COMMISSION ON VASAP QUARTERLY MEETING Friday, December 7, 2018 Minutes Attendance Commission Members Sheriff Michael L. Wade, Chair Senator Richard H. Stuart Senator Glen H. Sturtevant, Jr. Delegate David J. Toscano Delegate Christopher E. Collins Delegate James A. Leftwich, Jr. The Honorable Mary Jane Hall The Honorable Gino W. Williams Mr. Anthony Carmichael Mr. John L. Saunders Ms. Pat Eggleston Absent Delegate Michael P. Mullin The Honorable George D. Varoutsos Ms. Robyn Allen Commission Staff Ms. Angela Coleman, Executive Director Mr. Richard Foy Ms. Queenie Bradley Ms. Charlene Motley Mr. Richard Phillips Ms. Keshana Pierce Ms. Diane Bussee Ms. Sarah Deputy ASAP Directors Mr. Miles Bobbitt Ms. Andrea Cosans Mr. James Hatcher Johnson Ms. Jennifer DeNova Ms. Cindy Sheffield Ms. Angela Fortune Ms. Jaime Moran Ms. Deborah Morgan Ms. Laura Offield Mr. Rick Wilkins Ms. Tara Smith Ms. Vicki Kesler Mr. Miles Bobbitt Other Attendees Mr. Chad Goodwin Ms. Michele Denhoff Mr. Drew Molloy Mr. David Hites Ms. Cynthia Hites Mr. John Honea Mr. Scott Mason Ms. Jennifer O Brien Ms. Debra Coffey Ms. Linda Aldridge Office of the Attorney General Mr. Christian Parrish 1
Time and Place The quarterly meeting of the Commission on Virginia Alcohol Safety Action Program (VASAP) was held on December 7, 2018 at 10:00 a.m. in the Virginia State Capitol Building, House Room #1. The meeting was called to order by Sheriff Michael L. Wade, Chair. Welcome and Introductions Sheriff Wade extended a welcome to everyone and invited the attendees to introduce themselves. He noted that Mr. Anthony Carmichael and Ms. Robyn Allen were recommended for appointment to the Commission at the last meeting, but official confirmation from the Speaker of the House of Delegates and the Senate Committee on Rules is still being awaited. Approval of Minutes A motion was made, and seconded, to approve the Commission meeting minutes from October 26, 2018. All were in favor; none opposed. Appointment of Vice Chair Sheriff Wade advised the Commission that a Vice Chair needed to be appointed, noting that the Code of Virginia permits any Commission member to serve in this capacity. Judge Williams moved that Delegate Toscano be selected as the Vice Chair. The motion was seconded. All were in favor; none opposed. Executive Finance Committee Report Ms. Angela Coleman delivered the report on behalf of the committee. The Executive Finance Committee met on November 30, 2018. Certification of Alexandria ASAP At the last Commission meeting, Alexandria ASAP was identified as a program with some certification deficiencies still in need of improvement. The Commission opted to continue to conditionally certify Alexandria ASAP to give the program time to completely meet requirements. The only remaining deficiency from the certification results in need of correction was to ensure that intakes were being conducted within 30 days of either the court order or DMV administrative enrollment date, as applicable. 2
Commission staff conducted an on-site review of the program on October 9, 2018. In addition, a random review of cases with referral dates between October 6, 2018 and November 19, 2018 was conducted, revealing that 100 percent of these audited cases were in compliance with the 30-day intake requirement. Ms. Coleman noted that although the Alexandria ASAP director could not be present for the Commission meeting due to travel out of the country, she would certainly be pleased to know that the Executive Finance Committee was recommending that her program be granted full certification through June 30, 2021. A motion was made, and properly seconded, to grant full certification to the Alexandria ASAP. All were in favor; none opposed. Executive Director s Report Ms. Coleman presented the Executive Director s Report. New Commission Staff Member Ms. Coleman recognized, and welcomed, a new addition to the Commission on VASAP staff, Ms. Queenie Bradley. Ms. Bradley will be assisting with ignition interlock monitoring and other tasks. Previously she worked at John Tyler ASAP for approximately 13 years. VASAP Advisory Board The Commission on VASAP assembled an advisory board in June, 2018 for the purpose of making recommendations to the Commission on several issues. The advisory board is composed of stakeholders from the Department of Motor Vehicles, Office of the Attorney General, Community Corrections, Department of Behavioral Health and Developmental Services and others as prescribed by the Code of Virginia. The advisory board, which is chaired by Mr. Andrew Molloy, Director of Chesterfield Community Corrections, will be reviewing a number of issues related to local ASAP operations, with emphasis on fiscal solvency. Ms. Coleman introduced Mr. Andrew Molloy who presented a report on the advisory board s activities to the Commission. Mr. Molloy stated that he is familiar with the VASAP system through both his roles as a director of a community corrections program, and as a former Commission staff member for several months, during which time he served as a certification team member. He reported that the advisory board has met once already and will be meeting again on December 13, 2018. The advisory board will be examining fees, policies, budgets and efficiencies. Mr. Molloy stated that he was honored to be asked to serve as chair and looks forward to working with the board. 3
