24VAC35-60 Ignition Interlock Program Regulations

REGULATIONS

Vol. 32 Iss. 2 - September 21, 2015

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 (amending 24VAC35-60-20 through 24VAC35-60-110; adding 24VAC35-60-120, 24VAC35-60-130; repealing 24VAC35-60-10).

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

Public Hearing Information:

November 5, 2015 - 10 a.m. - General Assembly Building, Senate Conference Room B, 201 North 9th Street, Richmond, Virginia 23219.

Public Comment Deadline: November 20, 2015.

Agency Contact: Richard Foy, Field Services Specialist, 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 the Virginia Alcohol Safety Action Program (VASAP) in the legislative branch of state government. Section 18.2-270.2 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 devices.

Purpose: Driving under the influence (DUI) continues to be the proximate cause of many traffic fatalities in Virginia. Research over the past 20 years has validated the effectiveness of ignition interlocks in preventing impaired driving and reducing DUI recidivism, thereby protecting the health, safety, and welfare of the motoring public. As a probationary tool, data obtained from ignition interlocks is used to ensure offenders comply with court orders and receive the most appropriate education/treatment intervention. Ignition interlocks enable offenders to continue to drive to work, keep appointments, and meet responsibilities at home, minimizing disruption to families and eliminating the added cost and time of securing alternate transportation. Virginia's ignition interlock regulations have not been updated in several years. The purpose of the proposed regulations is to ensure that offenders and the public are receiving maximum benefit from the ignition interlock program by incorporating "best practices" that have been learned as a result of new technology, recent research, and several years of experience administering the Virginia ignition interlock program.

Substance: A number of requirements have been added to the regulations to conform to the latest technology in the ignition interlock industry. Major changes in the regulations include:

• The requirement that all ignition interlocks be equipped with cameras.

• The requirement that state directors and service technicians for all ignition interlock vendors pass a written test to demonstrate their knowledge of applicable state laws and regulations prior to being permitted to install ignition interlock devices in Virginia.

• The inclusion of wet bath simulators for use in the calibration of ignition interlock devices.

• The alteration of the length of time for motorists to complete a "rolling retest" when prompted.

Issues: The proposed regulations specify ignition interlock functional capabilities and standardize procedures for the installation, calibration, and removal of the devices. Minimum training and certification standards for ignition interlock service provider technicians are included. The proposed regulations will improve safety for the motoring public and enhance the customer experience for offenders. The Commonwealth of Virginia will benefit from better performance by the ignition interlock vendors, thereby reducing the amount of staff time required to train and monitor service center employees and to respond to problems. No disadvantages to the public or the Commonwealth are anticipated.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Commission on Virginia Alcohol Safety Action Program (VASAP) proposes to: 1) require that all ignition interlocks be equipped with cameras, 2) require that all ignition interlock vendors' state directors and service technicians take a certification test to demonstrate their knowledge of applicable state laws and regulations prior to being permitted to install ignition interlock devices, 3) incorporate existing fees into the regulation, establish new fees, and amend certain existing fees, 4) allow wet bath simulators for use in the calibration of ignition interlock devices, and 5) require sooner but less frequent rolling tests and increase the length of time for motorists to complete the test when prompted.

Result of Analysis. The benefits likely exceed the costs for the proposed changes. However, the practice of subcontracting, which is currently prohibited by the regulation, appears to have the potential to be a viable alternative to reduce compliance costs.

Estimated Economic Impact. There are numerous proposed changes. Each substantive change is discussed below.

Cameras: One of the proposed changes will require ignition interlock service providers to install cameras with the interlock device on all vehicles except motorcycles and mopeds. All four of the interlock vendors currently serving Virginia are reported to have this capability. The camera will capture the image of the person providing the breath sample and will ensure that offenders are not circumventing legal requirements by having other persons provide breath samples to start their vehicles. Thus, new imaging capability will likely deter noncompliance.

Addition of the camera will increase the equipment cost of the overall interlock device. VASAP estimates the cost of the camera to be about $250 and that there are approximately 9,000 interlock devices currently installed in the Commonwealth. A $250 added cost per camera would amount to $2,250,000 for 9,000 interlock devices. Even though ignition interlock devices are not required to be equipped with a camera by regulation currently, according to VASAP cameras are already being required by many courts in Virginia. Thus, the magnitude of total added equipment costs will likely be less than $2,250,000.

