24VAC35-60 Ignition Interlock Program Regulations

REGULATIONS

Vol. 25 Iss. 18 - May 11, 2009

TITLE 24. TRANSPORTATION AND MOTOR VEHICLES

COMMISSION ON THE VIRGINIA ALCOHOL SAFETY ACTION PROGRAM

Chapter 60

Proposed Regulation

Title of Regulation: 24VAC35-60. Ignition Interlock Program Regulations (adding 24VAC35-60-10 through 24VAC35-60-110).

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

Public Hearing Information:

May 13, 2009 - 10 a.m. - General Assembly Building, 910 Capitol Street, 3rd Floor East Conference Room, Richmond, VA

Public Comments: Public comments may be submitted until July 10, 2009.

Agency Contact: Richard L. Foy, Technical Instructor, Commission on the Virginia Alcohol Safety Action Program, 701 East Franklin Street, Suite 1110, Richmond, VA 23219, telephone [phone], FAX (804) 786-6286, or email [e-mail].

Basis: Section 18.2-271.2 of the Code of Virginia establishes the Commission on Virginia Alcohol Safety Action Program (VASAP) in the legislative branch of state government. Section 18.2-270.2 A directs the Executive Director of the Commission on VASAP or his designee to certify ignition interlock systems in the Commonwealth and to adopt regulations and forms for the installation, maintenance and certification of such ignition interlock systems.

Purpose: Presently, there are no existing ignition interlock regulations. These new regulations are required by § 18.2-270.2 of the Code of Virginia. Section 18.2-271.1 of the Code of Virginia requires persons convicted of a first offense DUI (who had a blood alcohol concentration of 0.15 or above), and persons convicted of a second or subsequent DUI, to have an ignition interlock device installed on their vehicle(s) as a condition of issuance of a restricted driver’s license. Ignition interlocks prevent drivers from starting their vehicles if they have been drinking. This protects the safety of the offender, his family, and the public. Interlocks also serve a probationary function by recording on the unit’s data chip the driving activities of probationers. This regulation is designed to ensure that the interlock devices installed in Virginia are reliable, accurate, and properly installed. Furthermore, it ensures that interlock service centers are easily accessible to all Virginia citizens and that quality service is provided in a timely manner.

Substance: The new regulations will provide information regarding the certification of ignition interlock devices and ignition interlock service providers in Virginia. Procedures for the installation, maintenance, and removal of ignition interlock devices will be outlined as well as requirements for reporting and recordkeeping.

Issues: These regulations provide detailed information and outline performance standards for the Commonwealth’s ignition interlock program. Information about what interlock companies need to do to conduct business is included so that multiple vendors can potentially operate in the state, thereby giving customers more options. The regulations further ensure that both the public and ignition interlock service providers are aware of the commission’s performance expectations and the potential consequences of noncompliance. The regulations provide a mechanism for the government to award contracts to qualifying companies and to cancel contracts with companies that do not meet minimum standards. These provisions should result in better service provision to the citizens of the Commonwealth. No apparent disadvantages to the public or the government are noted; however, provisions in the regulations that prohibit interlock companies from subcontracting installations might bar some interested businesses in Virginia from doing contract work for interlock vendors.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Commission on Virginia Alcohol Safety Action Program proposes to establish regulations for the ignition interlock program that has been operating since 1994. While most of the proposed rules have already been followed in practice, a number of new fees are proposed.

Result of Analysis. There is insufficient data to accurately compare the magnitude of the benefits versus the costs.

Estimated Economic Impact. The Code of Virginia¹ requires persons with certain DUI convictions to have installed an ignition interlock device on their vehicles as a condition of restricted driving privileges. Installation, maintenance, and certification of ignition interlock systems have been administered without regulations since 1994 based on the language in the Code of Virginia, interlock RFP and vendor contract. The proposed regulations will establish rules addressing the ignition interlock program.

According to the Commission on Virginia Alcohol Safety Action Program (VASAP) the proposed regulations, for the most part, have already been followed in practice. The parts of the proposed regulations that address policy and procedures already in effect are not expected to create any immediate economic impact as they have been already in place since 1994. Probably the main economic effect of these changes will be the ease of access to and improved clarity of the policies and procedures regarding ignition interlock program. Among others, the proposed regulations address issues such as approval, cancellation, suspension, and revocation of manufacturers, services providers, and ignition interlock devices; device specifications; device installation procedures; calibration an monitoring visits; device removal; maintenance of records and reporting by service providers.