2018 Holiday Statement Ms. Coleman directed the attention of the Commission members to the 2018 Holiday Statement in their binders. She stated that for several years the Commission office has been creating a holiday statement for distribution to local ASAPs, media outlets and other stakeholders about the dangers of drinking and driving, especially during the holiday season when there are more social events that involve the consumption of alcoholic beverages. During 2017, there were 248 alcohol-related fatalities in the Commonwealth. Ms. Coleman stated that an electronic version of the holiday statement will be available for distribution to the Commission members and local ASAPs. 2019 Commission Meeting Dates Ms. Coleman stated that the dates for the 2019 Commission meetings have been selected so that attendees can mark their calendars. The dates are March 29th, June 7th, September 13th, and December 13th. 2019 Legislation The Commission staff monitors legislation during each session of the General Assembly. Of recent concern is the number of ASAP cases involving the circumvention of the ignition interlock device when the venue of the offense cannot be established. A statutory solution may be an option. Ms. Coleman will be emailing the legislative members of the Commission to explore the feasibility of introducing legislation to address the issue. In response, Senator Stuart stated that any legislation would need to be submitted soon due to the short time frame before the general assembly convenes. Delegate Toscano added that during a short legislative session, delegates are only permitted to introduce 15 bills, and senators are limited to 25 bills. Petition for Rulemaking #278 Ms. Coleman summarized the content of the petition, stating that Ms. Cynthia Hites was requesting a revision of Virginia Administrative Code 24VAC35-30 regarding ignition interlock violations. Ms. Hites proposed that whenever there is a positive reading on the ignition interlock device, ASAPs shall be required to accept additional client-submitted evidence such as urine screens, blood tests, and police reports/testimony for consideration in conjunction with the ignition interlock data log results. The public comment period ended on September 28, 2018. Two citizen comments were posted on the Virginia Regulatory Town Hall site, both agreeing with the proposal. Ms. Hites was permitted three minutes to speak to the petition, followed by a response from Mr. Richard Foy of the Commission staff. 4
Ms. Hites made the following statement. There s a lot of paperwork involved with this. I m Cynthia Hites. In the past year, I was one of the few people who have had the interlock installed in my vehicle and have experienced just about everything wrong that can go wrong in the ASAP system collectively has been crystalized in my case starting with the fact that my case worker waited 100 days to create a violation. The law allows five days. But besides that, what precipitated this again she also sent a non-compliant report which all three things, all three violations, are scientifically impossible. I guess the whole point of the petition is that a scientific fail-safe is in need to protect innocent people. Something like this one of the violations, the alleged violations, that Ms. Kim Barcliff put forth was a high BAC at a 0.058 this was at 7:02 a.m., having prior started the car at a 0.00 BAC. This was a rolling retest. For some reason, at a 0.058, and then nine minutes later down to a 0.019, which is a standing pass. The problem is that the Alcolock machine says you passed, the car starts, but ASAP violates you, so they are a victim of their own laws with that one here. She also, my case worker, decided At this point, Sheriff Wade interjected and asked Ms. Hites to limit her comments to addressing the content of the petition. Ms. Hites continued her statement. Well yes and this also goes to the scientific testing, because if I had an opportunity to take a blood test also she violated me while I was anyway yes, if I had been able to take a blood test for any of these nine violations this happened on nine different days I did call out the police on all of the different days that I was able to so I would have the eye witness involving the officers. I asked them to smell my breath. I haven t