A Problem with the Ignition Interlock Legislation in New York State

 

Pending legislation in the New York State Senate and Assembly would load the already overworked county probation departments by saddling them with the burden of administering a complicated and unpopular program that is technology intensive. By now we have all heard of the disruptive ignition interlock device: The sobering, high tech, equipment that is installed in an automobile and requires a “clean breath” sample before engaging the starter. This was first made famous nationally in the movie “The Forty Year Old Virgin” and then, on the street, when Lindsay Lohan became the celebrity poster child for the device. This was followed by former Chicago Bears and Texas Longhorn running back Cedric Benson being ordered to install an ignition interlock device on his vehicle as a condition for bail.

Since November 2006 the technology has been endorsed by Mothers Against Drunk Driving (MADD) as part of their Campaign to Eliminate Drunk Driving. And for good reason – the statistics point to the efficacy of the technology and consistently demonstrate that recidivism is significantly reduced, at least while the offender has the device installed. (See, Roth, Richard; Voas, Robert; and, Marques, Paul, Interlocks for first offenders effective? Traffic Injury Prevention 2007; 8(4):346-52)

New York State has had an ignition interlock program on the books for over twenty years — One of the first in the nation (California was first in 1986). In the beginning it was referred to as a “Pilot Program” and only involved seven counties spread across the state. Other counties were empowered to order the installation of the device on an ad hoc basis. They rarely did so because the technology was emerging and the devices were full of bugs. Its use was discretionary with the sentencing Judge. By 2007 the bugs, for the most part, were identified and worked out. The law in New York State was expanded to encompass all the counties and its use is now mandatory in certain cases of “Aggravated Driving While Intoxicated” (BAC .18 or greater) when probation is ordered and in cases where the offender has been convicted of an alcohol related crime within the past five years. Even so, the use of the ignition interlock in New York State is limited and the experience of the administrators (probation departments) is irregular.

Currently there is legislation pending to make the use of an ignition interlock mandatory following any DWI conviction including first time offenses. (See, Senate Bill S-27A, January 7, 2009 and Assembly Bill A-07196, March 25, 2009). This program, if it becomes law, will follow several other states which have “first offender” programs: Notably, New Mexico and Arizona for pioneering that model. There will certainly be a huge increase in the number of ignition interlocks used in New York.

The impact on the offender is tremendous. There is the obvious embarrassment of having to use the devise whenever you drive and the less obvious impact on family members who want to drive (they too will have to blow-suck-blow into the contraption). And the cost is significant. Installation, monthly service, and removal fees easily exceed a thousand dollars a year. The minimum required installation will be one year for the first offender (and it could be a lifetime addition to the vehicle for the serial offender).

The aspect of the legislation that is particularly troubling is the fact that the program is to be administered by the county probation departments – not the New York State Department of Motor Vehicles. This has the potential for a real catastrophe in the execution of the program. In fact, I predict that New York will actually have 62 different programs (one for each county). This will drive up costs for the offenders, increase the required budgets in each county’s probation department, create an administrative nightmare and result in the inconsistent enforcement of the law across the state.

The service providers will surely have to get on a “list” for each county and the prices will vary considerably depending on where you reside in the state. (A quick call to the probation departments in Albany and Suffolk counties (both original “Pilot Program” jurisdictions will confirm this point.) The variability may be caused because the less populated counties present a disincentive to many service providers, a current problem. More likely, we will see an array of arbitrary rules that the county probation departments set for the vendors in doing business in that county. This will be very expensive for all involved. The problem is that the device is highly nuanced. Each manufacturer has devised their own subtle method for compliance with the broad federal specifications for device certification. Within those specifications there is ample opportunity for an administrator to prescribe custom requirements: time between random rolling retests; set-point to trigger a violation; the number of hours before the vehicle will “lock out,” to name a few.

Another reality is that the operation of the ignition interlock is inherently complicated. The device interfaces with, at least, the horn, lights, stereo and ignition of the automobile. The multitude of vehicles (1986 Oldsmobile, 2000 Mitsubishi and 2009 Ford Truck, for example) suggests innumerable potential problems with the wiring and maintenance of the interlock. Even if the manufacturers have ironed out the problems, I imagine it will require considerable resources to train and maintain personnel at the county level who will be able to sort out the far flung excuses about device malfunctions from true violations. On top of these issues, each interlock vendor has their own proprietary interface for downloading data securely to the probation department. I suppose the counties could simply say: This is how we want the data reported, but this approach will only exacerbate the lack of true competition among certified vendors of the device. In most cases the manipulation of the secure data will require significant technical expertise and the expense of  fine tuning for each county will drive many of the best manufactures out of the state to a venue such as Massachusettes, where the Registry of Motor Vehicles mandates a single template for use throughout the state.

The lawmakers should shift the burden to administering the program to the Department of Motor Vehicles. This is fiscally responsible because the State would enjoy economies of scale in the area of technological knowhow. One central team would become familiar with all of the reported bugs. Competition would increase among service providers who would answer to a central office with well publicized requirements to enter the market as opposed to arbitrary and divergent protocols emanating from 62 separate administrators. There would be uniformity in the assessment of violations and the needless debate about false positives from mouthwash and stale bread would cease as the IT department for the state would rapidly gain a database of well known errors among products and quickly be prepared to idnetify real from imaginary violations. While I believe the law will increase the level of safety on the highways, I urge the lawmakers to shift the burden to administering the program to the Department of Motor Vehicles. Please let them know your opinion. For more information go to: http://www.statewideinterlock.com Thanks.