VASAP indicates that the main change included in the regulations is the establishment of numerous fees. The proposed fees are a $250 application fee, a contract review fee, a service center fee, a fee for VASAP, and a fee for local serving ASAP.² With the exception of the application fee, the amounts of fees are not specified in the proposed regulations.

The $250 application fee will be collected from vendors wishing to conduct business in Virginia to cover the costs of processing required paperwork, evaluating potential vendors, and contracting. The total revenues generated by this fee will depend on the number of vendor applications which is not expected to be many.

Even though the amount of the contract review fee is not specified in the regulations, VASAP is planning to collect $250 annually from vendors to cover the costs of overseeing them to ensure their compliance with the state law, agency regulations, and their contract. Similarly, the total revenues from this fee will depend on the number of vendors doing business in Virginia which is not expected to be many.

The planned amount of the service center fee is $75 annually per facility to cover the costs of yearly compliance audits and site visits. This fee will be paid by the vendor. There were a total of 23 service facilities in 2008 which implies that $1,725 would have been collected from the vendor.

The proposed changes also establish a fee for VASAP on each offender. The planned fee for VASAP is $10 per month per offender with an ignition interlock device installed until the device is removed. Last year there were 4,137 devices installed in Virginia which would result in approximately $496,440 in annual revenues (assuming no devices were uninstalled and all were installed at the beginning of the year).

Finally, proposed changes establish a monthly fee for local ASAP on each offender. In practice, a $5 fee has been sent to local ASAP to cover their administrative costs for this program. Although not specified in the regulations, VASAP plans to increase this fee from $5 per month to $10 per month per offender with an ignition interlock device installed until the device is removed. This fee would generate the same amount of revenues as the previous fee discussed.

In general, collecting revenues from the entities who are responsible for generating costs would prevent economic externalities and help support the free market dynamics working toward an efficient allocation of economic resources. However, the proposed regulations with the exception of one fee do not specify the amount of fees that will eventually be imposed. Thus, there is not enough information on whether the fees imposed in practice will be commensurate with the costs they intended to cover and be economically beneficial.

Businesses and Entities Affected. The proposed regulations apply to ignition interlock manufacturers, vendors, service providers, and offenders with an ignition interlock installed on their vehicles. In 2008, there were 4,137 devices installed in Virginia by one vendor with 23 facilities.

Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth.

Projected Impact on Employment. Since most of the regulations proposed have already been in effect in practice, no significant economic effect is expected upon promulgation of these already enforced provisions. The proposed establishment of fees, on the other hand, could have an impact on the demand for labor through changing compliance costs and new revenues. However, the proposed regulations do not specify the amount of fees. Also, who will eventually end up paying the proposed fees cannot be determined from the limited information available. It may or may not be possible for service providers to pass on the fees to the offenders, or the vendor depending on the specifics of the contractual arrangements or other market factors.

Effects on the Use and Value of Private Property. While the ignition interlock program has a direct effect on the use and value of vehicles, the main change in the proposed regulations is the establishment of authority to impose fees which are not believed to have a direct effect on the use and value of private property. The additional fees imposed may affect the asset value of the service centers or the vendor depending on who will eventually absorb the additional fees.

Small Businesses: Costs and Other Effects. The proposed regulations are not believed to have an effect on small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed regulations are not believed to have an effect on small businesses.

Real Estate Development Costs. The proposed regulations are not believed to have an effect on real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

______________________

¹ Section 18.2-271.1

² The proposed regulations do not address the installation and monthly monitoring fee that will be paid by the offender to the service provider.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The Commission on VASAP concurs with the economic impact analysis. With regard to the section entitled "Projected Impact on Employment," it is not the desire of the commission to publish associated fee schedules in the regulations, and in the alternative, to address fees contractually with participating vendors. This will permit the commission to be more responsive to changing market conditions without requiring the frequent issuance of new regulations when a change in fees is warranted. The portion of fees required to be submitted to the Commission on VASAP and the local ASAPs will be made by the vendor.

