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Richmond, Virginia DUI Lawyer Critical of Ignition Interlock Program’s Lack of Transparency in Providing Relevant Information to Alleged Violators and DMV Policy Rewarding Glitchy Machines

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By Bob Battle and Bill Sullivan

         Ignition Interlock still isn’t ready for prime time according to Virginia DUI attorney Bob Battle. The Mothers Against Drunk Drivers (“MADD”) released a report this month claiming that nationwide statistics show that 1.77 million drivers had blown a .08 BAC or higher and were prevented from driving by their ignition interlock device. The report does not mention the length of time over which these numbers were obtained. The report also trots out as “facts” some numbers that MADD has cited for years that were just made up such as the whopper that “on average, a drunk driver has driven drunk 80 times before a first arrest.” The statistics for Virginia in the MADD report state that the ignition interlock has prevented 102,577 cars from starting because it detected some alcohol. Of those, only 10,067 registered a .08 or higher. Thus, over 90% of those stranded were legally and factually sober! Legendary English scholar and jurist William Blackstone famously said, “It is better that ten guilty persons escape than that one innocent suffer” and Benjamin Franklin went even further, stating “it is better 100 guilty Persons should escape than that one innocent Person should suffer.” However, the Virginia stats show 9 sober people stranded for every 1 person registering at least a .08.

         MADD's founder, Candace Lightner  left the group in 1985. In 2002, as reported by the Washington Times, Lightner stated that MADD "has become far more neo-prohibitionist than I had ever wanted or envisioned … I didn't start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving." The simple question that Bob Battle poses is that if the point of ignition interlock is to prevent drunk driving, why aren’t the machines set at a .08 BAC instead of being set to shut off cars when the driver registers a de minimus BAC including BAC’s that the General Assemby has ruled to be presumptively sober?

Reviewing Virginia’s Troubled Ignition Interlock Laws

   Though mandated by the Virginia General Assembly for all DUI convictions on July 1, 2012, such devices are faulty, said Battle.

   “Too many times, I’ve seen clients penalized by these devices registering false positives, prohibiting them from driving when they have had absolutely nothing to drink,” he said. “People can’t drive to work, doctor’s appointments or their kids’ functions because these devices are defective.”

   In 2012, anti-drunk driving groups successfully lobbied the Virginia General Assembly, which subsequently passed legislation mandating interlock ignition devices be installed on the vehicle of any motorist convicted of a DUI, regardless of their BAC reading. Before 2012, only convicted offenders with a BAC reading of 0.15 or above were forced to have devices installed.

      Battle claims lobbying groups pressured legislators in a Presidential election year, knowing any such state delegate or senator voting against the measure would be seen by voters as “soft” on drunk driving.

   “I’m totally against drunk driving,” Battle said, “but I’m also against having ineffective devices mandatory in Virginia which end up punishing the innocent. This leads to lost wages and unnecessary legal fees all because some machine is defective.”

   In a June, 2012 Richmond Times-Dispatch article, Battle said the new law will drive up costs for anyone convicted of DUI. Before the law’s passage, Battle estimated a plaintiff’s legal costs were roughly $8,000 for attorney’s fees, court costs, fines, increased vehicle insurance premiums and the fee to enter the VASAP program.

   "I think the new law will spike costs to $10,000-plus," said Battle, who co-wrote "Virginia DUI Defense: The Law & Practice," a book on how to defend people charged with DUI.

   Fairfax County Public Defender Todd Petit, quoted in an April 2012 Washington Post article, shared Battle’s sentiment.

    “I think this is one of those bills you want to believe is good and will help everyone,” Petit said. “It’s going to unfairly impact clients who can’t afford interlock, as opposed to a more wealthy person who can pay for it and continue to drive to work. There’s going to be a portion of the community who are going to choose to drive without licenses.”

  In the same article, Delegate David Albo (R-Fairfax) said installation of the interlocks is problematic.

  “The implementation is going to be much more difficult than predicted,” he said. “People had to wait a long time for their interlocks when we first did this.”

So, have the predictions of Bob Battle become reality? Sadly, the answer is yes and the ignition interlock laws have become a multi-million dollar cash cow for the Commonwealth and the interlock companies.

A History of Interlock Problems Since Passage of this Law

   The Virginia Alcohol Safety Action Program (VASAP) approves all vendors of interlock ignition devices in Virginia. Minutes from three commission meetings in 2013 revealed chronic problems with vendors licensed in Virginia.

Smart Start Probation

   In June 2013, “Smart Start” was put on probation after 10 complaints from faulty equipment to installation delays [sometimes up to one week] in the case of convicted DUI offenders in Virginia.

