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Fiandach & Fiandach (Rochester NY)

585.244.8910

Fiandach & Fiandach - New York's First and Western New York's Only DWI Defense Specialist.
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Safety Interlocks A Primer

February 14, 2008

It's been several years since Buffalo City Court Judge David M. Manz first suggested this as a topic for a lead note. The reason for the delay is quite simple. Until recently, there were no reported cases on safety interlocks. I've never been much of a believer in these ubiquitous little devices, it always seemed to me that they would be easily bypassed in a manner that would defeat the entire purpose. After researching the devices and the available technology, I must admit that I've guardedly changed my opinion. With the appropriate measures in place, including aggressive enforcement of Vehicle and Traffic Law ''511-a, Facilitating Aggravated Unlicensed Operation, safety interlocks may prove somewhat helpful in the recidivist situation.

Before looking at the devices themselves, let's briefly examine the statutory basis for the interlock program. Set out in Vehicle and Traffic Law '1198, the ignition interlock device program is broadly described by subdivision (1). It is presently authorized for use in Albany, Erie, Nassau, Onondaga, Monroe, Westchester and Suffolk counties, however, a participant authorized in one of the enumerated counties is authorized to operate his or her vehicle within any county of the state. Oddly, this enabling section contains the following, somewhat curious, declaration:

This section shall not be construed to preclude other counties not specifically designated therein from implementing an ignition interlock device program or to prevent courts in other jurisdictions from requiring the installation of an ignition interlock device as a condition of probation.

 

It would therefore seem that despite the commonly held conception that this program is severely limited in geographical scope, it is in fact available for use across the state. While Vehicle and Traffic Law '1198 is temporary in nature and was due to expire this year, the Legislature has extended its operation until 2001.


To understand of the role played by the ignition interlock device program, it is essential to realize that it is a condition of probation. Vehicle and Traffic Law '1198(2) provides:

In addition to any other penalties prescribed by law, the court may require that any person who has been convicted of a violation of subdivision two or three of section eleven hundred ninety-two of this chapter, or any crime defined by this chapter or the penal law of which an alcohol- related violation of any provision of section eleven hundred ninety-two of this chapter is an essential element, and who has been sentenced to a period of probation, install and maintain, as a condition of such probation, a functioning ignition interlock device in accordance with the provisions of this section; provided, however, the court may not authorize the operation of a motor vehicle by any person whose license or privilege to operate a motor vehicle has been revoked except as provided herein.

 


Two salient provisions of this section should be observed. First, to enable this provision to become effective and for a safety interlock to be installed, the defendant must be eligible for driving privileges. Vehicle and Traffic Law '1198 does not create additional privileges, it imposes a restrictive condition upon privileges that the motorist may otherwise be eligible for. Secondly, while generally imposed upon a conviction for a violation of Vehicle and Traffic Law '1192(2) or Vehicle and Traffic Law '1192(3), such is not mandatory. By virtue of the second clause, any violation of the Vehicle and Traffic Law or the Penal Law for which the motorist has been sentenced and which contains an alcohol related violation will suffice. Thus, a conviction for Aggravated Unlicensed Operation in the First or Second Degree or Vehicular Manslaughter will permit imposition of this sanction. Of note, the interlock program will not be available as an option at sentencing for an individual sentenced under the Navigation Law. This is indeed unfortunate in that it will not permit the sentencing court to impose installation of a safety interlock when an individual is placed on probation following a conviction for a violation of Navigation Law '49-a, even if this event is preceded by a conviction for Vehicle and Traffic Law '1192. Finally, it should be noted that Vehicle and Traffic Law '1198 is not available for a violation of Vehicle and Traffic Law '1192(4), Driving While Ability is Impaired by Drugs.

Statutorily, an interlock device is described by Vehicle and Traffic Law '119-a as:

Any blood alcohol concentration equivalence measuring device which connects to a motor vehicle ignition system and prevents a motor vehicle from being started without first determining through a deep lung breath sample that the operator's equivalent breath alcohol level does not exceed the calibrated setting on the device as required by section eleven hundred ninety-eight of this chapter.

 

Further, the parameters of permissible devices are set out a great length in 10 NYCRR 59.11 (see, Fiandach, NY DWI 2d ed. pp. 1371 - 1380). While the statutory and administrative provisions are extensive, the essential features of the program are as follows.