Summary:

The proposed regulation provides information regarding the certification of service providers and ignition interlock devices in Virginia. Procedures for the installation, maintenance, and removal of ignition interlock devices are outlined as well as requirements for reporting and recordkeeping.

CHAPTER 60
IGNITION INTERLOCK PROGRAM REGULATIONS

24VAC35-60-10. Purpose.

The purpose of these regulations is to establish a set of standards for the Commonwealth of Virginia's ignition interlock program. Authority to issue these regulations is granted to the Executive Director of the Commission on Virginia Alcohol Safety Action Program (VASAP) or authorized designee by § 18.2-270.2 of the Code of Virginia.

24VAC35-60-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Alcohol" means ethyl alcohol, also called ethanol (C₂H₅OH).

"BAC" or "blood alcohol concentration" means the amount of alcohol in an offender's blood or breath as determined by chemical analysis, which shall be measured by the number of grams of alcohol per 100 milliliters of blood, or 210 liters of breath.

"Breath test" means an analysis of the breath alcohol concentration of a deep lung breath sample.

"Calibration" means the process that ensures an accurate alcohol concentration reading is being obtained on the ignition interlock device.

"Commission" means the Commission on Virginia Alcohol Safety Action Program (VASAP).

"Deep lung breath sample," also known as "alveolar breath sample," means an air sample that is the last portion of a prolonged, uninterrupted exhalation and that gives a quantitative measurement of alcohol concentration from which breath alcohol concentrations can be determined. "Alveolar" refers to the aveoli, which are the smallest air passages in the lungs, surrounded by capillary blood vessels and through which an interchange of gases occurs during respiration.

"Device" means a breath alcohol ignition interlock device.

"Device certification" means the testing and approval process required by the Commission on Virginia Alcohol Safety Action Program (VASAP).

"DMV" means the Virginia Department of Motor Vehicles.

"Fail point" means the point at which the breath alcohol level of 0.02% is met.

"Free restart" means the ability to start the engine again within a preset period of time without completion of another breath test, when the condition exists where a breath test is successfully completed and the motor vehicle is started, but then the engine stops for any reason (including stalling).

"Ignition interlock system" means a device that (i) connects a motor vehicle ignition system to an analyzer that measures an offender's blood alcohol concentration; (ii) prevents a motor vehicle ignition from starting if the offender's blood alcohol concentration is at or above the fail point; and (iii) is equipped with the ability to perform a rolling retest and to electronically log the blood alcohol concentration during ignition, attempted ignition, and rolling retest.

"Interlock event" means vehicle operator activity that is recorded by the ignition interlock to include, but not limited to, vehicle starts and attempted starts, rolling retests, breath tests, lockouts, ignition shutoffs, power outages, and interlock tampering.

"Licensing" means the process of determining that a service center meets the requirements set by the Commission on VASAP.

"Lockout" means the ability of the ignition interlock device to prevent a motor vehicle's engine from starting.

"Manufacturer" means the actual maker of the ignition interlock device who assembles the product and distributes it to service providers.

"Motor vehicle" means every vehicle as defined in § 46.2-100 of the Code of Virginia, that is self-propelled, or designed for self-propulsion, to exclude bicycles, electric power-assisted mobility devices, electric powered-assisted bicycles, and mopeds.

"Offender" means the individual required by the court or the Department of Motor Vehicles to drive only motor vehicles that have certified ignition interlock devices installed.

"Permanent lockout" means a feature of the ignition interlock device in which a motor vehicle will not start until the ignition interlock device is reset by a service provider.

"Retest" means an additional opportunity to provide a deep lung breath sample below the alcohol fail point.

"Rolling retest" means a test of the offender's blood alcohol concentration required at random intervals during operation of the motor vehicle, which triggers the sounding of the horn and flashing of lights if (i) the test indicates that the offender has a blood alcohol concentration that is at or above the fail point or (ii) the offender fails to take the test.

"Service center" means the physical location where the service provider installs, calibrates, and removes the ignition interlock device on the offender's vehicle.

"Service provider" means the authorized supplier and installer of the approved ignition interlock devices. In some cases, the service provider may also be a manufacturer of an ignition interlock device.