   Specific equipment breakdowns included “faulty data loggers, head units and curly cords which resulted in lost calibration data and/or battery failure had “drastically decreased” since Smart Start had released its new firmware on January 28, 2013, according to commission minutes. Since VASAP’s last meeting, three missing data cases have been verified and in each instance, Smart Start had not upgraded to this new firmware.

   The commission stated Smart Start had “come into compliance” with all other issues related to technician professionalism, customer service and service facility requirements.

   Smart Start CEO Jim Ballard later apologized to VASAP.

LifeSafer removed from list in other states for multiple issues and suspended in Virginia- twice!

   In another instance, Battle noted another interlock ignition company had been suspended by the commission.

   From the minutes of a VASAP meeting in September of 2013, it was revealed that LifeSafer had been removed from the vendor list in the Commonwealth of Pennsylvania. Also, Commission member Susan Marchon said VASAP was advised that Life Safer could face suspension in another state.

   Christopher Morris, VASAP special programs coordinator, reported that Life Safer had been suspended in Pennsylvania for two months in 2013 for “failure to gather permission to reduce breath reductions.”  Morris added that motorists also faced installation delays with Life Safer, but that issue had improved.

   LifeSafer appeared before VASAP in December 2012, to document its suspensions [totaling seven months for two violations] in Pennsylvania. Michael Shultis, Life Safer regional manager said the first suspension was a “reporting” issue and the second was a snag in digital processing where vendors have to conduct online vehicle title searches through a Division of Motor Vehicle website. Shultis admitted his company violated Pennsylvania law in continuing to install ignition interlocks despite a breakdown in online reporting.

   Furthermore, VASAP had concerns over installations – both with wait times and with vehicular damage -- from Life Safer mechanics. VASAP’s Morris claimed installation wait times had decreased since being cited by his commission. In one instance, a motorist with LifeSafer’s interlock ignition device had his ignition shut down while operative in route to Delaware. The same motorist also had an odometer problem that cost over $2,000 to repair. The LifeSafer mechanic later admitted he did not follow a pre-inspection checklist mandated my Virginia contract specifications.

   These problems resulted in the commission suspending LifeSafer from receiving installation referrals in Virginia for three months.

More Problems with LifeSafer in January 2015

         The Draft Notes posted on the VASAP website of the VASAP Commission’s Board Meeting on March 13, 2015, shows that LifeSafer has continued to have serious issues with its interlock devices. From the Draft Notes:

 “In January, 2015, LifeSafer had some equipment issues affecting the delivery of services to clients. There were issues with the time clock in their ignition interlock devices resulting in approximately 100 vehicles being disabled, in addition there was some delay in the resolution of this matter. Due to the delayed resolution of this issue, a decision was made by the commission to temporarily suspend LifeSafer’s ability to receive new installation authorizations. Mr. Christopher Morris, Special Programs Coordinator, elaborated on the suspension and other issues relating to LifeSafer. LifeSafer had an issue with the time clock in the device. In 1998, LifeSafer engineers dated the time clock to expire during 2017. The time clock ran out on January 2015, two years earlier than scheduled; therefore, clients could not start their vehicles for the reason that the ignition interlock device went into a permanent lockout status. The commission was notified that LifeSafer noticed this issue on January 5, 2015. LifeSafer reported the issue to the commission on January 6, 2015. As soon as the issue was discovered, both the commission and LifeSafer initiated action plans. LifeSafer contacted all of their clients in Virginia to determine the extent of the problem. Fortunately, it was determined that the time clock problem only affected 75-100 clients. The commission extended its office hours to field any calls that came in relating to the issue. There were a total of 10-15 related calls received at the commission office. The information of the 10- 15 clients was sent immediately to LifeSafer and the issues were corrected.

There was an issue after LifeSafer corrected the time clock in the device; some of their reports had a minimal number of calibration reports with unusual readings during the period from

January 5th-23rd, 2015. To resolve the issue, the ASAPs were advised to notify the commission of any reports containing BAC violations so that each could be addressed individually with

LifeSafer for accuracy. Mr. Morris stated that overall the commission received only four or five calibration reports with violations during that time period. Only one of the reports received had unusual readings, and LifeSafer corrected the report by conducting a data fix on February 7. As a result of these problems, the commission temporarily suspended LifeSafer. LifeSafer did not object to the suspension. The suspension was lifted after LifeSafer demonstrated that the

problems were resolved, and a period of several days passed without any new complaints being received. LifeSafer is no longer under suspension.

Mr. Morris presented the next issue relating to LifeSafer. An ASAP case manager issued a noncompliance letter to a client returning him to court for ignition interlock violations. The client

brought the letter to a LifeSafer technician. The client then advised the technician that the case manager needed clarification about a violation on the report. The technician believed the client and wrote an explanation of the interlock readings on the non-compliance report. The client did

not take the report back to the case manager; instead, he presented it directly to the court at his non-compliance hearing. Based on what the technician wrote on the letter the judge dismissed the case.

