601 KAR 2:030reg. Ignition interlock

      Section 1. Definitions. (1) "Calibration" means the process that ensures an accurate alcohol concentration reading is being obtained on the ignition interlock device.

      (2) "Certification" means the approval process required by the Commonwealth of Kentucky for ignition interlock devices and device providers prior to operating within the state.

      (3) "Defendant" means an individual who is determined to be eligible and who is ordered by the court to drive only motor vehicles that have certified ignition interlock devices installed.

      (4) "Department" means the Department of Vehicle Regulation in the Kentucky Transportation Cabinet.

      (5) "Device" means a breath alcohol ignition interlock device.

      (6) "Fail-point" means the level at which the breath alcohol concentration is at or above .02 percent.

      (7) "Ignition interlock certification of installation" is defined by KRS 189A.005(3).

      (8) "Ignition interlock device" is defined by KRS 189A.005(2).

      (9) "Ignition interlock device provider" or "device provider" is defined by KRS 189A.005(4).

      (10) "Ignition interlock license" is defined by KRS 189A.005(5).

      (11) "Ignition interlock service provider" or "service provider" means a certified supplier, installer, service provider, and, if applicable, manufacturer of the certified ignition interlock devices.

      (12) "Lockout" means the ability of the ignition interlock device to prevent a motor vehicle's engine from starting.

      (13) "Manufacturer" means the actual maker of the ignition interlock device that assembles the product and distributes it to device providers.

      (14) "Medical accommodation" means non-standard calibration of a device that has been adjusted to detect the breath alcohol level of defendants who have a medically documented condition of diminished lung capacity requiring a reduced air sample.

      (15) "Motor vehicle" is defined by KRS 186.010(4).

      (16) "NHTSA" means the National Highway Traffic Safety Administration.

      (17) "Provider representative" means a device provider employee who provides oversight of the provider’s ignition interlock operations within the Commonwealth of Kentucky.

      (18) "Retest" means an additional opportunity to provide a breath sample.

      (19) "RFQ" means a request for qualifications pursuant to KRS Chapter 45A.

      (20) "Rolling retest" means a test of the defendant's breath alcohol concentration required at random intervals during operation of the motor vehicle.

      (21) "Service facility" means the physical location where the service provider’s technicians install, calibrate, or remove ignition interlock devices.

      (22) "Service facility inspection" means the process of determining that a service provider and its technicians are qualified and approved to provide ignition interlock services within the Commonwealth of Kentucky.

      (23) "Tampering" means an unlawful act or attempt to disable or circumvent the legal operation of the ignition interlock device.

      (24) "Technician" means a service provider employee or contractor who installs, calibrates, and removes ignition interlock devices within the Commonwealth of Kentucky.

      (25) "Violation" means:

      (a) A breath test indicating an alcohol concentration at the fail-point or above upon initial startup and retest during operation of the motor vehicle;

      (b) Altering, concealing, hiding, or attempting to hide one’s identity from the ignition interlock system’s camera while providing a breath sample;

      (c) Failure to provide a minimum of fifty (50) breath samples within a thirty (30) day period;

      (d) Tampering that breaches the guidelines for use of the interlock device; or

      (e) Failure to pay provider fees as established in Section 2(17) of this administrative regulation.

 

      Section 2. Ignition Interlock Device Applications. (1) The requirements established in this administrative regulation shall not be applied retroactively to ignition interlock devices in use prior to the effective date of this administrative regulation.

      (2)(a) Upon arraignment of an offense under KRS 189A.010 resulting in pretrial license suspension, a defendant seeking authorization to apply for and, if eligible, operate under an ignition interlock license shall file with the court a completed Pretrial Application to Court for Authorization to Apply for an Ignition Interlock License and Device, AOC-495.4, pursuant to KRS 189A.200.

      (b) Upon conviction of an offense under KRS 189A.010 resulting in license revocation, a defendant seeking authorization to apply for and, if eligible, operate under an ignition interlock license shall file with the court a completed Application to Court Upon Conviction for Authorization to Apply for an Ignition Interlock License and Device, AOC-495.12, pursuant to KRS 189A.070.

      (c) Upon judicial finding of a refusal under KRS 189A.107(2) and an acquittal of charges brought under KRS 186.010, the court may authorize the defendant to submit a completed Post-Acquittal Application for Authorization to Apply for an Ignition Interlock License and Device, AOC 495.10.

      (d) An eligible defendant in compliance with KRS Chapters 186 and 205 shall receive an Order Upon Acquittal Authorizing Ignition Interlock License and Device, AOC-495.11.

      (e) The cabinet shall issue an ignition interlock license for the period of suspension ordered by the court.