"Tampering" means an unlawful act or attempt to disable or circumvent the legal operation of the ignition interlock device to include providing samples other than the natural breath of the offender, starting the motor vehicle without using the ignition switch, any other act intended to start the motor vehicle without first taking and passing a breath test, or physically tampering with the device to disable or otherwise disconnect the device from its power source.

"Temporary lockout" means a feature of the ignition interlock device that will not allow the motor vehicle to start for a preset time period after a breath test result indicates a BAC at or above the fail point.

"Vendor certification" means the process of determining that a vendor has been approved to provide services in the Commonwealth of Virginia.

"Violation" means an event, such as a breath test indicating a BAC at or above the fail point upon initial startup, a refusal to provide a rolling retest deep lung breath sample, a rolling retest with a BAC at or above the fail point, or tampering, which breaches the guidelines for use of the interlock device.

"Violation reset" means a feature of the ignition interlock device in which a service reminder is activated due to a violation.

24VAC35-60-30. When ignition interlock devices are required.

Ignition interlock devices are required:

1. When ordered by a court of proper jurisdiction pursuant to § 18.2-270.1 of the Code of Virginia; or

2. When administratively enforced by DMV pursuant to § 46.2-391.01 of the Code of Virginia.

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

A. The commission shall issue a request for proposals (RFPs) in compliance with the state 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 three years with an optional two-year renewal.

B. Integrity of the Ignition Interlock Program shall be upheld by restricting the delivery of interlock client service to the actual provider of the product (authorized service provider), thereby effectively preventing the extension of subcontracts to other persons or businesses who 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 the chain of evidence for court testimony and evidentiary procedures.

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

1. Evidence of a strong background in the development and maintenance of a statewide ignition interlock service program and evidence of operational programs in other states. The service provider must be dedicated to the installation and maintenance of ignition interlock devices and must supply and train staff and service center supervisors to assure good customer service and compliance with all contract requirements. Any personnel hired to install, calibrate, or inspect ignition interlock devices may not have ever been convicted of a felony or a crime substantially related to the qualifications, functions, and duties associated with the installation and inspection of the devices, or within a five-year period prior to hiring been convicted of a misdemeanor potentially punishable by confinement. The service provider must be able to ensure that technicians are trained and available to testify in court if required for noncompliance hearings.

2. A description of the service provider's present or planned provisions for distribution of the device in Virginia including all locations in the state where the device may be installed, serviced, repaired, calibrated, inspected, and monitored. Each facility shall be approved by the Commission on VASAP prior to its use and meet the following criteria:

a. Must pay an annual review fee to the Commission on VASAP.

b. Must comply with all local business license and zoning regulations, and with all federal, state, and local health, fire, and building code requirements.

c. Must meet the offender's physical needs for access.

d. Must maintain offender records in a manner that complies with federal confidentiality guidelines.

In addition, all services must be available statewide within a 50-mile drive to the home location of all residents of the Commonwealth.

3. Documentation of insurance covering product liability, including coverage in Virginia, with a minimum policy limit of $1 million per occurrence, and $3 million aggregate total. The service provider shall provide a signed statement from the manufacturer holding harmless the Commonwealth of Virginia, 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 any act or omission by the manufacturer or their service provider relating to the installation, service, repair, use, and/or removal of an ignition interlock device.

4. Documentation that the service provider will provide a full-time state ignition interlock coordinator who will work exclusively with the Virginia interlock program and reside in the Richmond, Virginia area. Among other duties, the coordinator will be expected to (i) respond promptly to any problems in the field, (ii) testify in court upon request, and (iii) assist and provide training to VASAP staff.

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

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.

B. The Commission on VASAP will establish by contract the following additional fees to be paid by the service provider:

1. Annual contract review fee to the Commission on VASAP.

2. Annual review fee for each service center to the Commission on VASAP.

3. Monthly fee to the Commission on VASAP for each offender with an ignition interlock installed until the device is removed.

4. Monthly fee to the local servicing ASAP for each offender with an ignition interlock device installed until the device is removed.

C. 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.

24VAC35-60-60. Cancellation, suspension, and revocation of manufacturers, service providers, and ignition interlock devices.

A. The commission may cancel, suspend, or revoke certification of an ignition interlock device and/or its manufacturer and service provider 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 cancelled.

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 service or the submission of required reports is not provided in a timely manner.

