9/17/2021 1:13 pm Date / Time filed with the Register of Regulations | VA.R. Document Number: R____-______ |
Virginia Register Publication Information
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Transmittal Sheet: Response to Petition for Rulemaking
Initial Agency Notice
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Agency Decision
Promulgating Board: | Commission on the Virginia Alcohol Safety Action Program |
Regulatory Coordinator: | Richard Foy (804)786-5895 Richard.Foy@vasap.virginia.gov |
Agency Contact: | Richard L. Foy Field Services Specialist (804)786-5895 Richard.Foy@vasap.virginia.gov |
Contact Address: | Commission on the Virginia Alcohol Safety Action Program 1111 E. Main St. Suite 801 Richmond, VA 23219 |
Chapter Affected: | |
24 vac 35 - 30: | VASAP Case Management Policy and Procedure Manual |
Statutory Authority: |
State: Federal: |
Date Petition Received | 04/21/2021 |
Petitioner | Cynthia Hites |
I, Cynthia Hites, a citizen of the Commonwealth of Virginia, pursuant to Virginia
Code ยง2.2-4007, do humbly submit this petition.
For years VASAP has been flying blind regarding the number of false positive interlock
readings being suffered by their clients.
Unexplained instances of failed interlock readings have classically been attributed
to a glitch, or malfunction in an individual device, instead of VASAP admitting the
issue is systemic in nature.
Utilizing the electrochemical fuel cell as sensor technology for interlock devices
means a very high number of failed readings are expected due to sources other than
consumed ethanol (C2H6O). ASAP has chosen to adopt this vastly inferior technology
and has also grossly misapplied it.
In order to evaluate the full scope of effects wrought by using the fuel cell, it
is now imperative the VASAP agency strive to quantify how this choice impacts the
efficacy of its Interlock Program.
Certain metrics need to be consistently and continually obtained for review in order
to properly evaluate the VASAP IID program.
We need to know how may IIDs are installed, and how many failed readings (>.02) occur
per device. Then, out of those fails, how many are deemed \\\\"violations,\\\\" and
of those \\\\"violations\\\\" the number of revocation hearings set, the number of
clients denied due process by having their interlock time altered by ASAP, and the
number of subsequent convictions.
It was estimated during a recent quarterly VASAP meeting that there are 200 failed
IID readings per day. If this holds true, and if there are 7000 interlocks installed
at any given time, then statistically, after 35 days, every single client has one
failed reading; after 70 days that jumps to two failed readings per client, and these
numbers are unacceptable.
A high number of failed interlock readings due to high BrAc would clearly be indicative
of a failed program. Either the IID machines are detecting non-consumed ethanol at
an unacceptably high rate, indicating systemic failure, or despite their installation,
people in large numbers are deciding to attempt drunk driving, indicating systemic
failure.
For VASAP to continue to neglect the obscenely high number of false positives and
operate as if interlocks were reasonably accurate, would be irresponsible and highly
suspect.
VASAP owes the citizens of Virginia a level of interlock accountability that, to this
date, has not been realized. Without obtaining this empirical data, VASAP can continue
to claim program integrity and assert purely anecdotal evidence that the interlock
devices are accurate.
I would be very willing to wager that after the number of Virginia\\\\'s false positives
is ascertained, the interlock devices will lose all of their assumed credibility.
Employing any language the agency sees fit, I propose that the following amendment
of interlock data acquisition be made to either VA code section 24VAC35-30-150, included
in the annual VASAP Executive Summary, and/or included in an otherwise appropriate
agency document, to be publicly disseminated on a yearly basis.
To be broken down by each individual ASAP, and by case worker, we need to know:
1) Number of IIDs installed
2) Number of failed IID readings per machine (per client).
Of all the interlock fails, further disseminated by:
(A) Number of men, and number of women
(B) Number of fails occurring upon rolling retest
(C) Number of those clients with readings deemed \\\\"violations.\\\\"
a) Number of clients with \\\\"violations\\\\" being given the benefit
of a revocation hearing.
b) Number of clients with \\\\"violations\\\\" being given additional
interlock time without being afforded due process.
(D) Number of these revocation hearings resulting in conviction.
Keeping track of these statistics will serve a vital role in affirming program integrity.
Most humbly,
Cynthia Hites
Agency Plan
This petition will be considered by the Commission on VASAP at its quarterly meeting
on September 17, 2021.
Publication Date | 05/10/2021 (comment period will also begin on this date) |
Comment End Date | 09/10/2021 |
Take no action
Agency Response Date | 09/17/2021 |
The petitioner requested that 24VAC35-30-150 be amended to require the Commission
on VASAP to collect an extensive variety of ignition interlock data. The request
included an exhaustive list of data currently uncollected. The overwhelming amount
of data requested by the petitioner would require the use of extensive resources from
multiple agencies to include the Commission on VASAP, local ASAP offices, the Virginia
Department of Motor Vehicles and the courts. This will require the use of additional
state tax dollars, and extensive work by agencies that are already understaffed.
Accordingly, the petition was denied.