Other costs to the providers include additional labor time for each device installation and downloading of images from the device, updating technician training, possible changes in provider computer systems to accommodate increases in required bandwidth, speed, and storage capacity due to additional image data.

The interlock device is owned by the service providers who lease the device to the offenders. If an offender is convicted of driving under the influence, he or she is required to have an ignition interlock installed in any vehicle he or she operates. Second and any subsequent offenses require an ignition interlock installed in all vehicles owned by or registered to the offender in whole or in part. Service providers are allowed to charge an installation fee and monthly monitoring fee, which are regulated. Currently, the installation fee is $65 for a standard interlock device, and the monthly monitoring fee is $80.¹ However, according to VASAP, in most cases, providers waive the installation fee to promote their services. Thus, providers that are currently waiving the installation fee may start charging for the installation fee to cover their additional costs and providers that are not currently waiving the installation fee may have to absorb the added costs since there is no change in installation and monitoring fees due to the proposed addition of cameras to the interlock device.

Certification: Another proposed change will require service provider state directors and technicians to be certified in order to perform ignition interlock services in the Commonwealth starting June 30, 2015. Existing state directors and technicians as of that day will be grandfathered in. However, VASAP may order a state director or a technician to retake the state certification exam if he or she demonstrates lack of knowledge or incompetence while performing services. The test will measure applicants' knowledge on technical issues, customer service, ethics, and Virginia interlock laws and regulations. VASAP anticipates this requirement will improve compliance with laws and regulations. It will also likely increase administrative costs of VASAP as it will take time to prepare the test, administer it, and evaluate the results.

Currently, there are approximately 60 state directors and technicians in the Commonwealth who will be grandfathered in. In the future, no more than 10 certification applications per year are expected. The initial test will be provided free of charge. However, if the applicant fails in his or her first try, any subsequent tests will be provided at a cost of $250 each. Thus, depending on the outcome of the initial test, state directors and technicians may or may not incur test fees.

In addition to the test fee, applicants are likely to incur costs in terms of their time devoted to preparing for and taking the exam. VASAP estimates that it may take approximately 4 hours to study the curriculum and the test itself may take up to 2 hours to complete. Moreover, the test will be offered in Richmond. Since not all of the state directors and technicians perform their services in Richmond area, many applicants will likely incur travel and lodging expenses to obtain this certification. Furthermore, since the certification must be obtained prior to employment, it may introduce some delays and contingencies in the hiring process for providers.

Fees: The proposed changes will incorporate existing fees into the regulation. Currently, these fees are stated in the request for proposals for provider services but are not in regulations. Addition of the fees in the regulations will likely improve their visibility to the public and when they need to be amended in the future, afford the public an opportunity to review and provide input on such changes.

One of the unintended consequences of including fees in the regulations is the potential delay in adjusting the fees if market conditions dictate a change. A regulatory amendment may take a significant amount of time to go in effect and may introduce a delay in implementation of new fees. However, the proposed regulations address that concern by allowing VASAP to increase installation and monitoring fees up to 25% under certain conditions.

Additionally, the proposed fee changes will allow service providers to charge a higher fee for more complex interlock installations such as those on hybrid vehicles or on vehicles with a push button starter. The fee for more complex installations will be $130. This will allow providers to charge an additional $65 over the standard installations to cover additional technician labor and training associated with such installations. By allowing providers to charge a higher fee for more costly installations, this change is expected to better allocate cost responsibility for more costly installations.

The proposed fee changes will also allow a $50 fee to undo a permanent lockout if the permanent lockout occurred due to the fault of the offender and a $50 an hour fee, not to exceed four hours, for repairs and reinstallation of the interlock if the device is tampered with. These new fees will allow providers to recoup costs for installations and repairs necessitated by the fault of offenders. By holding offenders responsible for costs due to their actions, these two new fees are expected to align incentives with desired outcomes and allocate costs in an economically efficient manner.

The proposed changes will raise the maximum allowable charge for optional ignition interlock insurance from $6 to $8 per month to cover cameras. Since the overall cost of the equipment will increase due to inclusion of cameras, the insurance coverage and the premium to provide a higher coverage need to be adjusted. This change will make it possible for offenders to purchase insurance coverage commensurate with the coverage they need to protect themselves from financial liability in case the camera is damaged.