First, as noted above, utilization of the device requires that an individual be convicted of an alcohol related operating offense as described by the Vehicle and Traffic or Penal Law.

Secondly, the provisions outlined in Vehicle and Traffic Law '1198 are not limited to new convictions. Vehicle and Traffic Law '1198(2)(b) specifically permits the sentencing court to modify the conditions of probation of any person convicted of any violation set forth in paragraph (a) of this subdivision prior to the effective date of Vehicle and Traffic Law '1198. While it seems that the intended purpose of this provision was to make the safety interlock program immediately available to all who would have been otherwise eligible prior to the enactment of the program, the manner in which the law has been continuously amended to extend its' operation may create the argument that existing probationers may be shunted into this program. This logic maybe of some use to the sentencing judge who is somewhat inclined to permit restoration of driving privileges but has reservations as to the overall advisability of such a decision.


Thirdly, all parties should recognize the utility of this device as a plea bargaining tool. As just noted, the safety interlock imposes a protective barrier between the sentencing judge and the defendant to whose rehabilitation may actually be benefited by the privilege of operating a motor vehicle. Two situations that come to mind are the rural recidivist that lives many miles from a competent rehabilitation facility or the defendant for whom driving spells the difference between maintaining an existing job or the welfare roles. In such situations, the court has some assurance that the defendant will not bring about his or her political demise through an alcohol related accident.

Likewise, the prosecution should not loose sight of the fact that the interlock program represents yet one more arrow in the probation condition quiver. It may be imposed in addition to shock probation and/or electronic home monitoring. This makes it a nice quid pro quo for withdrawing opposition to a conditional license.


Integral to an understanding of the role to be played by the safety interlock program is an understanding of what is referred to as a post-revocation conditional license. This is not the same as the conditional license described by Vehicle and Traffic Law '1196. Described by Vehicle and Traffic Law '1198(3)(b), a post- revocation conditional license entitles the holder thereof to travel (1) en route to and from the holder's place of employment, (2) if the holder's employment requires the operation of a motor vehicle then during the hours thereof, (3) en route to and from a class or course at an accredited school, college or university or at a state approved institution of vocational or technical training, (4) to and from court ordered probation activities, (5) to and from a motor vehicle office for the transaction of business relating to such license, (6) for a three hour consecutive daytime period, chosen by the administrators of the program, on a day during which the participant is not engaged in usual employment or vocation, (7) en route to and from a medical examination or treatment as part of a necessary medical treatment for such participant or member of the participant's household, as evidenced by a written statement to that effect from a licensed medical practitioner, (8) en route to and from a class or an activity which is an authorized part of the alcohol and drug rehabilitation program and at which participant's attendance is required, and (9) en route to and from a place, including a school, at which a child or children of the participant are cared for on a regular basis and which is necessary for the participant to maintain such participant's employment or enrollment at an accredited school, college or university or at a state approved institution of vocational or technical training.

By and large, the privileges outlined in this subsection are identical to those provided in the more familiar Vehicle and Traffic Law '1196 conditional license. There are, however, crucial differences. Initially, this license is granted after the minimum period of revocation as imposed by the court at sentencing has expired. This is in marked contrast to the Vehicle and Traffic Law '1196 license that is issued during the revocation/suspensionary period. Additionally, receipt of this license is not conditioned upon attendance of a Drinking Driver Program. While it is difficult to discern why this is so, our belief is that since the post revocation conditional license is imposed as an additional condition of probation, in all likelihood treatment at an accredited facility has already been mandated an/or completed.


