, refuse to provide calibration services, but shall not remove the ignition interlock device without authorization from the commission. Offenders with an outstanding balance [ in excess of $250 ] with any Virginia-approved ignition interlock service provider shall not be permitted to install an interlock device with another ignition interlock service provider;

12. Verify that the offender has a photo identification prior to calibrating the ignition interlock device if photo identification was not already presented at the time of installation; and

13. Conform to other calibration requirements established by the commission, as applicable.

C. All malfunctions of the ignition interlock device shall be repaired or the ignition interlock device replaced by the service provider within 48 hours at no additional expense to the offender. If it is shown that the malfunction is due to damage to the device as a result of mistreatment or improper use, the offender shall be responsible for applicable repair fees.

D. A certified technician shall be available at the service center during specified hours to answer questions and to deal with mechanical concerns that may arise with a motor vehicle as a result of the ignition interlock device.

E. The ignition interlock device shall record, at a minimum, the following data:

1. The [ The ] time and date of failed breath tests;

2. The time and date of passed breath tests;

3. The breath alcohol level of all tests; [ and ]

4. The time and date of attempts to tamper or circumvent the ignition interlock device [ ;.

5. A photo of each person delivering an accepted breath test sample for analysis by the ignition interlock device; and

6. A reference photo of the offender; and

7. A photo of the vehicle's driver seat after every initial start-up provided on the interlock device within a timeframe established by the commission. ]

F. At the time of device calibration, a service provider may charge a monthly monitoring fee. The maximum permissible cost for monitoring and calibration shall be set by the commission through the ignition interlock regulations, and service providers shall not be permitted to exceed the maximum fee established by the commission. A portion of these fees shall include costs for administrative support and offender indigency funds. In addition to the maximum fee permitted, service providers may collect applicable taxes and charge for optional insurance to cover device theft and accidental damage. Fees for the first monthly monitoring and calibration visit will be collected from the user in advance at the time of installation and monthly thereafter when services are rendered.

24VAC35-60-110. Records and reporting.

A. The service provider shall be subject to announced or unannounced site reviews for the purpose of inspecting the facilities and offender records. Upon request, access to all service provider locations, records, and financial information shall be provided to the commission for the purpose of verifying compliance with state law, commission regulations, and the service provider agreement.

B. In accordance with federal confidentiality guidelines, all personal and medical information provided to the service provider regarding offenders shall be kept confidential. If the information is temporarily held at the offender's service center, it shall be stored in a locked filing cabinet when unattended by a service provider employee.

C. After installing an interlock, the service provider shall provide the ASAP with an installation report, within 24 hours, that includes:

1. The name, address, and telephone number of the offender;

2. The registration information of the motor vehicle; and

3. The serial number of the installed ignition interlock device and camera.

D. After performing a monitoring and calibration check, the service provider shall submit to the ASAP, within 24 hours, all data generated to include:

1. Name of the offender whose device was monitored;

2. Name, address, and telephone number of the monitoring official;

3. Date of monitoring and calibration;

4. Motor vehicle make, model, year, identification number, and odometer reading;

5. Number of miles driven during the monitoring period;

6. Make, model, and serial number of the ignition interlock device and camera;

7. A change out of the device (handset or control box) and reason for the change out;

8. Data indicating that the offender has attempted to start or drive the motor vehicle with a positive BAC at or above the fail point;

9. Attempts to alter, tamper, circumvent, bypass, or otherwise remove the device;

10. Noncompliance with conditions of the ASAP or interlock program;

11. Offender concerns;

12. Charges incurred for the monitoring visit; [ and ]

13. Date of next scheduled monitoring visit [ ;

14. A photo of each person who has delivered an accepted breath test sample or missed a retest on the ignition interlock device; and

15. A reference photo of the offender; and

16. A photo of the vehicle's driver seat after every initial start-up provided on the interlock device within a timeframe established by the commission ].

E. In addition, the service provider shall have available monthly reports detailing:

1. Installations during the period covered;

2. Calibrations performed during the period, by date and offender name, detailing any unit replacements made during the monitoring period;

3. Datalogger information from all ignition interlock devices;

4. Evidence of misuse, abuse, or attempts to tamper with the ignition interlock device;

5. Device failure due to material defect or improper installation; and

6. A summary of complaints received and corrective action taken.

F. The service provider shall be responsible for purchasing and providing necessary computer hardware and software to convey all data and information requested by the commission if the equipment is not already present at the commission office or the ASAP.

G. Accurate reports shall be submitted to the ASAP in the format specified by the commission.

H. The service provider shall provide a copy of the most recent "ASAP Ignition Interlock Agreement" to each offender at the interlock installation appointment and shall require the offender to read and sign the agreement.

24VAC35-60-130. Service provider technician certification.