11 thoughts on “A Problem with the Ignition Interlock Legislation in New York State

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  4. Deborah:
    Good question. This is best answered by the attorney who represented your husband at the sentencing. Depending upon the wording and intent of the “conditional discharge” he may need to obtain a modification of the terms of the discharge in order to be absolved of the condition. Call us at (518)452-8000 if you care to discuss this further.

  5. Can anyone answer a question? My husband was sentenced today to a conditional discharge =3 years and the interlock device and 30 days community service… who administers this program and if he sells the car does this just take away the interlock device penalty

  6. Brian:
    You make a good point about the fact that probation departments are better equipped to handle monitoring of offenders, but I think it misses the point of my post. Namely: New York probation departments do not have the ability to monitor the offenders. I suspect this is the same in Mass. If this responsibility were shifted to probation, each department would face the nearly impossible task of training and keeping a staff trained in the technology that you have built a career around. Let’s be honest, how many people can really appreciate the difference between infrared and fuel cell technologies? How much do you pay to train someone to learn that and then what do you do when they leave? The other point I try to make in the post is that the ignition interlock industry would be averse to entering the market. I foresee a rise in cost for the use of the device and poorer quality within the less competitive market. I would really be interested to find out how many probation administrators would welcome the job of monitoring ignition interlocks.

    I make this reply in the context that the ignition interlock laws are here to stay. The ignition interlock (Breath Alcohol Ignition Interlock Device (BAIID)) is regulated federally by the National Traffic Safety Administration (NHTSA) and tied to highway funding in the 50 States. In 2005 The Transportation Authorization Bill, Public Law 109-59, was enacted authorizing federal aid for highways and highway safety programs through fiscal year 2009.

    Section 2007 of the law, the Alcohol-Impaired Driving Countermeasures Incentive Grant Program, authorizes 137 million dollars of federal funding in Fiscal year 2009. This legislation requires states to participate in at least five of eight suggested safety programs, two of which involve the ignition interlock program, There is also the Repeat Intoxicated Driver Law found in 23 U.S. Code Section 164 that requires a state to suspend the license for one year and impound/immobilize the vehicle for one year or have and ignition interlock installed. Noncompliance by a state will result in the reallocation of 3% of highway safety funds to alcohol impaired driving safety countermeasures. Consequently, every state in the union has an incentive to promulgate some sort of ignition interlock regulation and at last count 45 have done so. Each participating state drafts and implements their own unique legislation to comply with the federal regulations and thereby receive or preserve the highway funding funds. Some are tough on the offender, opting into both of the federal incentives while others are lax choosing to preserve funding under one statute or obtain incentives from the other as they see fit. So long as they comply with the broad federal mandates, the States are entitled to their share of the grant money.

    Not surprisingly, there is a great diversity in programs among the states. I point to the states of Massachusetts and New York as examples of two programs that mandate ignition interlock use to illustrate the shortcomings of the approach used in New York State to enforce the program.

    Back in 2005 when Mitt Romney was the Governor of Massachusetts he produced an initiative called “Melanie’s Law”, the popular name for there statutory ignition interlock laws. Melanie was a young girl who was killed by a drunk driver. He signed the bill on October 28, 2005 and the program was up and running by January 1, 2006. The system there requires all drivers with two convictions of operating under the influence (of alcohol or controlled substance), if they are eligible for reinstatement of their driver’s license, to install an ignition interlock for two years following reinstatement.

    New York has developed in a vastly different manner (see origional post), but now NY is proposing a much more aggressive campaign. I am not focusing on the functionality of the device but rather the functionality of the program.

    While I do not have the statistics readily available, my guess is that the program in Mass. has at least as many installed interlocks as the entire state of NY. As a fiscal matter, the program in Mass. must be more efficient. If you can point out where my hypothesis is wrong please let me know. I’ll keep an open mind.

  7. Ignition Interlock Devices have been used in Massachusetts since January of 2006. The Mass. RMV administers the interlock program. The penalty for an interlock violation is either a 10 year or lifetime license revocation. The biggest problem with ignition interlock devices is that they are notoriously unreliable. In my practice as an ignition interlock defense lawyer, I have personally seen cases where common products such as hand sanitizer, windshield washer fluid, baked goods, flavored coffee, cough drops, mouthwash, sugarless gum, a protein bar, and other items have triggered
    ignition interlock violations
    . I have instructed my clients to immediately go to a hospital or police station for a comparison blood alcohol test if their interlock device has registered alcohol. Thus, I have documented situations where the interlock has registered alcohol and the person has a 0.00 breathalyzer reading. Ignition interlocks are not breathalyzers or scientific test instruments. They are lockout devices which are prone to failure and malfunction. They do not use infrared technology to determine blood alcohol. Instead, they use fuel cells which can mistake certain chemicals and substances for blood alcohol.

    Given the limitations of interlock devices, the administration of an interlock program should be handled by a probation rather than a motor vehicle department. Probation departments are far better equipped to handle monitoring of offenders. They already monitor offenders for drug and alcohol usage.

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