10. When required fees are not paid to the commission or local programs.

11. When there is a pattern of substandard customer service.

12. When the manufacturer or service provider interferes with or obstructs a site review or investigation by the commission.

13. When there are any other violations of the provisions contained in the Code of Virginia, commission regulations, or the ignition interlock contract.

14. When a manufacturer or service provider solicits the employment of another manufacturer's or service provider's technician, facility manager, or state ignition interlock coordinator.

15. When a manufacturer or service provider solicits business outside of the VASAP, or otherwise solicits individual ASAP branches through operational incentives, gratuities, or any other personal incentives.

16. When a manufacturer or service provider solicits business via direct influence or marketing to judicial, court, or DMV personnel.

B. If such cancellation, suspension, or revocation occurs, the manufacturer or service provider may request (within 15 days of notification) a hearing with the commission to contest the decision. Should the cancellation, suspension, or revocation be upheld, the manufacturer or service provider shall remain responsible for removal of all devices from customers' motor vehicles, and will bear the costs associated with the required removal and installation of a new approved device.

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 must be approved by the commission. The commission shall maintain a list of approved ignition interlock devices.

B. Each 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.

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 to the commission, for distribution to the local ASAPs, literature promoting its device.

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 latest model specifications published in the Federal Register by the National Highway Traffic Safety Administration, and that the ignition interlock device meets or exceeds those 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. All ignition interlock devices will be required to meet the model specifications for Breath Alcohol Ignition Interlock Devices (BAIID) as set forth in the most recent model specifications published in the Federal Register by the National Highway Traffic Safety Administration (NHTSA). At a minimum, the following specifications will 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 an electrochemical fuel cell that reacts to and measures ethanol, minimizing positive results from any other substance.

4. The ignition interlock device shall indicate when a sufficient sample of breath has been collected and shall indicate this by audible or visual means.

5. The ignition interlock device shall detect and record a BAC that is at or above the fail point for each ignition, attempted ignition, and rolling retest.

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 at or above the fail point is detected.

8. The ignition interlock device shall have the ability to prevent the normal operation of the motor vehicle by an offender who fails to retest.

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 after the applicable five-day grace period.

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 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 three days prior to the appointment. Should the offender fail to appear, the device shall lock out on the fifth day after the scheduled appointment, 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 500 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 such manner as to minimize opportunities to be tampered with, altered, bypassed, or circumvented. The ignition interlock device shall not spontaneously bypass the ignition system nor shall it be able to be made operational by any mechanical means of providing air to simulate alveolar breath. Any bogus breath anti-circumvention features used to pass laboratory testing of the ignition interlock device shall be turned on.

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

17. The ignition interlock device must operate at temperatures between -20 and 70 degrees Celsius.

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.

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

G. All ignition interlock devices that have been approved by the commission shall have affixed 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 ignition relay after the successful completion of a breath alcohol test.

2. The device shall allow two minutes to elapse between the time the ignition is enabled and the start of the motor vehicle.

3. The ignition interlock device shall allow the motor vehicle to be restarted within two minutes of the engine being stopped without requiring an additional test.

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 is at or above the fail point on the second retest, the machine shall lock out for an additional 15 minutes and shall do so thereafter for each failed retest. 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 will occur.

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

1. An ignition interlock device shall require a rolling retest within the first 10 to 20 minutes after the start of the motor vehicle and randomly thereafter at least once every 20 to 40 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. The offender shall have six minutes in which 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. Any deep lung breath sample at or above the fail point or any 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, or emergency lights to flash until the engine is shut off by the offender.

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.

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. This enables VASAP to maintain consistency in policy and use of ignition interlock devices in the Commonwealth, and allows for a consistent pattern of instruction to the service provider.

B. The ignition interlock device must be installed by a manufacturer or authorized service provider within 30 days of the date of the court order; if not, the service provider will notify the ASAP.

C. All agreements between the service provider and the offender shall be in the form of a contract and be 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 and the local ASAP office.

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

1. Photo identification.

2. The name and policy number of their automobile insurance.

3. 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.

4. A notarized affidavit from the registered owner of the vehicle granting permission to install the device if the car is not registered to the offender.

5. 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.

E. Under no circumstances shall an offender be permitted to observe the installation of the device.

F. The service provider must 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 any device until, and unless, the motor vehicle is approved following the inspection.