Finally, the proposed changes will allow providers to charge offenders no more than 10% over the replacement cost of ignition interlock device if it is damaged or lost and there is no insurance coverage. Currently, there is no limit on what the providers may charge for a replacement system. This change will prevent providers charging a fee significantly higher than the replacement cost while allowing an additional 10% to cover other potential costs such as shipping, handling, and postage.

Wet Bath Reference Sample: Currently, ignition interlocks must be calibrated using a dry gas reference sample. The proposed regulations will permit vendors to use either a dry gas or wet bath reference sample when calibrating ignition interlocks. This may reduce the cost of calibration for service providers as it will permit more ignition interlock models to be used in Virginia. Some interlock devices can only be calibrated using a wet bath simulator. On the other hand, inspection of different models may add to administrative costs of VASAP.

Rolling Test: Currently, a rolling retest is required within the first 10-20 minutes after the vehicle is started and then again at random intervals every 20 to 40 minutes. A rolling test is a test of offender's breath sample conducted at random intervals during the operation of the vehicle. Once the test is initiated, the offender has six minutes in which to submit a breath sample before the vehicle lights and horn activate.

The proposed regulations will require an initial rolling retest within five minutes of the vehicle starting, and the subsequent random rolling retests will now be less often (every 45-60 minutes). Also, the operator will be given 15 minutes instead of six minutes to provide a breath sample before the vehicle lights and horn activate. This change will deter the incentive an offender may have to drive under the influence when traveling short distances and arriving to their destination in less than 10-20 minutes and likely reduce the chances of distracted driving. Having fewer rolling retests and permitting extra time to complete the retest will give drivers additional time to pull to the roadside prior to submitting a breath sample.

Businesses and Entities Affected. These regulations primarily affect ignition interlock vendors, technicians, and offenders. There are currently four contracted vendors employing approximately 60 technicians in the Commonwealth. Also, there are approximately 9,000 offenders with interlock devices installed in their vehicles at the present time.

Localities Particularly Affected. The regulations apply throughout the Commonwealth.

Projected Impact on Employment. The proposal to require installation of cameras is expected to increase the demand for technician labor since installations will likely require more time. The proposed certification requirement may reduce the technician labor supply as they will be required to pass a certification test. The combined effect of these changes on employment is indeterminate.

Effects on the Use and Value of Private Property. Permission to charge for some services that were not allowed before, increased fees for more complex installations, and allowing wet bath technology will likely increase provider revenues and have a positive impact on their asset values. On the other hand, increase in the needed working capital and labor demand to install cameras and the proposed certification fee for second and subsequent tests will add to the overall compliance costs and may offset some of the expected positive impact.

Small Businesses: Costs and Other Effects. The main effect of the proposed changes will be on the four contracted ignition interlock providers. According to VASAP, all four providers are large corporations and have operations in other states or even in other countries. Thus, they may not be considered as small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Under the current regulations and policy, VASAP does not allow service providers to subcontract with third parties. Every service provider is required to maintain direct control and ownership of service centers within a 50-mile radius of every residence in the Commonwealth. They are permitted to rent service bay space from existing gas stations, automobile repair shops, etc, but are required to employ their own personnel. According to one vendor, "this policy- the only one of two of its kind in the country- is unduly burdensome on the service providers, who bear the cost of directly leasing or owning space throughout the Commonwealth in order to provide this service."²

VASAP is concerned that subcontracting will compromise the integrity of the ignition interlock program. VASAP believes that protecting the chain of evidence for court testimony and evidentiary procedures would be at risk. Through consultation with interlock program administrators in other states, VASAP states that it is aware of many instances of problems associated with subcontracting. However, service providers operate under contract and have an obligation to comply with regulatory requirements. Thus, the risks seem unlikely to increase under a contractual operation of service centers, as compared to the direct operation by the service providers.

While the hesitation of VASAP is understandable, its stand on this issue disregards provider cost concerns. Also, the fact that all fees are regulated by VASAP puts service providers at a very precarious situation because they do not have the ability to change their prices in response to changing costs.

It should be noted that subcontracting is a very common business practice across many industries including construction, manufacturing, health care, information technology, even defense, national security, and aerospace. In today's economy, very complex tasks are accomplished through subcontracting. Undoubtedly, in each case there are some concerns that need to be addressed in the subcontracting process. Given the spread of subcontracting in the nation and the fact that many complex and sensitive tasks in the presence of some serious concerns such as national security are regularly achieved by subcontracting, it is difficult to assume that the ignition interlock regulations cannot be effectively administered if service providers are allowed to subcontract.