A. Service provider state directors and technicians are required to possess a Virginia Ignition Interlock Certification Letter to perform ignition interlock services in the Commonwealth of Virginia. Newly hired technicians, however, may perform ignition interlock services under the direct supervision of a certified technician for training purposes for up to 90 days prior to obtaining a Virginia Ignition Interlock Certification Letter. In order to apply for a certification letter, service providers shall submit a completed application to the commission for approval of newly hired technicians and state directors. If approved by the commission, this application process may be waived for technicians and state directors providing interlock services in the Commonwealth of Virginia prior to June 30, 2016. The completed application shall include submission of:

1. A completed applicant form provided by the commission;

2. A complete local and national criminal history check;

3. A complete driver's record; and

4. Documentation issued by the commission of successful completion of the Virginia Ignition Interlock Certification Exam.

Failure to submit a completed application will result in disqualification from consideration for a Virginia Ignition Interlock Certification Letter by the commission to perform ignition interlock services in the Commonwealth of Virginia. The commission reserves the right to deny a certification letter to an interlock service provider technician or state director due to concerns identified in the application to include, but not be limited to, criminal history background and driver's transcript issues.

B. Applicants shall be required to complete a Virginia Ignition Interlock Certification Exam. Successful completion of the exam requires a score of 80% or higher. Applicants who fail to successfully complete the state certification exam on the first attempt shall be allowed a second opportunity to successfully complete the exam. Applicants who fail to successfully complete the state certification exam on the second attempt shall not be allowed to reapply to provide ignition interlock services for the Commonwealth of Virginia for six months from the date of the second failed exam. Service providers shall be required to pay an administrative fee, as provided in 24VAC35-60-50 B 3, to the commission for all second and subsequent attempts to successfully complete the state certification exam. Applicants who successfully pass the state certification exam will receive documentation of successful completion from the commission that shall be submitted with the application for a Virginia Ignition Interlock Certification Letter to perform ignition interlock services in the Commonwealth of Virginia.

C. The commission may deny, revoke, suspend, or terminate a previously issued Virginia Ignition Interlock Certification Letter for a service provider technician or state director for any of the following reasons:

1. The technician or state director is Having been convicted of a felony;

2. The technician or state director is Having been convicted of a misdemeanor potentially punishable by confinement;

3. The technician or state director commits Committing an unethical, deceptive, or dishonest act that negatively impacts the integrity of the ignition interlock program;

4. The technician or state director fails Failing to demonstrate the ability to consistently comply with ordinances, statutes, administrative rules, or court orders, whether at the local, state, or federal level; or

5. The technician or state director fails Failing to demonstrate possession of the sufficient knowledge or skill required to perform ignition interlock services in the Commonwealth of Virginia;

6. Making a material misstatement or omission in an application; or

7. Defrauding any client, service provider, or other person or entity in the conduct of the licensee's business.

A service provider technician or state director whose Virginia Ignition Interlock Certification Letter has been denied, revoked, suspended or revoked terminated may request, within 15 days of notification, a hearing with the commission to contest the decision judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia). In the event that the decision to suspend or revoke the Virginia Ignition Interlock Certification Letter of a service provider's technician or state director is upheld, the technician or state director shall not perform interlock services in the Commonwealth of Virginia for the entire suspension period, to include any period of contestment, or in the case of a revocation or termination, on a permanent basis. This prohibition includes any period during which the denial, suspension, revocation, or termination is being contested. The service provider is required to return the Virginia Ignition Interlock Certification Letter to the commission within 15 days of the date that the certification was suspended, revoked, or terminated, by the commission.

D. Once the completed application has been approved by the commission and all other qualifications have been met by the applicant, a Virginia Ignition Interlock Certification Letter to perform ignition interlock services in the Commonwealth of Virginia shall be issued to the applicant by the commission. The certification letter shall contain the effective date of the letter and a certification number specific to the applicant. The certification letter will be valid for a time period specified by the commission unless otherwise suspended, revoked, or terminated but for no longer than the service provider contract end date. In the event that an applicant is not approved for a Virginia Ignition Interlock Certification Letter to perform interlock services in the Commonwealth of Virginia, the commission will notify the service provider in writing within 10 days of the determination. The Virginia Ignition Interlock Certification Letter is subject to review by the commission at its discretion during the course of the certification period.

E. An application to renew a Virginia Ignition Interlock Certification Letter for an ignition interlock technician or state director shall be submitted 30 days prior to the expiration date printed on the current certification letter. A technician or state director who has had his state certification revoked or terminated shall be ineligible to reapply for a Virginia Ignition Interlock Certification Letter unless otherwise approved by the commission.

F. Service providers are required to surrender Virginia Ignition Interlock Certification Letters for technicians and state directors who are no longer employed with their company. The surrendered certification letter shall be sent to the commission within 15 days of the date that the technician or state director is no longer employed with the service provider.

G. In addition to the successful completion of the Virginia Ignition Interlock Certification Exam required for application, the commission may order that a technician or state director performing ignition interlock services in the Commonwealth of Virginia review requirements and retake the state certification exam to demonstrate that the technician or state director possesses the knowledge required to perform ignition interlock services in the Commonwealth of Virginia.

24VAC35-60-140. Emergency declarations.

The commission reserves the right to suspend service-related requirements of this chapter in applicable geographical areas when there exists a federal or state disaster or declaration of emergency.