      (3) A defendant requesting indigency status review shall file concurrently with the application a completed Financial Statement, Affidavit of Indigency, Request for Reduced Ignition Interlock Device Costs, AOC-495.8.

      (4) Upon review of the appropriate application, the court may issue the defendant a Pretrial Order Authorizing Application for Ignition Interlock License and Device, AOC-495.5, or an Order Upon Conviction Authorizing Application for Ignition Interlock License and Device, AOC-495.13.

      (5) Defendant eligibility guidelines, applications, and medical accommodation forms shall be made available electronically on the cabinet’s Web site at http://drive.ky.gov and in printed form through the Department of Vehicle Regulation regional field offices. Regional office locations and contact information are available at http://drive.ky.gov.

      (6)(a) Prior to application, a defendant shall be required to remit to the cabinet a non-refundable application fee in the amount of $105 pursuant to KRS 189A.420(6). Payment shall be made by cashier’s check, certified check, or money order at one (1) of the cabinet’s regional field offices or the central office in Frankfort.

      (b) A defendant’s payment of the application fee shall not be subject to a court’s determination of indigency.

      (7) A defendant and his or her counsel are advised that a pre-existing out-of-state or in-state suspension for the offenses listed in KRS 186.560, 186.570, or 205.712 shall result in the defendant’s ineligibility to obtain an ignition interlock device. Eligibility guidelines are available at http://drive.ky.gov.

      (8) A defendant shall submit to the cabinet a completed Ignition Interlock Application, TC 94-175, with a court order authorizing application and proof of insurance and valid vehicle registration.

      (9) A defendant seeking a medical accommodation due to diminished lung capacity shall submit with the application a completed Breath Alcohol Ignition Interlock Physician Statement, TC 94-176.

      (10) The cabinet shall issue the defendant a letter providing notice of his or her eligibility or ineligibility to install an ignition interlock device based on whether his or her current driving history record conforms to the eligibility guidelines established in KRS Chapters 186 and 205.

      (11) A defendant eligible for device installation shall select and contact a certified device provider of his or her choice from the list maintained on the cabinet’s Web site at http://drive.ky.gov.

      (12) A technician designated by the device provider shall install a certified ignition interlock device on the defendant’s vehicle upon receipt of the court order and letter of eligibility issued by the cabinet.

      (13) A defendant shall be required to install an ignition interlock device on one (1) primary motor vehicle registered and titled in his or her name or another’s motor vehicle with express notarized, written consent of the owner authorizing installation of the device.

      (14) Nothing in this administrative regulation shall prohibit a person from installing devices on multiple motor vehicles pursuant to subsection (13) of this section.

      (15) Upon a defendant’s payment of the appropriate fees, the service provider’s technician shall install the device and issue to the defendant a Certificate of Installation for Ignition Interlock Device, TC 94-177.

      (16) At the time of issuance of an ignition interlock license, a defendant shall:

      (a) Present the Certificate of Installation to the circuit clerk in the defendant’s county of residence; and

      (b) Pay a licensing fee pursuant to KRS 186.531 in addition to the fees specified in subsection (20)(c) of this section. The license shall display an ignition interlock device restriction.

      (17) After ten (10) days' written notice to the defendant, the provider shall notify the appropriate county attorney and the cabinet for nonpayment of fees on an account that is in arrears for thirty (30) days or more.

      (18) A defendant may voluntarily have the device removed and reinstalled onto a different motor vehicle pursuant to subsection (13) of this section, and upon payment of the appropriate fees to the provider.

      (19) A defendant shall have the device removed by an approved service provider and technician designated by the device provider upon completion of the ignition interlock period specified by the court.

      (20)(a) Upon removal of the device, the service provider shall retain for their records and provide to the defendant a Certificate of Removal for Ignition Interlock Device, TC 94-178, documenting the successful removal of the interlock device and defendant’s payment of all fees.

      (b) Upon notice that the device has been removed, the cabinet shall update the defendant’s driver history record authorizing the circuit clerk’s office to issue the defendant a new license without the ignition interlock restriction.

      (c) A defendant shall pay the appropriate fee for a duplicate or renewal license pursuant to KRS 186.531.

      (21) A defendant with a license suspension or revocation period exceeding twelve (12) months shall be subject to retesting requirements prior to the issuance of a new license pursuant to KRS 186.480.

 

      Section 3. General Requirements for Ignition Interlock Device Providers. (1) The cabinet shall certify ignition interlock device providers utilizing the provisions of KRS Chapter 45A and the terms of the RFQ. Initial certification shall be valid for a period of eighteen (18) months. Extensions shall be for a period of two (2) years with two (2) subsequent renewals.