In addition, with the proposed new certification requirement VASAP will ensure that the technicians and state directors are competent. The certification will directly measure the knowledge and skills of each technician. Upon a violation, VASAP can revoke, suspend, or terminate an individual's certification. So, there are safeguards in place to make sure the technicians are competent to provide the service and if they fail in performing their duties, a corrective action can be taken. Since the competency of individual technicians and their accountability are addressed in the regulations, it is difficult to reach the conclusion that allowing the service providers to subcontract with certified technicians will somehow compromise the integrity of the Virginia ignition interlock program.

If subcontracting is allowed in performance of interlock services, the providers will have much more flexibility and will likely have opportunities to reduce their costs and improve access to their services in a significant way. Some of the cost savings will likely be passed on to their customers in an effort to promote their products.

In short, there seems to be a potent opportunity to reduce regulatory compliance costs without compromising the integrity of the Virginia ignition interlock program by allowing providers to subcontract with third parties.

Real Estate Development Costs. The proposed amendments are unlikely to affect real estate development costs.

Legal Mandate.

General: 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 Code of Virginia and Executive Order Number 17 (2014). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed 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.

Small Businesses: If the proposed regulation will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Additionally, pursuant to § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

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¹Of the $80 monitoring fee, $20 goes to local and state ASAP offices.

²See Agency Background Document, Form: TH-02, page 6.

Agency's Response to Economic Impact Analysis: In response to the Department of Planning and Budget's suggestion that subcontracting ignition interlock services in Virginia would be a viable alternative to current practice, the Commission on VASAP maintains that subcontracting would create challenges that would adversely impact both the effectiveness and integrity of the ignition interlock program in the Commonwealth as well as potentially jeopardize public safety.

VASAP receives periodic requests from the operators of service stations, towing services, audio repair shops, etc. who are seeking to increase revenues by becoming ignition interlock installers. Since the installation of ignition interlock devices would likely represent a small fraction of a subcontractor's business, there is concern that subcontractors would lack long-term investment in the program and would be less motivated to adhere to the strict legal and regulatory requirements of the program. Since subcontractors would not be directly accountable to the Commission on VASAP, correcting performance problems would take longer and be more complicated. For example, if a subcontractor commits an illegal or unethical act, who is liable: VASAP, the interlock vendor, the subcontractor business, or the employee?

While ignition interlock installations were simple in the past, and could arguably be performed by most any garage technician with proper training, modern vehicles have become very complex. It takes considerable experience (often months) to learn how to properly install ignition interlocks on hybrid vehicles and cars with push button starters in particular. Virginia's requirement that the ignition interlock be connected to activate the vehicle's lights and horn (a requirement not found in all states) also complicates the process. It is believed that subcontractors would typically lack the in-depth knowledge of the product and service to ensure quality work on a consistent basis. During the learning curve of the current vendors, several cars were damaged by installers who did not yet possess the knowledge to properly install the devices. This resulted in the vendors having to pay offenders for expensive repairs to their vehicles. Installing ignition interlock systems on modern vehicles requires a skill set that is best performed by employees who specialize in the service. It is believed that the number of improper installations would increase if there was a reliance on subcontractors to perform this work. Even though ignition interlock installers may be private businesses, offenders do not disassociate the interlock providers from the probationary process; thus, improper installations reflect unfavorably on VASAP and the Commonwealth of Virginia.

The Commonwealth of Virginia's ignition interlock program differs from those of many other states since probationary oversight, education, and treatment are tied to the interlock program. In some states, ignition interlocks are simply installed for a given period, and then no subsequent monitoring occurs. Research has shown that ignition interlocks work very well at preventing DUI offenses, but recidivism typically continues after the devices are removed, unless the interlock requirement is coupled with education and treatment. All interlocks in Virginia are calibrated every 30 days. The data that are downloaded during each calibration are carefully monitored by ASAP case managers to ensure there are no violations. The presence of violations may result in a return to court for noncompliance and increased treatment. Since many ASAP offenders are actively involved in treatment, federal confidentiality guidelines apply. Information about ASAP offenders may not be released without the written consent of the clients. Subcontracting would expose confidential information to a greater number of employees, especially since the turnover rate of employees may be higher at small businesses. The storing and security of confidential paperwork would be an issue as well. ASAP offenders would be comingled with customers receiving other services such as having stereos installed. Since ASAP offenders need to be trained on how to use the ignition interlock at the installation site, and have to watch an informational video, it would be difficult to protect the privacy of these probationers. Space for private viewing may be limited or nonexistent at many small subcontractor sites.

