TITLE 24. TRANSPORTATION AND MOTOR VEHICLES

COMMISSION ON THE VIRGINIA ALCOHOL SAFETY ACTION PROGRAM

Agency Decision

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

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

Name of Petitioner: Cynthia Hites.

Nature of Petitioner's Request: "I, Cynthia Hites, 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 to the specific verbiage within Virginia Administrative Code 24VAC35-60-70, F, 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.' With the insertion of the word 'warn,' I request the statute be amended to read: 'The results of the test shall be noted through the use of green, yellow, and red signals, or similar pass/warn/fail indicators. No digital blood alcohol concentration shall be indicated to the offender.' ASAPs can cite an offender with a violation if that offender fails to reach 'zero' BrAC within 15 minutes of a failed IID reading. The problem lies in the fact that, currently, the State and the Interlock companies operate on two separate standards of 'zero.' Most people assume a Virginia ignition interlock prevents a car from starting when alcohol is detected. This is not true. In the small window between .000 and .02, a green light comes on, the IID display reads 'Start Engine,' the car is permitted to start, and the printed datalog reads 'Standing Pass.' The problem is, that without a yellow caution light, <.02, when the green light is displayed and the car starts, the driver can only assume they've reached zero and cleared the violation. No one has any idea they need more blows to reach zero and avoid a violation. This is why the law says 'green, yellow and red,' because without the yellow, the disparity between the two standards of zero leaves open a small 'window of fraud.' This allows an ASAP to claim an accusation of 'At 2:13 p.m. a BAC reading of 0.035 was registered. It was not cleared to zero within 15 minutes.' When, really, at 2:13 p.m. a .035 reading was indeed registered, however at 2:18 p.m. a .016 pass is logged, and a subsequent .012 passing test is recorded before turning off the car. This client and the passenger never saw a yellow light on the Alcolock device. They had no idea they didn't reach zero, and this pending case wasn't filed until almost 6 months after the event. I also experienced yellow light fraud. While 2 months sober, on July 21, 2016, a failed rolling retest with a BrAC of 0.058, plummeted within nine minutes to a passing .019. This could not be ethanol, and is PASSING, yet it was considered a violation. I coincidentally have a video of the entire event. The green light appearing, the 'Start Car' message, and my confusion as to what was occurring. The yellow caution light is shown and explained in the Alcolock LR Instruction Manual, and the Alcolock training video echoes the same device feature. Depending on your jurisdiction, if your breath sample contains an amount of alcohol over the warning threshold but not enough alcohol to fail a test, the handset will indicate 'Caution' and the indicator light will turn yellow. Please note that if you are aware your alcohol level is rising when you receive a 'Caution' do not start the vehicle engine since you are not likely to pass a retest and it may not be safe to drive. When you receive a 'Caution' message, you will have two options. You may wait 5 minutes and try the test again if you are certain there is no alcohol in your body, or you may press the bottom button to acknowledge that you intend to drive with alcohol in your system. If your breath sample contains an amount of alcohol above the fail level the handset will indicate a 'Lockout' message with a timer... Relying upon a non-ethanol-specific device, with its yellow caution light disabled, the ASAPs are able to cooperate with IID companies to violate totally compliant and unsuspecting citizens. Couple the absence of the yellow light, with automatically restarting 6 month IID time, and filing violations late, offenders are allowed to be suspended in a perpetual, indefensible loop, while their fees get divvied between the respective IID company, VASAP and ASAPs. It's an unsettling cooperation between the State and the contracted vendors, and perhaps amending the wording of law will prompt companies to comply with what's already mandated. The enigmatic yellow caution light."

Agency Decision: Request denied.

Statement of Reason for Decision: The Commission on the Virginia Alcohol Safety Program (VASAP) considered this petition at its September 11, 2020, meeting and decided to take no action. Virginia regulations do not require that ignition interlocks have a yellow warning light. A similar pass/fail indicator is sufficient, and all ignition interlock companies operating in Virginia are in compliance. Requiring a yellow warning light that functions in the manner requested by the petitioner would require some ignition interlock companies to produce new hardware and other companies to make software changes. This would be impractical and cost prohibitive.

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. R20-27; Filed September 11, 2020, 1:31 p.m.