Bear in mind that issuance of a post-conviction conditional license is not guaranteed even though a safety interlock is posed as a condition of sentence. Pursuant to Vehicle and Traffic Law '1198(3)(a), issuance of such a license is clearly discretionary. As noted above, it may only be issued to a person who has been convicted of Vehicle and Traffic Law '1192(2) or '1192(3) and who has been sentenced to a period of probation and provided the person has satisfied the minimum period of license revocation established by law and the Commissioner has been notified that such person may operate only a motor vehicle equipped with a functioning ignition interlock device. What's more, the Commissioner becomes statutorily disempowered from issuing such a license when the proposed licensee has, in the language of the statute, been found by a court to have committed a violation of section five hundred eleven of this chapter during the license revocation period or deemed by a court to have violated any condition of probation set forth by the court relating to the operation of a motor vehicle or the consumption of alcohol. In our opinion, use of the phrase been found by the court is unfortunate. Found seems to indicate the need for findings. Our view is that before this clause may be imposed, the prospective conditional licensee may request a hearing to resolve this factual issue. Note also the use of the term committed a violation. Again this is a poor choice of terms. The phraseology employed seems to indicate a willingness on the part of the Legislature to exclude a proposed motorist upon a mere report that the motorist has unlawfully operated a motor vehicle even though no violation has been charged. While we bemoan the creation of the need for yet another fact finding hearing, the confluence of the word found and the term committed a violation seems to leave no other choice. Importantly, Vehicle and Traffic Law '1198(4)(b) requires the sentencing court to advise the Department of Motor Vehicles of the installation of the device in such manner as the Commissioner shall require.


As those who are intimately familiar with the issuance of the more common Vehicle and Traffic Law '1196 license are aware, such a license will not be issued in the event that the motorist has been convicted of three Vehicle and Traffic Law '1192 violations in the preceding ten years even though otherwise eligible. Perhaps because of the post-conviction nature of the unique Vehicle and Traffic Law '1198 license, this prohibition does not exist. Not only may such an individual be issued a post-revocation conditional license, in exercising discretion relating to the issuance of a post-revocation conditional license under this section, the Commissioner is prohibited from denying the issuance of such a license based solely upon the number of convictions for violations of any subdivision of Vehicle and Traffic Law '1192 within the ten year period preceding application.

Taken in no particular order of importance, other provisions pertaining to the interlock program include the allocation of cost. According to Vehicle and Traffic Law '1198(5), the cost, installation and maintenance of the safety interlock system is the responsibility of the probationer. Although seemingly obvious, Vehicle and Traffic Law '1198(8)(a) makes it abundantly clear that the presence of the safety interlock device runs to the motorist and not the vehicle. It is statutorily provided that the requirement of the interlock shall apply to every motor vehicle operated by that person including, but not limited to, vehicles that are leased, rented or loaned. Oddly, Vehicle and Traffic Law '1198(b) advises that:

No person shall knowingly rent, lease, or lend a motor vehicle to a person known to have had his driving privilege restricted pursuant to subdivision one of this section, unless the vehicle is equipped with an ignition interlock device. Any person whose driving privilege is restricted pursuant to subdivision one of this section shall notify any other person who rents, leases, or loans a motor vehicle to him of the driving restriction imposed under this section.

 

To give teeth to this provision, Vehicle and Traffic Law '1198(8)(c) makes a violation of either paragraph (a) or (b) a misdemeanor.

Likewise, and as would otherwise be expected, it is a misdemeanor for the probationer, or any other person, to circumvent the operation of the device.

Of real difficulty is the exception created by Vehicle and Traffic Law '1198(9). Denominated employer vehicle the scope of this section is downright terrifying:


9. Employer vehicle. Notwithstanding the provisions of subdivision one of this section, if a person is required to operate a motor vehicle owned by said person's employer in the course and scope of his employment, the person may operate that vehicle without installation of an approved ignition interlock device if the employer has been notified that the person's driving privilege has been restricted under the provisions of this article and the person whose privilege has been so restricted has acknowledgment of the employer notification in his or her possession while operating the employer's vehicle for normal business duties. The person shall notify the court and the probation officer of his or her intention to so operate the employer's vehicle. A motor vehicle owned by a business entity which business entity is all or partly owned or controlled by a person otherwise subject to the provisions of this article is not a motor vehicle owned by the employer for purposes of the exemption provided in this subdivision. The provisions of this subdivision shall apply only to the operation of such vehicle in the scope of such employment.

 

Well intentioned, our assumption is that this provision was created to cover the NYSEG employee who must drive the utility truck as part of his or her obligation to the company. In so far as the exception is reigned into this limited purpose, it is absolutely fine. The problem, as we see it, is the employer who, like our law firm as several passenger automobiles for use by firm employees. A passenger automobile which is assigned to the motorist on a 24 hour a day basis can only spell disaster. Our recommendation is that at the time of sentencing, proposed use of this exception should be strenuously scrutinized for the potential for abuse.