Subcontracting would also necessitate an increase of staff for the Commission on VASAP. VASAP regularly inspects all ignition interlock installation stations in the Commonwealth for compliance with state regulations. Subcontracting would likely result in more inspections and more discrepancies, since various subcontractors, as well as their employees, would be more likely to come and go. Prohibiting subcontracting provides stability to the state ignition interlock program.

Permitting subcontracting would result in the loss of employment for the current 60-70 ignition interlock employees in the Commonwealth. Since subcontractors would use existing employees at their businesses to perform ignition interlock work, the services of these 60-70, taxpaying residents would no longer be required.

The certification process for ignition interlock employees proposed by VASAP in the regulations would ensure that technicians possess only a basic understanding of the laws and regulations. It is anticipated that noncompliance with regulations would increase considerably if subcontracting were allowed. Even with the ability to revoke the certification of subcontractors, doing so would be a time consuming process, and it would reflect unfavorably on the ignition interlock program. Decertification or suspension of a subcontractor could leave a service provider void in a particular geographical area.

While VASAP recognizes that subcontracting is used effectively in many environments, there are some functions that are best performed by the government with proper regulatory oversight in place. The Commonwealth of Virginia presently has a very effective ignition interlock program that is recognized as one of the model programs in the country that other states seek to emulate. It is our belief that the significant policy change of permitting the subcontracting of ignition interlock services would compromise the integrity of the interlock program as well as public safety in Virginia.

Summary:

The proposed amendments (i) require all ignition interlocks to be equipped with cameras; (ii) require state directors and service technicians of all ignition interlock vendors to pass a written test regarding applicable state laws and regulations prior to being permitted to install ignition interlock devices; (iii) incorporate existing fees, with certain amendments, and establish new fees; (iv) allow the use of wet bath simulators in the calibration of ignition interlock devices; and (v) require sooner but less frequent rolling tests and increase the length of time for motorists to complete a rolling retest when prompted.

24VAC35-60-10. Purpose. (Repealed.)

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).

"Applicant" means a service provider technician or state director who applies for a Virginia Ignition Interlock Certification Letter from the commission.

"ASAP" means a local alcohol safety action program.

"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 that is 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) or its designee.

"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 that 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.

"Executive Finance Committee" means the advisory subcommittee of the commission composed of the Executive Director of the Commission on Virginia Alcohol Safety Program, two commission members, and such other person as the commission designates.

"Fail point" means the point level at which the breath alcohol level of 0.02% is met concentration, as established in § 18.2-270.1 of the Code of Virginia, is sufficient to prevent a motor vehicle equipped with an ignition interlock device from starting.

"Free restart" means the ability to start the engine again within a preset two-minute 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 reaches 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 be 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 that assembles the product and distributes it to service providers.

"Motor vehicle" means every a motor vehicle as defined in §§ 18.2-266 and 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 that prevents a motor vehicle will not start from starting 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 that 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 reaches 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 an 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.

"State director" means a service provider employee who provides oversight of the service provider's ignition interlock operations in the Commonwealth of Virginia.

"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 an 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.

"Technician" means a service provider employee who installs, calibrates, or removes interlock devices in the Commonwealth of Virginia.

"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 that reaches the fail point.

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

"Violation" means an event, such as a breath test indicating a BAC at or above reaching 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 reaching the fail point,; altering, concealing, hiding, or attempting to hide one's identity from the ignition interlock system's camera while providing a breath sample; or tampering, which tampering, that breaches the guidelines for use of the interlock device.

"Violation reset" means a feature of the ignition interlock device in which that activates a service reminder is activated due to a violation or failure to report for calibration within 35 days of the installation or previous calibration.

"Virginia Ignition Interlock Certification Exam" means an exam administered by the commission to service provider state directors and technicians that must be successfully completed and submitted as a component of an application for a "Virginia Ignition Interlock Certification Letter."

"Virginia Ignition Interlock Certification Letter" means a letter issued by the commission to a service provider technician or state director authorizing the technician or state director to perform ignition interlock services in the Commonwealth of Virginia.