G. Each installation shall include all of the tamper-resistant features required by the service provider such as unique seals, epoxies, or resins at all openings and exposed electrical connections.

H. An oral, written, or video orientation to the ignition interlock device will 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 each 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 will be halted and the ASAP notified.

J. The manufacturer and/or service provider must 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 service center technician that the ignition interlock device failed through no fault of the offender, in which case the manufacturer or service provider will 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 on VASAP through contract, and service providers will 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 damage. No installation fees shall be collected from the user until such services have been provided.

L. The manufacturer or service provider must provide indigent 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 must provide to the service provider a statement from every licensed driver who will be driving the offender's motor vehicle acknowledging their understanding of the requirements of the use of the ignition interlock device.

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

A. The offender must present photo identification to the service provider for all required services.

B. The service provider must:

1. Provide service/monitoring of the ignition interlock device every 30 days; the offender will be given a five-day grace period to have the device inspected.

2. Calibrate the ignition interlock device at each service appointment using a dry gas reference sample.

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

4. Record the odometer reading of the motor vehicle in which the ignition interlock device is installed.

5. Check the ignition interlock device and wiring for signs of circumvention or tampering, and electronically report to the local ASAP any violation within 24 hours of servicing.

6. Collect the monthly monitoring fee from the offender.

C. All malfunctions of the ignition interlock device will 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 mistreatment by the offender, and the offender has not purchased optional insurance, then the offender will 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 any 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 time and date of each failed breath test;

2. The time and date of each passed breath test;

3. The breath alcohol level of each test; and

4. The time and date of any attempt to tamper or circumvent the ignition interlock device.

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 on VASAP through contract, 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 VASAP 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 or 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 as such services are rendered.

24VAC35-60-100. Ignition interlock device removal.

A. Prior to removal of the ignition interlock device, the service provider must receive written authorization from the ASAP.

B. Offenders may not have their ignition interlock device removed or replaced by another manufacturer without written authorization from the ASAP.

C. If, at the time of removal, the service provider notices any failed tests that have not been backed up by a successful test within 10-15 minutes of the original test, the ASAP will be notified for approval before the removal is made.

D. Once the interlock has been removed, the service provider will send an authorized removal report to the ASAP via fax, email, or online database, documenting that the ignition interlock device has been removed and that all fees have been paid. Once verification of an authorized removal has been received by the ASAP, DMV will be notified that the offender has successfully completed the interlock requirements.

E. Whenever an ignition interlock device is removed, all components of the motor vehicle altered by the installation or servicing of the ignition interlock device must be restored to their original, preinstallation condition and removed in such a manner as not to impair the safe operation of the vehicle. All severed wires must be permanently reconnected (soldered) and insulated with heat shrink tubing or its equivalent.

F. No fee shall be charged to the offender for removal of the ignition interlock device.

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. Access to all service provider locations, records, and financial information shall be provided to any member of the commission staff 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, maintained in individual offender files and secured within a lockable filing cabinet at the offender’s service center. This filing cabinet shall remain locked during any period that the service center is unattended by a service provider employee.

C. Within 24 hours of installing an interlock, the service provider will provide the ASAP with an installation report that includes:

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

2. The owner, make, model, year, vehicle identification number, license plate number, and registration information of the motor vehicle; and

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

D. Within 24 hours after performing a monitoring/calibration check, the service provider shall submit to the local ASAP 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/calibration.

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

5. Number of miles driven during the monitoring period.

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

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

8. Any 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. Any attempts to alter, tamper, circumvent, bypass, or otherwise remove the device.

10. Any noncompliance with conditions of the ASAP or interlock program.

11. Any offender concerns.

12. All charges incurred for the monitoring visit.

13. Date of next scheduled monitoring visit.

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

1. All installations during the period covered.

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

3. All datalogger information from each ignition interlock device.

4. Any evidence of misuse, abuse, or attempts to tamper with the ignition interlock device.

5. Any device failure due to material defect or improper installation.

6. A summary of all 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 such equipment is not already present at the commission office or local ASAP.

G. Reports shall be submitted to the local ASAP in the format specified by the Commission on VASAP.

VA.R. Doc. No. R09-1589; Filed April 17, 2009, 12:39 p.m.