had a drop to drink in over two and a half years obviously to this date. Essentially, the elimination rate of ethanol for some of these is up to 25 times the rate of ethanol. The only thing this machine proves is that ethanol is not present during any of my alleged violations and that is essentially what has happened over and over and over again. Instead of using discretion to not violate someone, the case worker used her discretion to essentially hurt me. Sheriff Wade interjected again to asked Ms. Hites to wrap up her statement. She concluded, Yeah, alright, well I think you have you all have the packages. You can see these documents for yourselves; you are welcome to see what she has done. Anyway that s if there are any questions that you have for me, I want you to know that I never did anything wrong with this. I have been punished to the utmost. No one has listened to me during the program when I was trying to get this resolved or afterwards. If anyone has any questions of me of any sort, please, please, ask me. Senator Stuart asked, Ms. Hites, what program were you in? Ms. Hites: I was in ASAP, Peninsula ASAP. Senator Stuart: OK; and were you show-caused on these occasions? Ms. Hites: Yes. Senator Stuart: and what did the judge determine? Ms. Hites: Well, the judge it was guilty, but there was five hours omitted from the data that was sent to the court from my case worker which I can easily show you. In one instance I also had a urinalysis. I 5
went so far as to have an endoscopy to find out what was wrong with me. Even as recently as March, Chris Morris said that if someone comes to them with this kind of problem, that they will go, and if I can t find a diagnosis, that he will find someone who can answer me why these readings are occurring. I feel something is wrong medically with me; I d like to know what it is. I want to know what the interferant is. Senator Stuart: Thank you. Ms. Hites: Yeah and I am innocent. Any more questions, of any sort? Richard Foy, from the Commission staff, made the following statement in response to the petition. Good morning. I m Richard Foy from the Commission staff. In response to the petitioner s request, I would like to just briefly review the interlock process, particularly as it relates to when we have a violation. ASAP clients, who have the ignition interlock installed, are provided both verbal and written instructions regarding the proper use of the device and the program expectations. They sign an agreement to indicate that they understand and that they will abide by these requirements. This agreement includes their understanding that they will not consume or use any products containing alcohol within the close proximity of the ignition interlock device, and also that they will provide a timely retest whenever they record a failing test on the interlock. The ASAP case managers, as part of their probationary duties, review the ignition interlock data logs, and this review includes observing the camera images to first ensure that the ASAP client is actually the individual providing the sample, and secondly, to detect any test results that would suggest alcohol consumption. By examining the test results, and the required retest results, the trained case manager can usually determine if the pattern that is being exhibited is consistent with consumed alcohol. If the case manager believes there is a violation, then the VASAP state office conducts a secondary review of the results. If there is some doubt as to the interpretation of the results, then we give the client the benefit of the doubt. Cases only get sent to court when we believe that a violation is clearly apparent. We feel that the process, that is in place currently, is a fair one. In response to the regulatory action before the Commission today that s being considered, the petitioner is suggesting that ASAP case managers be required to accept and consider additional evidence submitted by the client to include such things as urine screens, blood tests, preliminary breath test results, and police or other eye witness 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: (1) Who conducted the additional tests? Were they conducted by a certified laboratory in a controlled environment? (2) Was the collection of the samples observed? Was there a proper chain of custody and documentation? (3) Perhaps most importantly, how much time elapsed between the positive ignition interlock result and the administration of the other tests? Requiring ASAP to consider these additional tests from outside sources, subsequent to a positive reading on the ignition interlock, would be akin to having police officers accept additional evidence from a person after they have been arrested and submitted to an evidentiary breath test. In those cases, persons charged with DUI can go and they can get a blood test from an independent laboratory if they want to, at their own expense, but that s not something the police would look at. That s something the court would consider. Likewise, when clients have an ignition interlock violation, they are certainly free to obtain additional blood, breath or urine test results, and gather any other evidence if they want to, at their own expense. 6