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

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

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 (i.e., 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 A service provider seeking to contract with the commission shall submit:

1. Evidence of a strong background Submit evidence demonstrating successful experience in the development and maintenance of a statewide an ignition interlock service program and evidence of operational programs in Virginia, other states, or other countries. The service provider must shall be dedicated to the installation and maintenance of ignition interlock devices and must supply.

2. Supply and train staff and service center supervisors to assure ensure good customer service and compliance with all contract requirements. Personnel hired to install, calibrate, or inspect ignition interlock devices may not have ever been convicted of any 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.

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 must be able to ensure that technicians are trained and available to testify in court if required for noncompliance hearings. shall provide 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.

d. The service provider shall identify all key personnel who will be providing ignition interlock services for the Commonwealth of Virginia with a means of identifying these personnel 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 serving 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.

2. A 3. Submit a description of the service provider's present or planned provisions plan to be approved by the commission, for distribution of the device in all locations of the Commonwealth of Virginia including all locations in the state where the device may be installed, serviced, repaired, calibrated, inspected, and monitored ignition interlock services will be performed. Each facility 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. Interlock service facilities shall be approved inspected and certified by the Commission on VASAP commission prior to its use and meet the following criteria: 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. Must pay an annual review fee to the Commission on VASAP.

b. Must comply 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;

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

d. Must maintain 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 permissible if approved by the commission and, if approved, 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 30 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 the new 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.

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 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 any an act or omission by the manufacturer or their its service provider relating to the installation, service, repair, use, and/or 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;

4. Documentation 5. Submit documentation that the service provider will provide a full-time state ignition interlock coordinator director who will work exclusively with the Virginia interlock program and reside in the Richmond, Virginia area program. Among other duties, the coordinator state ignition interlock director will be expected to (i) respond promptly to any problems in the field,; (ii) upon request of the commission testify in court upon request, and before applicable courts, the General Assembly of Virginia, or the commission; (iii) assist and provide training to VASAP staff 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. 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 60 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 (Pub. L. No. 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.

D. Provided that all vendor and device certification requirements are met, the commission shall 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 Commission on VASAP will establish by contract the following additional fees to shall be paid by the service provider. to the commission:

1. Annual A $250 annual contract review fee to the Commission on VASAP.;

2. Annual A $75 annual review fee for each ignition interlock service center to the Commission on VASAP.;

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

3. Monthly 4. A $10 monthly ignition interlock administrative fee to the Commission on VASAP for each offender with an ignition interlock installed until the device is removed 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.

4. Monthly C. A $10 monthly ignition interlock administrative fee shall be paid by the service provider directly to the local servicing ASAP for each offender with an ignition interlock device installed until the device is removed 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. 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 or a motor vehicle with a push button starter;

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

4. $0 for an ignition interlock removal;

5. $80 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, loss, or 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, loss, or 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. In the event of changes to the Code of Virginia 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%.

C. F. 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. Cancellation, suspension, and Suspension or revocation of manufacturers, service providers, and ignition interlock devices ignition interlock device or service facility certification.

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

9. When a service provider fails to fully correct an identified ignition interlock facility noncompliance issue within the time frame 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 such cancellation, a suspension, or revocation of an ignition interlock device or service facility certification occurs, the manufacturer or service provider may request (within, within 15 days of notification) notification, a hearing with the commission to contest the decision. Should the cancellation, suspension, or a revocation of certification be upheld, the manufacturer or service provider (i) shall remain be responsible for removal of all devices from customers' motor vehicles, all vehicles in which interlocks are installed and serviced by the service provider that is subject to the revocation, and (ii) will bear the costs associated with the required removal and installation of a new approved device devices. In addition, the manufacturer or service provider 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. Service providers or manufacturers that are suspended 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 from all vehicles in which interlocks are 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 must shall be approved by the commission. The commission shall maintain a list of approved ignition interlock devices.

B. Each 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 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 most current model specifications published in the Federal Register by the National Highway Traffic Safety Administration (57 FR 11772-11787 (April 7, 1992)), 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 and that the ignition interlock device model for which certification is being sought meets or exceeds those specifications. 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. All Except where otherwise required in this chapter, all ignition interlock devices will be required to shall meet the model specifications for Breath Alcohol Ignition Interlock Devices (BAIID) as set forth in the most recent current model specifications published in the Federal Register by the National Highway Traffic Safety Administration (NHTSA) and operate reliably over the range of motor vehicle environments or motor vehicle manufacturing standards. At a minimum, the following specifications will 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 an electrochemical fuel cell that reacts to and measures ethanol, minimizing positive results from any other substance substances.