      (2) Ignition interlock device providers certified under this administrative regulation shall obtain re-certification in compliance with this administrative regulation prior to providing devices and services.

      (3) An ignition interlock device provider seeking certification to provide devices and services within the commonwealth shall comply in all respects with the requirements of solicitation issued by the cabinet. Non-compliance shall result in a denial of certification.

      (4) An ignition interlock device provider may subcontract with a person, firm, LLC, or corporation to provide a device and services if that device is specifically included in its original certification request and is specifically certified by the cabinet pursuant to KRS 189A.500.

      (5) An ignition interlock device or service provider shall provide information and training for the operation and maintenance of the device to the defendant and other individuals operating a vehicle with an installed device.

      (6)(a) A device and service provider shall be prohibited from removing a device owned by a different provider unless an agreement is in place or for the purpose of replacing a defendant’s provider due to that provider’s insolvency or business interruption.

      (b) The original device provider shall bear the costs associated with the removal of the existing device and installation of the new device.

      (7) A device provider shall notify the cabinet within fifteen (15) days of a pending suspension, revocation, or disciplinary action taken against it by a jurisdiction outside the commonwealth. Notice shall include a copy of the official correspondence or pleading establishing the reason for the pending action and shall be provided to the cabinet regardless of the existence of an appeal.

      (8) The records required by Section 4(2)(e) of this administrative regulation shall be retained by an ignition interlock device provider for five (5) years from the date the device is removed from the defendant's vehicle. The records shall be disposed of in a manner compliant with relevant privacy laws and the provisions contained in this administrative regulation.

 

      Section 4. Certification of Ignition Interlock Devices and Device Providers. (1) An ignition interlock device provider requesting certification of an ignition interlock device shall:

      (a) Submit an affidavit that the ignition interlock device sought to be used complies with the applicable specifications and certification requirements contained in the RFQ; and

      (b) Submit documentation for each model from either a certified, independent testing laboratory or the NHTSA testing laboratory that the ignition interlock device meets or exceeds the current NHTSA model specifications at nhtsa.gov/staticfiles/nti/pdf/811859.pdf.

      (2) An ignition interlock device provider requesting certification shall:

      (a) Submit evidence demonstrating successful experience in the development and maintenance of an ignition interlock service program, including a list of jurisdictions served by the device provider;

      (b) Provide a description of the training required including its frequency, for persons employed by, contracted with, or permitted by the provider to install, calibrate, remove, and provide continuing support for the devices;

      (c) Provide a plan that includes a location map describing the areas and locations of the provider’s proposed fixed installation and service facilities. The plan shall include at least one (1) fixed facility in each of the twelve (12) highway districts;

      (d) Agree to initial service facility inspections, continuing random inspections, and annual inspections of each service facility by the cabinet or its designee. The provider shall also agree to provide sufficient notice to the cabinet or its designee of the opening of new service facilities to permit the inspection of the facility within thirty (30) days of opening;

      (e) Provide a plan for the receipt, maintenance, and destruction or appropriate return of defendant records consistent with court rules and the confidential maintenance of defendant records as required by the Driver’s Privacy Protection Act, 18 U.S.C. 2721 and other applicable statutes;

      (f) Provide proof of insurance covering the liability related to the manufacture, operation, installation, service, calibration, and removal of the devices with policy limits as established in the RFQ. The provider’s liability insurance shall be expressly considered primary in the policy;

      (g) Designate a provider representative authorized to speak on behalf of and bind the device provider, and designated to work with the cabinet, the courts, and other agencies in the administration of the ignition interlock program;

      (h) Maintain a toll-free twenty-four (24) hour emergency phone service that shall be used by defendants to request assistance in the event of operational problems related to the device and shall include technical assistance and aid in obtaining roadside service if needed; and

      (i) Demonstrate the ability to maintain sufficient, secure computer hardware and software compatible with the cabinet and court requirements to record, compile, and transmit data and information requested by the cabinet and the Administrative Office of the Courts.

      (3) Device providers shall notify the appropriate county attorney within twenty-four (24) hours electronically, or no later than seventy-two (72) hours by mail, fax, or other method approved by the recipient of the following occurrences:

      (a) Device tampering or circumvention violations; or

      (b) A defendant’s failure to comply with a court order pursuant to Section 6(6) of this administrative regulation.

      (4) A provider shall indemnify and hold harmless the commonwealth and its employees and agents from all claims, demands, or actions as a result of damages or injury to persons or property, including death, that arise directly or indirectly out of the installation, omission, failure of installation, servicing, calibrating, or removal of an ignition interlock device. Indemnification shall extend to acts or omissions by the cabinet, department, or its employees or agents due to verified errors in reporting ignition interlock activities by the provider.

