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Commission on the Virginia Alcohol Safety Action Program
Petition 291
Petition Information
Petition Title Petition to Amend 24VAC35-60-50
Date Filed 2/15/2019    [Transmittal Sheet]
Petitioner Cynthia Ellen Hites 
Petitioner's Request

I, Cynthia Ellen Hites, as a citizen of the Commonwealth of Virginia, pursuant to Virginia Code §2.2-4007, do humbly submit this petition for the following amendment of Virginia Administrative Code 24VAC-35-60-50.

Currently, VA statute 24VAC-35-60-50, D, 9 reads:

"D.  Service providers may charge offenders for ignition interlock services at rates up to, but not to exceed, the following:... 9. $50 for violation resets, when the violation is determined to be the fault of the offender."

As the law exists, in the event of "mouth alcohol," machine malfunction, or one of the host of non-ethanol readings expected by interlock companies for compounds in personal hygiene products, ignition interlock providers can withhold citizens' ability to utilize their personal vehicle until they provide the interlock company $50.  This is tantamount to extortion.

Until all evidence can be considered in a court of law, a violation cannot be determined.  Due to this fact, a violation reset fee cannot be collected until a "violation" can be determined by a judge.

I propose that 24VAC-35-60-50, within section D, #9, which allows a $50 reset fee to be collected by ignition interlock providers, be removed in its entirety.

Currently, ASAP case managers are precluded from considering or accepting any evidence aside from the devices' failed readings.  Employing circular logic, Section IV of the VASAP Process and Procedures Manual states:  "Under no circumstances shall the ASAP accept any other means of clearing a failing BAC registered on an interlock device other than the device itself.  This includes, but is not limited to preliminary breath test machines, urine screens, etc..."

When a petition was filed in 2018 to allow case managers to consider additional evidence when citing a violation, VASAP's Richard Foy responded with the following statements:

"The petitioner is suggesting that ASAP case managers...accept and consider additional evidence submitted by the client to include such things as urine screens, blood tests, preliminary breath tests, and police or other eyewitness testimony.  All of that is to be considered prior to determining whether an ignition interlock violation occurred.  Doing this would raise some questions and concerns.  That's something the court would consider, and VASAP is not going to be comfortable in considering those results because it tends to put us in a judicial role.  We believe any additional information...would be best presented to the court in a non-compliance hearing...".

Ignition interlock machines use inherently non-ethanol specific electrochemical fuel cell technology.  This means an ethanol violation may be suspected by a case manager, but all evidence must be considered to determine an ethanol violation, and only a judge can make that determination upon preponderance of the evidence.

Commissioners, please amend this statute and remove #9 from 24VAC-35-60-50, section D.  It's wholly unfair to charge Virginians a "violation" reset fee prior to conviction.

Very Sincerely,

Cynthia Hites

 
Agency's Plan

The Commission on VASAP will consider this petition at its quarterly meeting on September 13, 2019.

 
Comment Period Ended 6/28/2019
1 comments
Agency Decision Pending    

Contact Information
Name / Title: Richard Foy  / Commission on Virginia Alcohol Safety Action Progr
Address: Commission on VASAP
701 E. Franklin St., Ste. 1110
Richmond, 23219
Email Address: rfoy@vasap.virginia.gov
Telephone: (804)786-5895    FAX: (804)786-6286    TDD: ()-