4. The ignition interlock device shall indicate when a sufficient sample of breath 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 on a commission-approved form. A medical waiver of the ignition interlock requirement shall only be approved upon authorization of the court of jurisdiction and the commission.

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

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 reaches 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. 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. 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 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 three days prior to the appointment. Should the offender fail to appear, the device shall lock out lockout 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 a manner as to minimize opportunities to be tampered with, altered, bypassed, or circumvented for tampering, alteration, bypass, or circumvention. The ignition interlock device shall not spontaneously bypass the ignition system nor shall it be able to be made operational by any a mechanical means of providing air to simulate alveolar breath. Any bogus 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 any actual or attempted tampering, alteration, bypass, or circumvention.

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

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 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.

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 starter relay after the successful completion of a breath alcohol test.

2. The device shall allow an operator to take up to two minutes to elapse between the time the ignition is enabled and the start of the motor vehicle after the starter relay is enabled to start the engine.

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 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 is at or above still reaches the fail point on the second first retest, the machine shall lock out lockout for an additional 15 10 minutes and shall do so thereafter for each subsequent failed retest 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 will 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 10 to 20 five minutes after the start of the motor vehicle and randomly thereafter at least once every 20 45 to 40 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. The offender shall have six 15 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 A deep lung breath sample at or above the fail point or any 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, or 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 VASAP 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 must 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 will notify the ASAP. Once the ignition interlock has been installed, the service provider will 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 will 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 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 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. The name and policy number of their automobile insurance.;

3. The 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.;

4. 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

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, when applicable.

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

F. The service provider must 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 any a device until, and unless, the motor vehicle is approved following the inspection. A pre-inspection checklist of the vehicle at installation shall be completed and placed in the offender's file.

G. Each The 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 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 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 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 will shall be halted and the ASAP notified.

J. The manufacturer and/or or service provider must 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 service center technician that the ignition interlock device failed through no fault of the offender, in which offender. If this is the 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 commission through contract, and service providers will not be permitted to exceed the maximum fee established by the commission. No installation fees shall be collected from the user until services have been provided. 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 loss, theft, or damage. No installation fees shall be collected from the user until such services have been provided. 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 must shall 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 shall provide to the service provider a statement from every the licensed driver drivers 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. 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 must shall:

1. Provide service/monitoring service and monitoring of the ignition interlock device every 30 days; the offender will be given a five-day grace period to have the device inspected. 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. Use a mercury-in-glass thermometer or digital thermometer for wet bath simulators. 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 prior to every 16th test;

7. Store dry gas alcohol standard tanks in an environment where the temperature range remains between 10°C and 40°C. 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 facilities using a dry gas standard shall possess an elevation chart used to determine the proper reference value for the elevation where the gas standard is being used and 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;

3. 8. 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. 9. Record the odometer reading of the motor vehicle in which the ignition interlock device is installed.;

5. 10. Check the ignition interlock device and wiring for signs of circumvention or tampering, and electronically report to the local ASAP any violation violations to ASAP within 24 hours of servicing. the required time frame established by the commission;

6. 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;

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 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 damage to the device as a result of mistreatment by the offender or improper use, 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 tests;

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

3. The breath alcohol level of each test all tests; and

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

5. A photo of all persons submitting a breath test sample for analysis by the ignition interlock device; and

6. A reference photo of the offender.

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 commission through contract 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 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 when 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 or electronic authorization from the ASAP. This requirement also applies to offenders with a Virginia ignition interlock requirement who are receiving interlock services from a service provider in another state.

B. Offenders may not have their ignition interlock device removed or replaced by another manufacturer without written or electronic authorization from the ASAP commission. Whenever removal of an ignition interlock device was approved by the commission for the purpose of changing service providers and the authorized removal was a result of a determination that the initial service provider failed to provide a level of service meeting contract requirements, the ignition interlock regulations, or the Code of Virginia, the original service provider shall bear the costs associated with installation of the device by the new service provider.