 

      Section 5. Ignition Interlock Device Installation. (1) A provider may charge a defendant for the commodities and services listed in the RFQ, including the following:

      (a) Standard ignition interlock device installation, or installation on alternative fuel motor vehicles or a motor vehicle with a push button starter;

      (b) Device rental on a monthly basis;

      (c) Scheduled device calibrations and monitoring as specified in the RFQ;

      (d) Required insurance in case of theft, loss, or damage to the device and its components;

      (e) Resets necessary due to the fault of the defendant;

      (f) Missed appointments without notice;

      (g) Service calls and mileage up to 100 miles at the current rate established by the Kentucky Finance and Administration Cabinet; and

      (h) Device removal.

      (2)(a) The court shall determine whether a defendant is indigent. A defendant declared indigent shall pay a proportionate amount of the fees agreed to in the RFQ based upon the guidelines established by the Kentucky Supreme Court in Amendment to Administrative Procedures of the Court of Justice, Part XVI, Ignition interlock, Amended Order 2015-13.

      (b) A device and service provider shall accept the court ordered amounts paid by an indigent defendant as payment in full.

      (3) The defendant shall remit the fees directly to the device or service provider as directed by the device provider. A device provider shall not prohibit the pre-payment of fees for the device and services.

      (4) The device provider shall pursue collection of amounts in arrears and recovery of the devices, where applicable, through separate legal action.

      (5) An ignition interlock device shall be installed by or under the direction and supervision of a cabinet-certified ignition interlock device provider in conformance with approved, prescribed procedures of the device manufacturer.

      (6) A service provider and technician shall use the calibration units approved by NHTSA and appearing on its list of Conforming Products List of Calibrating Units for Breath Alcohol Testers at http://www.transportation.gov/odapc/conforming-product-list-calibrating-units-breath-alcohol-testers.

      (7) An ignition interlock device provider shall ensure that technicians installing the device:

      (a) Inspect, calibrate, or replace devices with a newly calibrated device at each inspection as required;

      (b) Retrieve data from ignition interlock device data logs for the previous period and send the information to the appropriate authority within twenty-four (24) hours electronically, or no later than seventy-two (72) hours by mail, fax, or other method approved by the recipient pursuant to KRS 189A.500;

      (c) Record the odometer reading at installation and at service appointments;

      (d) Inspect devices and wiring for signs of tampering or circumvention, record suspected violations, and transmit violation reports pursuant to Section 4(3) of this administrative regulation; and

      (e) Conform to other calibration requirements established by the device manufacturer.

      (8) The cabinet shall:

      (a) Maintain a periodically updated, rotating list of certified ignition interlock device providers and approved facilities available at http://drive.ky.gov;

      (b) Make available an Ignition Interlock Application, TC 94-175, available at http://drive.ky.gov and in regional field offices and the central office in Frankfort;

      (c) Make available a uniform Certificate of Installation for Ignition Interlock Device, TC 94-177 to be printed and distributed by device providers to their approved service providers and technicians documenting successful ignition interlock device installation; and

      (d) Issue an ignition interlock license to eligible defendants upon receipt of a court order and in compliance with the requirements of this administrative regulation. The license shall have in-force status and indicate it is an ignition interlock license by displaying a restriction code for an ignition interlock device.

 

      Section 6. Installation, Operation, Calibration, and Removal of Devices. (1) Prior to installing the device, the provider shall obtain and retain copies of the following from the defendant:

      (a) Photo identification;

      (b) A copy of the vehicle registration or title containing the VIN of the vehicle designated as primary by the defendant and the names of the operators of the motor vehicle; and

      (c) Consent of the defendant or registered owner to install the device.

      (2)(a)The device shall be inspected or calibrated by technicians designated by the device provider within thirty (30) days of installation and every sixty (60) days thereafter, as established in KRS 189A.420(4)(b).

      (b) A defendant shall have the option to service the device at thirty (30) day intervals following the initial calibration.

      (3) If a defendant fails to have the device inspected or recalibrated as required, the ignition interlock device shall be programmed to enter into a lockout condition, at which time the vehicle shall be required to be returned to the service provider.

      (4) The defendant shall be responsible for costs related to roadside service unless it is determined that the interlock device failed through no fault of the defendant, in which case the device provider shall be responsible for the applicable costs.

      (5) In the event of a violation resulting in an order from the court, the device provider shall remove the device and the cabinet shall suspend the defendant’s ignition interlock license.

