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: § 18.2-270.2 of the Code of Virginia.

Name of Petitioner: Cynthia Ellen Hites.

Nature of Petitioner's Request: "I, Cynthia Hites, 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 to Virginia Administrative Code 24VAC35-30-150. Currently, Alcohol Safety Action Program (ASAP) case managers can deny citizens' right to due process by choosing to restart an ASAP client's court imposed ignition interlock sentence. Upon suspicion of an ignition interlock violation, ASAP case managers should initiate a non-compliance hearing for that offender. However, ASAP case managers are usurping the jurisdiction of the court, endowed by §§ 18.2-271.1 and 18.2-271.2 of the Code of Virginia, by personally altering or extending the sentences of their clients. ASAP case managers serve in a probationary capacity, and as such, are precluded from considering evidence surrounding ignition interlock violation accusations. Despite this, ASAP case managers are choosing to impose punishment on citizens without the benefit of a trial. The current verbiage of the statute is as follows: '24VAC35-30-150. Reporting. ASAPs shall work with the courts and service providers to establish reports essential to the probationary function of the case manager.' To clarify for all ASAP and VASAP personnel, and reiterate wherein lies judicial authority, I request the addition of the following language to 24VAC35-30-150: '24VAC35-30-150. Reporting. ASAPs shall work with the courts and service providers to establish reports essential to the probationary function of the case manager. Under no circumstance shall an ASAP case manager alter any court-imposed sentence, or attempt to personally adjudicate a suspected ignition interlock violation.' This simple change will help protect Virginians from being unjustly penalized before all evidence and accusations against them can be presented in a court of law."

Agency Plan for Disposition of Request: The Commission on Virginia Alcohol Safety Action Program will consider this petition at its quarterly meeting on December 13, 2019.

Public Comment Deadline: December 6, 2019.

Agency Contact: Richard Foy, Regulatory Coordinator, 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. R19-32; Filed April 10, 2019, 12:35 p.m.

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: David Hites.

Nature of Petitioner's Request: "Under § 2.2-4007 of the Code of Virginia, I David Hites, ask that the following change be made to Virginia Administrative Code 24VAC35-60-70, Section F, Paragraph 3 from: 'The ignition interlock device shall be alcohol specific, using an electrochemical fuel cell that reacts to and measures alcohol, minimizing positive results from other substances.' to: 'The ignition interlock device shall be alcohol specific, using any proven technology that reacts to and measures alcohol only, as defined in 24VAC35-60-20 "Definitions" meaning ethyl alcohol, also called ethanol (C₂H₅OH).' The law as currently written demands the use of fuel cell technology. It also demands that breath alcohol ignition interlock devices (BAIIDs) be ethanol specific. The two requirements cannot simultaneously be met. If the law requires BAIIDs to be specific to ethanol, then a fuel cell does not meet that requirement, as by its nature it will detect other alcohols. The law must be changed due to its inconsistency and impossibility to meet both standards. Thank you for your consideration."

Agency Decision: Request denied.

Statement of Reason for Decision: The petitioner's request was considered by the Commission on Virginia Alcohol Safety Action Program (VASAP) at its quarterly meeting on March 29, 2019. VASAP interprets and defines the terms "alcohol" and "alcohol specific" so as to be consistent with the Code of Virginia, the National Highway Traffic Safety Administration's Model Specifications for Ignition Interlock Devices, the Association of Ignition Interlock Program Administrator's standardized vocabulary directory, many research studies, and common industry language. In order for the VASAP regulations to remain consistent with both the historic and current usage of these terms, the commission denied the petition.

Agency Contact: Richard Foy, Regulatory Coordinator, 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. R19-04; Filed April 10, 2019, 12:50 p.m.