Upon installation of the interlock device, the probationer must provide proof of compliance to the court. Of note to defense counsel, even if the device has been installed, if the person fails to provide for such proof of installation, absent a finding by the court of good cause for that failure which is entered in the record, the court may revoke, modify, or terminate the person's sentence of probation as provided under law.

One of the more interesting provisions to be found in Vehicle and Traffic Law '1198 is created by subdivision (3)(d). This subsection sets out that:


Nothing contained herein shall prohibit the court from requiring, as a condition of probation, the installation of a functioning ignition interlock device in any vehicle owned or operated on a regular basis by a person sentenced for a violation of section five hundred eleven or section eleven hundred ninety-two of this chapter, or any crime defined by this chapter or the penal law of which a violation of any provision of section eleven hundred ninety-two of this chapter is an essential element, if the court in its discretion, determines that such a condition is necessary to ensure the public safety. Such a condition shall in no way limit the effect of any period of license suspension or revocation set forth by the commissioner or the court.

 

The above cited language in effect tells the sentencing court that it need not buy into the post-revocation conditional license to mandate the installation of a safety interlock device. Although the Office of Court Administration sees this provision as ensuring that an unlicensed person cannot drive the vehicle while under the influence of alcohol, we respectfully disagree. This section seemingly empowers any sentencing court to require the installation of a safety interlock device without summarily adopting the entire '1198 scheme. In our opinion, the use of the term by a person sentenced for a violation of section five hundred eleven or section eleven hundred ninety-two of this chapter, or any crime defined by this chapter or the penal law of which a violation of any provision of section eleven hundred ninety-two of this chapter is an essential element, merely requires a conviction to empower the sentencing court to mandate installation of the device. Our view is that probation is not a necessary requirement and that such installation could be enforced by virtue of a conditional discharge. Indeed, Vehicle and Traffic Law '1198(2)(c) specifically provides that the defendant may not be sentenced to a term of probation solely for the purpose of mandating installation of the device.

Speaking of the device, what is it and how does it work?

Initially, as noted above, 10 NYCRR 59.11 sets the parameters of these devices in great detail. By and large, these requirements are based upon similar mandates adopted by the National Highway Traffic and Safety Administration (NHTSA). These requirements are all telling and as breath testing goes are quite strenuous indeed:

! The device shall thwart false or filtered breath samples such as balloons, compressed air or hair dryers to at least an 80% degree of effectiveness.

 


! The device shall require random retesting.

 

! The device shall record all events including the results of all breath tests.

 

! The device shall require early lock out for the failure or refusal of a retest.

 

! The device must obtain a minimum sample of 1.5 liters of air for a deep lung sample.

 

! The device must allow a stall protect feature (no need to test) not to exceed two minutes.

 

! The device must detect and record when the device has been started without taking the test (bypass detection).

 

! The device must detect and record when the power is disconnected.

 

! The device must not be affected by normal fluctuation of the vehicle voltage.

 

! The device must not be affected by interference from radio frequency such as cellular telephones.

 

! The device results shall not degrade as a result of repeated testing with alcohol.

 

! The device shall demonstrate the ability to maintain calibration for 67 days.

 

! The device shall lock out if normal testing, servicing, monitoring or inspections are not performed.

 

! The device shall not be affected by normal vibration found in vehicles.

 

! The device must register alcohol readings within a range of 0.015 to 0.035 when tested with a calibration solution of 0.025 over temperature ranges from -20C to +70C.

 


So what does this miracle device look like? In our research we have encountered two manufactures, LifeSaverJ Interlock Inc., and Guardian InterlockJ Systems. Both devices look amazingly alike. Each contains two units, the testing head and the Central Processing Unit or CPU. The CPU resembles an older EscortJ radar receiver and while precise appearance depends upon the particular manufacturer, the CPU is black in color, contains several buttons and has several colored lights in approximately the same position that they would on the EscortJ. The CPU is installed under the dashboard or on the side of the steering column. According to Guardian, care is taken so as not to disturb the interior of the vehicle. The testing head is about the size of a pack of cigarettes and on each unit is attached to the CPU by means of a coiled cord.