      (6) A device provider shall, within ninety-six (96) hours of receipt of the court’s order directing removal of the device, notify the defendant that he or she shall return the vehicle with the installed device for removal.

      (7) If an ignition interlock device is removed for any reason, components of the motor vehicle altered by the installation of the device shall be restored to pre-installed conditions.

 

      Section 7. Provider Suspension, Revocation, Voluntary Facility Closure, or Financial Insolvency. (1) The department shall indefinitely suspend or revoke certification of an ignition interlock device provider for the following:

      (a) A device in use by that provider and previously certified by the cabinet is discontinued by the manufacturer or device provider;

      (b) The device provider’s liability insurance is terminated or cancelled;

      (c) The device provider makes materially false or inaccurate information relating to a device’s performance standards;

      (d) There are defects in design, materials, or workmanship causing repeated failures of a device;

      (e) A device provider fails to fully correct an identified service facility deficiency within thirty (30) days after having been notified by the cabinet or its designee to do so;

      (f) A service provider impedes, interrupts, disrupts, or negatively impacts an investigation or inspection conducted by the cabinet or its designee involving customer service issues, vehicle damage, or a complaint brought by a third party;

      (g) A public safety or client confidentiality issue with an ignition interlock device provider, service facility, or technician is identified;

      (h) A provider becomes insolvent or files for bankruptcy; or

      (i) The device provider requests a voluntary suspension.

      (2)(a) The device provider shall be given thirty (30) days written notice of the existence of one (1) or more of the conditions specified in subsection (1) of this section by letter from the Commissioner of the Department of Vehicle Regulation, served by certified mail, and an opportunity to respond to the allegations or correct the deficiencies within that period.

      (b) The commissioner shall consider the provider’s response or lack of response if deciding to suspend for a period of time or completely revoke the certification of the provider.

      (c) The provider may appeal the commissioner’s decisions pursuant to the provisions of KRS Chapter 13B.

      (3) A device provider subject to revocation shall be responsible for, and bear the costs associated with:

      (a) Providing notice to defendants; and

      (b) The removal of currently installed devices or the installation of a new approved device by a device provider in good standing.

      (4) A provider subject to revocation shall continue to provide services for currently installed devices for a time to be determined by the cabinet, but no longer than ninety (90) days.

      (5) A provider subject to suspension shall continue to provide services for currently installed devices. A new ignition interlock installation shall not be permitted during the period of suspension.

      (6)(a) A provider who terminates certification or goes out of business shall comply with the requirements established in subsection (3) of this section, and shall continue to provide services for currently installed devices for ninety (90) days from the date of the provider’s notification to the cabinet that they will be terminating ignition interlock services.

      (b) A provider who terminates certification or goes out of business shall submit plans for transferring existing defendants to other providers to ensure continuity of service.

      (c) A transfer plan shall be submitted to the cabinet for approval by the commissioner within thirty (30) days of the initial notification of intent to cease operations in the commonwealth.

      (d) The provider shall be solely responsible for notifying defendants with currently installed devices serviced by the provider, and shall be solely responsible for charges related to installation of a device by a new provider.

 

      Section 8. Surrender of Motor Vehicle Registration Plates. (1) A defendant who does not qualify for an ignition interlock license shall surrender his or her license plates pursuant to KRS 189A.085.

      (2) Upon receipt of a request for a vehicle registration inventory from a court, the Transportation Cabinet shall:

      (a) Conduct a search of the automated vehicle information system;

      (b) Identify motor vehicles owned or jointly owned by the person named on the request; and

      (c) Return the results of the search to the court by 12 noon Eastern time, the next working day after the request is received, if the request is received by 12 noon Eastern time. Requests received after 12 noon Eastern time shall be returned to the court by the close of business the second working day after they are received.

      (3) Upon receipt of a court order suspending a licensee's plates, pursuant to KRS 189A.085, the Transportation Cabinet shall suspend the licensee's registration. The cabinet shall not suspend the registration of any person pursuant to KRS 189A.085 unless a court order has been received.

      (4) The court shall return confiscated license plates to the Transportation Cabinet. The cabinet shall bear the responsibility for reasonable postage or shipping costs for the return of confiscated license plates.

      (5) After the motor vehicle registration suspension period has expired, the county clerk shall reissue a motor vehicle registration plate and registration receipt upon the request of the vehicle owner as follows:

      (a) If the registration period of the suspended license plate has not expired, the new registration shall be issued pursuant to KRS 186.180(2); or

      (b) If the suspended license plate has expired, the registration shall be issued as a renewal registration pursuant to KRS 186.050.