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 of this sort would best be presented to the court in a noncompliance hearing so that the court can determine the admissibility as well as probative value of the additional evidence. Judge Hall asked, Mr. Foy, does the individual case worker have the authority to commence the showcause proceeding, or does that happen only after consultation with the state office? Mr. Foy: The current policy is that the state wants to look at every positive BAC that is 0.04 or above. If there is a higher BAC with a clear and consistent pattern, then they are not required to; however, from what Chris told me yesterday, he said we are pretty much looking at every one of them. Judge Hall: So, they are not show-causing until they see speak to you guys. Mr. Foy: Yes. Delegate Toscano continued with some questions. So, Mr. Foy, I want to make sure I kind of understand if I am reading this correctly what the petitioner is requesting is that there be a requirement that you all consider other evidence, right? Mr. Foy: That s my understanding. I believe the word require is actually in the petition in one place. Delegate Toscano: And let me understand, I heard you say that the way this works is you give people an opportunity for a retest if they fail a test, right? Mr. Foy: Yes. Delegate Toscano: But it is really on the machine, it s not Mr. Foy: The machine now is set to come up at five minutes after the first test. Delegate Toscano: Right; so really, if I heard you also correctly, it sounds to me like people will consider other evidence that they might that a person might provide, to show that something is even wrong with the device or they provide some other it could be a blood test or a urine test it doesn t mean they can t do it, it just means that under this proposal, you would have to consider it. That s the whole difference; you can consider it now anyway, right? Mr. Foy: Some things, yes. We will listen to what the person says. What s their story? Is it consistent with what we are seeing on the results? For example, if a case manager sees a real high BAC, but on the retest the result is 0.00, or that it has dropped substantially, then we can probably assume that is residual mouth alcohol rather than alcohol that s coming from the bloodstream. So, the case manager at that point would have the discretion to not go any further with it if it is a clear cut case like that. Delegate Toscano: So, you guys exercise your discretion all the time when you get evidence that suggest that maybe something was wrong with the reading, and give people the benefit of the doubt, if you think that s the case, and you don t show-cause them, right? If you feel that they have violated, 7
then you show-cause them, and then you can bring evidence into court and figure out the case and let the court decide. There are a lot of checks and balances. Mr. Foy: That s correct. Delegate Toscano asked an additional question that was unrelated to the petition regarding whether the ignition interlock device could be bypassed with a remote car starter. Mr. Richard Phillips of the Commission staff addressed the question. Mr. Phillips stated there is a physical point on the vehicle past the computer where the engine is going to turn over. That point can be interrupted by the interlock to prevent the car from starting. Referring back to the petition, Sheriff Wade asked the ASAP directors in the audience whether issues with the interlock, as described by Ms. Hites, is a systemic problem or an isolated incident. Ms. Vickie Kesler, Director of the John Tyler ASAP, responded by saying that the Hites have brought a lot of information to their attention for consideration, and this has resulted in increased awareness by her staff when reviewing ignition interlock results. John Tyler ASAP and Chesapeake Bay ASAP monitor a thousand of these cases each month. Violations are carefully and consistently scrutinized by all the ASAP directors. John Tyler ASAP sends very few people back to court because the clients usually admit to alcohol consumption when interviewed. When results are inconclusive, the client receives the benefit of the doubt. Sheriff Wade permitted Ms. Hites to add the following brief statement. With specific regard to alcohol absorption in this machine, if you look at the date, 3/4 Mr. Christian Parrish, from the Attorney General s Office, reminded Ms. Hites that only information pertinent to the