TITLE 24. TRANSPORTATION AND MOTOR VEHICLES

COMMISSION ON THE VIRGINIA ALCOHOL SAFETY ACTION PROGRAM

Agency Decision

Title of Regulation: 24VAC35-60. Ignition Interlock Program Regulations.

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

Name of Petitioner: Cynthia Hites.

Nature of Petitioner's Request: Petition to amend Virginia Administrative Code 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 24VAC35-60-70, to have the VASAP Breath Alcohol Ignition Interlock Device (BAIID) required breath sample size reduced from 1.5 liters to 1.0 liter. Due to generally smaller lung capacity compared to men, it has been shown women have 16 times the failed breath sample attempts (aborts) when using the BAIID".⁽¹⁾ Failed breath sample attempts can be caused by "not providing enough air or providing too much air, humming at the incorrect tone or volume, breaks in the hum, or too much humidity or saliva in the breath sample." This means women have 16 times the interaction with the machine upon startup, and, during rolling retests while on Virginia's roadways. I personally struggled mightily with the basic functionality of the device and experienced hyperventilation on numerous occasions due to sequential invalid samples during use of the ignition interlock device. Incidentally, an overlooked cause of the exponentially higher number of breath sample aborts for women, is simply tone of voice. The BAIID anti-circumvention feature requires the driver provide sufficient reverberation for the device's handset to detect human presence. Of course, women naturally tend to have higher pitched voices that produce less reverb, and can, and do, force a difficult and uncomfortable alteration in vocal method to achieve a passing breath sample. Paramount in my opinion, however, is the fact the maneuver required for the BAIID breath sample involves not tidal breath, but execution of the vital capacity maneuver to obtain the breath sample. The vital capacity maneuver obtains the greatest volume of air that can be expelled from the lungs after taking the deepest possible breath. Even then, the subject is required to actually force breath out of the lungs into the BAIID far beyond what's natural, and in my case, experience disorientation via hypoxia and actual physical lung pain frequently. "In order to fulfill the minimum 1.5 liter volume requirement...the sixty year old woman must exhale at least 60% of her vital capacity. Whereas the twenty year old man would only have to exhale about 25% of his vital capacity. At the same blood alcohol concentration (BAC), the smaller lung volume would yield a greater breath alcohol reading."⁽²⁾ So, in addition to being 16 times more difficult for women to simply achieve to a valid breath sample, the requirement alone can skew the test results to reflect an erroneously high BAC. To mitigate these existing human factors that inherently punish women, and others with similar known, or unknown conditions, to a greater degree; and to initiate a decrease in the potential for vehicle collision due to distracted driving, lowering the breath sample requirement to 1.0 liter will be a step closer to closing the disparity gap of punishment between sexes, and detrimental judicial imbalance currently existing due simply to physiological differences among offenders. States the statute 24VAC-35-60-70 F, 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." The one-liter volume breath sample requirement is legally permissible, and I implore the commission to take under advisement this petition to permanently lower the requirement, in order to strengthen the integrity of the program, so as to not unwittingly punish women, and incidentally; asthmatics, COPD sufferers, congestive heart failure survivors, and undiagnosed pulmonary patients to a greater degree. Please, dear Commissioners, weigh this petition and begin to create a more judiciously solid system. Humbly Yours, Cynthia E. Hites"

⁽¹⁾An Evaluation of Drivers Using an Ignition Interlock Device: Breath Tests While Driving. By Ben D. Sawyer and P. A. Hancock

⁽²⁾Breathing Related Limitations to the Alcohol Breath Test. By Dr. Michael P. Hlastala, Ph.D.

Agency Decision: Request denied.

Statement of Reason for Decision: On October 26, 2018, during its quarterly meeting, the Commission on VASAP considered and unanimously denied the petitioner's request on the following grounds: The National Highway Traffic Safety Administration (NHTSA) publishes model specifications for the use of ignition interlocks. These specifications state, "If a state wishes to set its minimum breath sampling size at 1.5 liters, and permit a 1.2 liter level upon medical recommendation, the model specifications will be able to support that decision." Consistent with the NHTSA specifications, Virginia already has a process in place in which any ignition interlock user, male or female, may have the breath volume requirement lowered upon presentation of documentation from a physician explaining the medical necessity to do so. In all cases in which this process is properly followed, VASAP will lower the breath volume in keeping with the physician's recommendation. The commission chair advised the petitioner in person of this decision at the October 26, 2018, meeting.

Agency Contact: Richard Foy, Field Service Specialist, Commission on the Virginia Alcohol Safety Action Program, 701 East Franklin Street, Suite 1110, Richmond, VA 23219, telephone (804) 786-5895, or email rfoy@vasap.virginia.gov.

VA.R. Doc. No. R18-32; Filed November 20, 2018, 11:10 a.m.