 

      Section 9. Incorporation by Reference. (1) The following material is incorporated by reference:

      (a) "Breath Alcohol Ignition Interlock Physician Statement", TC 94-176, August 2015;

      (b) "Certificate of Installation for Ignition Interlock Device", TC 94-177, August 2015;

      (c) "Certificate of Removal for Ignition Interlock Device", TC 94-178, August, 2015; and

      (d) "Ignition Interlock Application", TC 94-175, August 2015.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Transportation Cabinet Building, Department of Highways, 200 Mero Street, Frankfort, Kentucky 40622, Monday through Friday, 8:00 a.m. through 4:30 p.m. This material is also available on the cabinet's Web site at http://drive.ky.gov.[Surrender of Motor Vehicle Registration Plates.     (1) Upon receipt of a request for a vehicle registration inventory from a court, the Transportation Cabinet shall:

      (a) Conduct a search of the automated vehicle information system;

      (b) Identify all motor vehicles owned or jointly owned by the person named on the request; and

      (c) Return the results of the search to the court by 12 noon Eastern time, the next working day after the request is received, provided the request is received by 12 noon Eastern time. Requests received after 12 noon Eastern time shall be returned to the court by the close of business the second working day after they are received.

      (2) Upon receipt of a court order suspending a licensee's plates, pursuant to KRS 189A.085, the Transportation Cabinet shall suspend the licensee's registration. The cabinet shall not suspend the registration of any person pursuant to KRS 189A.085 unless a court order has been received.

      (3) The court shall return all confiscated license plates to the Transportation Cabinet. The cabinet shall bear the responsibility for reasonable postage or shipping costs for the return of all confiscated license plates.

      (4) After the motor vehicle registration suspension period has expired, the county clerk shall reissue a motor vehicle registration plate and registration receipt upon the request of the vehicle owner as follows:

      (a) If the registration period of the suspended license plate has not expired, the new registration shall be issued pursuant to KRS 186.180(2); or

      (b) If the suspended license plate has expired, the registration shall be issued as a renewal registration pursuant to KRS 186.050.

 

      Section 2. Breath Alcohol Ignition Interlock Device. (1) An ignition interlock device, installed pursuant to court order shall meet the following criteria:

      (a) The ignition interlock device shall be designed and constructed to measure a person's breath alcohol concentration, as defined in KRS 189A.005(1), by utilizing a sample of the person's breath delivered directly into the device;

      (b) The ignition interlock device shall be designed and constructed so that the ignition system of the vehicle in which it is installed will not be activated if the alcohol concentration of the operator's breath exceeds .02 alcohol concentration as defined in KRS 189A.005(1);

      (c) The ignition interlock device shall meet or exceed performance standards contained in the Model Specifications for Breath Alcohol Ignition Interlock Devices (BAIIDS), as published in 57 FR 11772-11787 (April 7, 1992);

      (d) The ignition interlock device shall prevent engine ignition if the device has not been calibrated within a period of ninety-seven (97) days subsequent to the last calibration;

      (e) The ignition interlock device shall:

      1. Record each time the vehicle is started;

      2. Record results of the alcohol concentration test;

      3. Record how long the vehicle is operated; and

      4. Detect any indications of bypassing or tampering with the device;

      (f) The ignition interlock device shall permit a sample free restart for a period of two (2) minutes or less after a stall;

      (g) The ignition interlock device shall require:

      1. That the operator of the vehicle submit to a retest within ten (10) minutes of starting the vehicle;

      2. That retests continue at intervals not to exceed sixty (60) minutes after the first retest;

      3. That retests occur during operation of the vehicle; and

      4. That the device enter a lockout condition in five (5) days if a retest is not performed or the results of the test exceeds the maximum allowable alcohol concentration;

      (h) The ignition interlock device shall be equipped with a method of immediately notifying peace officers:

      1. If the retest is not performed; or

      2. If the results exceed the maximum allowable alcohol concentration; and

      (i) The ignition interlock device shall include instructions recommending a fifteen (15) minute waiting period between the last drink of an alcoholic beverage and the time of breath sample delivery into the device.

      (2) An ignition interlock device shall be:

      (a) Installed by the manufacturer or by private sector installers in conformance with the prescribed procedures of the manufacturer; and

      (b) Be used in accordance with the manufacturer's instructions.

      (3)(a) An ignition interlock device shall be calibrated at least once every ninety (90) days to maintain the device in proper working order.

      (b) The manufacturer or installer shall calibrate the device or exchange the installed device for another calibrated device in lieu of calibration.