Operation of the GuardianJ is typical. To start a motor vehicle that has been equipped with this device, the motorist must begin with the vehicle turned off. He or she then powers up the CPU by pressing the power button. The next step is to place a disposable trap type mouthpiece on the sampling head. When the light on the sampling head begins to flash, the motorist is to take a deep breath and blow into the mouthpiece for at approximately five seconds. During this period of time, he or she will hear the device generate a tone. When the tone stops, the motorist can cease blowing. Assuming that all is in order, the motorist will receive what is called an acceptance tone which is accompanied by a green light. At this point the motorist is able to start his or her automobile in the normal manner. Should the operator stall the vehicle, he or she can restart the vehicle within one minute of the time the vehicle is stalled without the need for being retested.


Exactly how these devices work is somewhat speculative. Telephone calls placed to the technical departments of each of the major manufacturers went unanswered. Further, unlike conventional breath test equipment, the web pages maintained by both GuardianJ and LifeSaverJ do not contain technical details. Presumably, this veil of secrecy prevents user tampering. Our best guess is that each device employs an electro-chemical fuel cell such as the AlcoSensorJ. We are not sure how deep lung air is assured, although two methods come quickly to mind. First, it may be assured by the length of the blow. This is a method which has been employed by the venerable old BreathalyzerJ models 900 and 900A. Another technique, although albeit more costly, which quickly cometh to mind is the use of pressure or temperature detection. Coupled with a slope detector, the alcohol output could be monitored and sampled at the appropriate point.

Are these devices fool proof? In a word, no. There is the well reported incident in Florida where the motorist had his child blow into the device and was later involved in an accident. But then again, nothing is. The GuardianJ system employs a unique and frankly innovative breath code. This is a pulsed breath code which must be entered by the user immediately after the acceptance test. Use of this code can be a little tricky and requires operator training. True, it is not fool proof, but it certainly serves to limit the available universe of individuals who can be employed to circumvent the device. Moreover, as we will see, other features contained in the program should aptly discourage the operator from using his or her unit to teach the code. Both the GuardianJ and the LifeSaverJ also contain a rolling retest feature. This is a randomly generated request for a re-blow that is required after the vehicle has been started. Any failure in timely complying will be electronically recorded.

While we are on the subject, electronic recordation is perhaps the strongest feature of these units. They record efforts to tamper the unit, times when the unit was without power, tests taken and failed tests. Further, should the CPU detect movement without a passed test, both units will repeatedly sound the horn. This will continue until a passed test and will similarly be recorded electronically. Tampering is also minimized by means of routine inspections and recording. At this time, the unit is inspected and the data is downloaded and transferred to a report for the court and the probation officer. Many categories are covered including failed tests and efforts to tamper.


What do we think of this program? After giving it a long and hard look, our opinion is guarded. Facially the device is capable of providing the recidivist a means of returning to the highway while taking serious steps to ensure public safety. For those who require the privilege to drive as a means of making a living, it can be an extraordinary component in his or her rehabilitation. The problem, as I see it goes back to Highway Law '290(3) and People v. Weaver, (1919) 188 App Div 395, 177 NYS 71. People who want to drink and drive will, no matter what we do to them. One had only look to cases decided under attempts to utilize persistent felony status to obtain confirmation of this fact. My real fear is that despite all the technical know-how which has been incorporated in the defendant's motor vehicle, it is still the defendant's motor vehicle. It is not the only vehicle that the defendant is able to drive! I have asked this question before, and I will ask it again. Why is it that when Albany sets out to enact these provisions, that one of the scriveners that are actually placed in charge of drafting these pieces of legislation doesn't first run it by individuals such as myself? Were I to be consulted, I would immediately point out that the Gordian knot in this entire program is the relatively toothless provisions to discourage placing unequipped motor vehicles at the motorist's disposal. The misdemeanor provision is nonsense. Why would such an individual want to borrow a car? Why to drink and drive, of course. If he or she needs to get a quart of milk or take the kiddies to daycare, why not simply blow and go? Knowingly permitting a person to commit a felony should be a felony. Further, there should be enhanced penalties for those who permit the motorist to circumvent the provisions and become involved in an accident. Of course when was the last time you saw someone charged with Facilitating Aggravated Unlicensed Operation?!



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