Mr. Morris informed the commission that the correct procedure would have been for the technician to contact the ASAP case manager to verify any information and never put anything in writing. The commission notified Mr. Scott Mason, LifeSafer’s state director regarding the issue. Mr. Mason stated that as a result a notice was distributed to all LifeSafer technicians throughout the state, reaffirming that providing the clients with a written statement is not allowed by VASAP regulations. Mr. Mason issued a follow up letter to all LifeSafer employees stating that if there are any issues in the future to contact him. He will contact the ASAP in question and provide clarification if needed. The final issue relating to LifeSafer that Mr. Morris presented was the communication between the commission and LifeSafer. LifeSafer encountered a situation between a technician and a client. However the commission was not notified of the situation. LifeSafer understands that whenever any situation occurs that could impact the integrity of Virginia’s ignition interlock program, the commission must be notified.”

Comment from Bob Battle-

         Wow, are you kidding me! Bad enough that the Notes reflect that the issue with the time clock which prevented the drivers from being able to start their car “only” affected 75 to 100 people! Let’s analyze  this situation. The issue was with the “time clock” so it is safe to assume that the glitch occurred when the clock hit midnight and affected the customers the first time they tried to start the car the next morning. These people are only allowed to drive on a Restricted basis which means for the most part they are on their way to or from work. Most of the time the employer will know that the person was convicted and will be looking to ensure that the person does not have any recurring alcohol problems. So, employee shows up late for work because his interlock system will not let him start his car. Does the boss believe him when he states he has not been drinking at all? But it gets worse. The second “problem” identified against LifeSafer should not be a problem at all. The machine malfunctioned, ASAP was notified and the innocent client got a Show Cause charge served upon him to show why he should not be held in contempt of court. Once again, the client must appear in court. So, he must inform his boss that he will miss yet another day of work to deal with these charges! The LifeSafer technician wrote a letter to the judge indicating that their machine had in fact malfunctioned. So the VASAP Commission notifies LifeSafer of this “issue” of violating their policy to “never put anything in writing.”  These same minutes reported that as of January 2015, 8,644 ignition interlock devices are in use in Virginia. (This number increased to 9,018 by July 2015!) The interlock companies  have now petitioned and succeeded in raising their monthly fees to  $75 per month per customer. An additional $20/month per customer goes to VASAP. So, if that July 2015 number were to remain consistent for the year, these companies are raking in over $676,000  per month and $8,116,200 per year! VASAP makes over $150,000 per month and slightly over $1.8 million per year. So, should they be required to provide the client a written statement? Absolutely- and they should be required to send a copy to defense counsel of record, the prosecutor’s office (it’s exculpatory information), and the judge.  There needs to be transparency. “Never put anything in writing” is not a statement that equates with “the integrity” of the interlock program, it has the exact opposite effect.

DMV Policy Rewards Interlock Companies for False Positives!

         The Virginia DMV has a policy independent of the court’s ruling that there must be 6 months with no failed tests before removal of the Ignition Interlock device. As has been stated above, there are all sorts of problems with these machines that result in false positives when the person has not been drinking. Thus, the customers must keep paying $95 per month until they have 6 months with no issues. This system is unfair and goes against the whole concept in this country of the presumption of innocence. The DMV should not be involved at all in adding any additional penalties. If a judge after a court hearing determines a violation by drinking alcohol, the judge has the power to put the person in jail and suspend their license or order that the interlock stay on the car for the entire year. That should be the sole remedy. 

Bob Battle
100% of my practice is devoted to serious traffic defense and criminal litigation in state and federal courts
1 Comments:
I have a Lifesafer interlock on my car and when the old unit was replaced on 8/10/16 with a new unit with a camera. Since that time I have had nothing but issues. The unit is testing me every 3 minutes and I have at least one false positive every week in which I have to go in and pay $52.65 for a reset. Today I went to thier Oak Lake Blvd to have the unit reset and I didn't get a block away before I had another false positive. I had to go back 3 times and was told to reschedule another appointment for Wednesday when my car would go into permanent lock out. I was there from 3:15 to 7:30 p.m. and when I called to schedule a follow up reset was told I would have to pay another fee. I have already paid over $200 this month and I can't work until this situation is resolved. I'm a realtor and it would be a real trick to explain why my car horn and lights keep going off every time I have a false positive with the unit. I have tried in several occasions to get someone in the VA office to call me but they have neglected to do so. Any advise? Can we petition to have the unit removed?
Posted by SYLVIA Savino on September 16, 2016 at 10:29 PM

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