      (c) The record of installation and calibration shall be kept in the vehicle at all times for inspection by a peace officer and shall include the following information:

      1. Name of the person performing the installation and calibration;

      2. Dates of activity;

      3. Value and type of standard used;

      4. Unit type and identification number of the ignition interlock device checked; and

      5. Description of the vehicle in which the ignition interlock device is installed, including the registration plate number and state, make, model, vehicle identification number, year and color.

      4) An ignition interlock device in a lockout condition shall be returned to the site of installation for service.

 

      Section 3. Division of Driver Licensing Requirements. (1) The Division of Driver Licensing shall maintain a list of all manufacturers of ignition interlock devices meeting the requirements of this administrative regulation who have provided documentation to the division confirming that they offer appropriate ignition interlock devices and related services within the Commonwealth.

      (2) The list of manufacturers who provide appropriate devices, approved installers, and servicing and monitoring entities shall be published and periodically updated by the Division of Driver Licensing on the Transportation Cabinet Web site.

      (3) The Division of Driver Licensing shall provide a notation on the face of the operator's license stating that:

      (a) The licensee is required by order of the court to be using a vehicle with an ignition interlock device; and

      (b) The license has been granted an exception for employment purposes pursuant to KRS 189A.340, if granted by the court.

      (4) Manufacturers, installers, and servicing and monitoring entities shall apply to the Division of Driver Licensing for approval and placement on the list maintained by the cabinet.

 

      Section 4. Incorporation by Reference. (1) Model Specifications for Breath Alcohol Ignition Interlock Devices (BAIIDS), 57 FR 11772-11787 (April 7, 1992), 40 pages, is incorporated by reference.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Transportation Cabinet, Division of Driver Licensing, 2nd Floor, State Office Building, 501 High Street, Frankfort, Kentucky 40622, Monday through Friday, 8 a.m. to 4:30 p.m.]

 

GREG THOMAS, Acting Secretary

RODNEY KUHL, Commissioner

D. ANN DANGELO, Office of Legal Services

      APPROVED BY AGENCY: March 17, 2016

      FILED WITH LRC: March 29, 2016 at 3 p.m.

      PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on May 27, 2016 at 10:00 a.m. local time at the Transportation Cabinet, Transportation Cabinet Building, Hearing Room C121, 200 Mero Street, Frankfort, Kentucky 40622. Individuals interested in being heard at this hearing shall notify this agency in writing five (5) working days prior to the hearing, of their intent to attend. If you have a disability for which the Transportation Cabinet needs to provide accommodations, please notify us of your requirement five working days prior to the hearing. This request does not have to be in writing. If no notification of intent to attend the hearing is received by that date, the hearing may be cancelled. This hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until the end of the calendar day (11:59 p.m.) on May 31, 2016. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.

      CONTACT PERSON: D. Ann Dangelo, Asst. General Counsel, Transportation Cabinet, Office of Legal Services, 200 Mero Street, Frankfort, Kentucky 40622, phone [phone], fax [phone].

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Person: Ann DAngelo

      (1) Provide a brief summary of:

      (a) What this administrative regulation does: This administrative regulation establishes the requirements for the administration and implementation of the ignition interlock program.

      (b) The necessity of this administrative regulation: This administrative regulation is required by KRS 189A.500.

      (c) How this administrative regulation conforms to the content of the authorizing statutes: This administrative regulation establishes forms, creates a uniform certificate of installation for ignition interlock devices, certifies the devices approved for use in the Commonwealth, and creates an ignition interlock license to be issued upon court approval.

      (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation will establish the regulatory requirements of KRS 189A.500.

      (2) If this is an amendment to an existing administrative regulation, provide a brief summary: This regulation will amend and replace 601 KAR 2:030, the current ignition interlock administrative regulation.

      (a) How the amendment will change this existing administrative regulation: These amendments remove the definition for "permanent lockout"; require a provider to contact the county attorney and cabinet after ten (10) days' notice to the defendant and before removal of a device; remove the requirement for a provider to contact the cabinet within fifteen (15) days of an investigation; require the provider to retain records for five (5) years from the date the ignition interlock device is removed; ensure that the Certificate of Installation form is not readily available on the Web site; remove the obligation for a provider to verify insurance policy and expiration date; allow a defendant to return a vehicle to the service provider rather than the site of installation; and permit ninety-six (96) hours from receipt of court order to notify the defendant.

      (b) The necessity of the amendment to this administrative regulation: These amendments are made in response to public hearing and written comments.

      (c) How the amendment conforms to the content of the authorizing statutes: This administrative regulation establishes forms, creates a uniform certificate of installation for ignition interlock devices, certifies the devices approved for use in the Commonwealth, and creates an ignition interlock license to be issued upon court approval.