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. C. Once the interlock has been removed, the service provider will send an authorized removal report to the ASAP via fax, email, or online database, a method established by the commission 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. D. 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 shall be restored to their original, preinstallation condition and removed in such a manner so as not to impair the continued safe operation of the vehicle. All severed wires must shall be permanently reconnected (e.g., soldered) and properly insulated with heat shrink tubing or its equivalent. A post-inspection checklist of the vehicle shall be completed after removal of the device, documenting that the vehicle or vehicles did or did not suffer damage due to interlock services provided by the service provider. A copy of the post-inspection checklist shall be placed in the offender's file.

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

F. No offender or person accompanying the offender shall be permitted to observe the 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 Upon request, 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 periods when the service center is unattended by a service provider employee.

C. Within 24 hours of After installing an interlock, the service provider will 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 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 After performing a monitoring/calibration monitoring and calibration check, the service provider shall submit to the local 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/calibration. 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.;

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

8. Any data 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 Attempts to alter, tamper, circumvent, bypass, or otherwise remove the device.;

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

11. Any offender Offender concerns.;

12. All charges Charges incurred for the monitoring visit.;

13. Date of next scheduled monitoring visit.;

14. A photo of all persons who have attempted to provide a breath test sample on the ignition interlock device; and

15. A reference photo of the offender.

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

1. All installations Installations during the period covered.;

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

3. All datalogger Datalogger information from each all ignition interlock device. devices;

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

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

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 the equipment is not already present at the commission office or local the ASAP.

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

24VAC35-60-120. General service provider requirements.

Interlock service providers that are approved to perform ignition interlock services in the Commonwealth of Virginia shall:

1. Abide by all commission memorandums, directives, contract terms, and regulations pertaining to the statewide ignition interlock program unless prohibited by state law.

2. Resolve offender, court, DMV, ASAP, commission, and other stakeholder complaints as directed by the commission.

3. Install all ASAP authorized ignition interlock installations within the time parameters set forth by the commission. In situations where an interlock service facility or facilities become inoperable due to a large scale weather event or some other verified unforeseen circumstances, the service provider shall contact the commission within 24 hours with an action plan to mitigate the impact to customer service.

4. Resolve ignition interlock service facility compliance issues as directed by the commission.

5. Obtain approval from the commission before disseminating any training or advertising materials used in association with the Virginia interlock program.

6. Make modifications to the service provider company website that is used to review monthly calibration reports, upon reasonable request by the commission. Reasonable requests include, but are not limited to, changes due to language that is confusing, misleading, offensive, or inaccurate; changes required due to updated technology; changes to the Code of Virginia or the ignition interlock regulations; changes in workload; or changes in product enhancements.

7. Assume full liability for action taken or not taken by an ASAP or the commission due to an inaccurate or misleading report, whether electronic or hard copy, provided by the service provider.

8. Be accountable for Virginia offenders with ignition interlock devices installed by its company in another state and shall ensure that all Virginia interlock processes, regulations, request for proposal terms, contract terms, and commission requirements are met unless prohibited by state law.

9. Notify the commission within 15 days of disciplinary action received from a state where the service provider conducts or has conducted ignition interlock business. This notification shall include the reason for the disciplinary action. This requirement applies regardless of the existence of an appeal.

10. Provide information technology assistance and training, per reasonable request, to the commission when requested.

11. Report all changes to the ignition interlock device software or firmware, whether temporary or permanent, to the commission within 30 days of release in the Commonwealth of Virginia.

12. Not modify or remove an interlock device that is the subject of an investigation by the commission.

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. 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, 2015. The completed application for applicants 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 will 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 will be allowed a second opportunity to successfully complete the exam. Applicants who fail to successfully complete the state certification exam on the second attempt will 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 will 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 nterlock services in the Commonwealth of Virginia.

C. The commission may 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 convicted of a felony;

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

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

4. The technician or state director fails 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 to demonstrate possession of the knowledge required to perform ignition interlock services in the Commonwealth of Virginia.

A service provider technician or state director whose Virginia Ignition Interlock Certification Letter has been suspended or revoked may request, within 15 days of notification, a hearing with the commission to contest the decision. 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. 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 will 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 is to 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.

NOTICE: The following forms used in administering the regulation were filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name of a form with a hyperlink to access it. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.

FORMS (24VAC35-60)

VASAP Breath Reduction Form (rev. 9/2015)

VASAP Internet Service Provider Applicant Form (rev. 9/2015)

VA.R. Doc. No. R14-3946; Filed September 2, 2015, 11:48 a.m.