petition should be presented. Ms. Hites replied, Right, and this is why you need a scientific fail-safe because alcohol cannot be absorbed within three minutes. To give you a 0.07 reading, when you start the car at 0.00, all of a sudden in three minutes you are up to 0.07, and then within 24 minutes, you have zeroed out. This cannot be ethanol. There has got to be some kind of way to prove that it is not ethanol. It cannot only be the machine because no one is doing the math. The math is you metabolize ethanol at a rate of 0.015 an hour. At the extreme rate, it s 0.02, OK? So, if I have, on July 21, 2016 if in nine minutes my alcohol level goes down my alcohol level goes down 0.039, that can t be ethanol. This is happening time and time and time and time again. Instead of this case manager, knowing that it is not ethanol because the machines are fallible, she chooses to continue to pursue a case against me and make it as prejudicial as possible, even including one violation where it was proven by the sheriff that it couldn t have been me. So, what I am saying is the offender is not the only human cog in this machine. The case worker is also a human element who can, and does, and will, exploit any kind of weakness in the system of which there is. 8
Executive Session A motion was made by Mr. John Saunders, that pursuant to Virginia Code 2.2-3712, the Commission go into closed session to discuss matters exempt under 2.2-3711(A)(7) and (A)(8), specifically to receive legal advice from counsel regarding (1) a petition to amend regulations filed pursuant to VA Code 2.2-4007 and under 2.2-3711(A)(16) for discussion of medical or mental health records exempted under 2.2-3705.5. The motion was seconded. All were in favor; none opposed. Return to Open Session Mr. John Saunders moved that the board certify under Virginia Code 2.2-3712(D) that to the best of each member s knowledge (1) only public business matters lawfully exempted from open meeting requirements under this chapter, and (2) only such public business matters as were identified in the motion by which the closed meeting was convened, were heard, discussed or considered in the closed meeting by the public body. The motion was seconded and all were in favor as recorded by roll call vote; none opposed. Sheriff Michael L. Wade, Chair Senator Richard H. Stuart Senator Glen H. Sturtevant, Jr. Delegate David J. Toscano Delegate Christopher E. Collins Delegate James A. Leftwich, Jr. The Honorable Mary Jane Hall The Honorable Gino W. Williams Mr. John Saunders Ms. Pat Eggleston Mr. Anthony Carmichael Delegate Toscano moved that Petition #278 be denied. The motion was properly seconded. All were in favor of denying the petition; none opposed. 9
Return to Executive Session A motion was made by Judge Williams, that pursuant to Virginia Code 2.2-3712, the Commission return to closed session to discuss matters exempt under 2.2-3711(A)(7) and (A)(8), specifically to receive legal advice from counsel and to be briefed by staff members regarding proposed legislation related to ignition interlock circumvention issues and the litigation and prosecution related to such violations and under 2.2-3711(A)(16) to discuss medical or mental health records exempted under 2.2-3705.5. The motion was seconded. All were in favor; none opposed. Return to Open Session Judge Williams moved that the board certify under Virginia Code 2.2-3712(D) that to the best of each member s knowledge (1) only public business matters lawfully exempted from open meeting requirements under this chapter and (2) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the closed meeting by the public body. The motion was seconded and all were in favor as recorded by roll call vote; none opposed. Sheriff Michael L. Wade, Chair Senator Richard H. Stuart Senator Glen H. Sturtevant, Jr. Delegate David J. Toscano Delegate Christopher E. Collins Delegate James A. Leftwich, Jr. The Honorable Mary Jane Hall The Honorable Gino W. Williams Mr. John Saunders Ms. Pat Eggleston Mr. Anthony Carmichael Sheriff Wade stated that with regard to the issue of establishing venue in ignition interlock circumvention cases, the Commission would need to do a little more research, and have the Attorney General s Office prepare any appropriate legislation. 10
VASAPDA Report Ms. Jaime Moran, Director of Bull Run ASAP, introduced herself as the new president of VASAPDA. She stated that she has been in the ASAP system since 2005, serving as the VASAPDA president since October, 2018. Ms. Moran reported that all of the ASAPs have completed their FY-2018 audits and that all ASAPs will be using the new case management information system by the end of December. Adjournment There being no further business, a motion was made and seconded to adjourn. All were in favor; none opposed. Sheriff Wade adjourned the meeting. 11