      (d) How the amendment will assist in the effective administration of the statutes: These amendments will clarify provisions in the current administrative regulation

      (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: This administrative regulation will affect: companies desiring to provide ignition interlock devices and services within Kentucky; motor vehicle drivers who violate KRS 189A.010 (defendants); the cabinet's Division of Drivers Licensing within the Division of Vehicle Regulation; circuit clerks, and the Administrative Office of the Courts.

      (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

      (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Companies desiring to provide ignition interlock devices and services will apply to the cabinet for device certification and authorization; defendants will apply for both the ignition interlock device and authorization to operate with an ignition interlock license pursuant to court order; divisions within the department will approve and process the application forms; and circuit clerks will issue the ignition interlock licenses.

      (b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): Defendants will pay device and servicing fees pursuant to KRS 189A.500, and an application fee in the amount of $105 pursuant to KRS 189A.420(6).

      (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): If eligible pursuant to KRS chapter 186, defendants will be approved to drive with an Ignition Interlock license; businesses desiring to provide Ignition Interlock devices and services will be granted certification for devices and authority to provide services.

      (5): Provide an estimate of how much it will cost the administrative body to implement the administrative regulation:

      (a) Initially: Inspections, mailing of documents and staff time necessary to begin processing applications is estimated at $525,000.

      (b) On a continuing basis: $105 per defendant and up to approximately $525,000 annually.

      (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: Initially FHWA – Hazard Elimination Fund. There is presently no appropriation in place to administer or enforce this program.

      (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: An appropriation will be needed to maintain this program.

      (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: The administrative fees created herein are pursuant to statute to offset any costs KYTC.

      (9) TIERING: Is tiering applied? No tiering is required for device providers. All device providers meeting or exceeding the qualifications will be treated the same. Tiering for defendants in this program is pursuant to statute and judicially determined indigency status.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

      (1) What units, parts, or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? KYTC Department of Vehicle Regulation, Division of Driver Licensing, the Circuit Clerks, Administrative Office of the Courts, County Attorneys.

      (2) Identify each state or federal statute or federal regulation that requires or authorizes the

action taken by the administrative regulation. KRS 189A.500(1)(f).

      (3) Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect. For local government, costs should be minimal as the process is judicially driven and the regulatory actions will be performed within the context of DUI prosecutions.

      (a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? This administrative regulation is not expected to generate revenue.

      (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? This administrative regulation is not expected to generate revenue.

      (c) How much will it cost to administer this program for the first year? Up to approximately $525,000.

      (d) How much will it cost to administer this program for subsequent years? Unknown.

      Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

      Revenues (+/-): No revenues will be generated by this program.

      Expenditures (+/-): Additional programming to the driver licensing system will need to be implemented. The cost is unknown.

      Other Explanation: The cabinet is unsure precisely how many defendants will move for eligibility under this program and whether efficiencies can be achieved if they do.

Notation

      RELATES TO: KRS 45A, 186.010, 186.440, 186.442, 186.480, 186.531, 186.560, 186.570, 189A.005, 189A.010, 189A.040, 189A.070, 189A.085, 189A.090, 189A.103, 189A.105, 189A.107, 189A.200, 189A.240, 189A.250, 189A.340, 189A.345, 189A.400, 189A.410, 189A.420, 189A.440, 189A.500, 205.712, 18 U.S.C. 2721[57 C.F.R. 11772-11787]

      STATUTORY AUTHORITY: KRS 189A.500[189A.085(1)(b), 189A.340(4)(f)]

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 189A.500 requires the Transportation Cabinet to promulgate administrative regulations to carry out provisions regarding the implementation of the commonwealth’s ignition interlock program for motor vehicle drivers who violate KRS 189A.010. This administrative regulation establishes the duties and responsibilities of ignition interlock device providers wishing to enter into an agreement with the Commonwealth of Kentucky and the Transportation Cabinet for the administration and implementation of the ignition interlock device program and requirements for certifying ignition interlock devices under this program. This administrative regulation also establishes the requirements for a defendant charged with a violation of KRS 189.010 to obtain an ignition interlock device and license[KRS 189A.085 states that, after a license plate suspension by a judge pursuant to that provision, the circuit court clerk shall transmit surrendered plates to the Transportation Cabinet in the manner set forth by the Transportation Cabinet in administrative regulation. KRS 189A.340(4)(f) states that the Transportation Cabinet shall promulgate administrative regulations to carry out the provisions of that subsection regarding interlock devices. This administrative regulation outlines the procedure for surrendering plates to the Transportation Cabinet pursuant to court order, providing registration information on a convicted violator to the court, approving interlock device manufacturers, installers, and servicing entities and making an approved list available to the public].