CJS-25-16-00004-P Handling of Ignition Interlock Cases Involving Certain Criminal Offenders

6/22/16 N.Y. St. Reg. CJS-25-16-00004-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 25

June 22, 2016

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CJS-25-16-00004-P

Handling of Ignition Interlock Cases Involving Certain Criminal Offenders

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of sections 358.1-358.3, 358.4(a), (c), (d) and 358.5-358.8 of Title 9 NYCRR.

Statutory authority:

Vehicle and Traffic Law, sections 1193(1)(g) and 1198(5)(a); L. 2009, ch. 496

Subject:

Handling of Ignition Interlock Cases Involving Certain Criminal Offenders.

Purpose:

To promote public/traffic safety, offender accountability and quality assurance through the establishment of minimum standards.

Substance of proposed rule (Full text is posted at the following State website:www.dcjs.ny.gov ):

These proposed amendments make substantive and technical changes to the Division of Criminal Justice Services rule, entitled “Handling of Ignition Interlock Cases Involving Certain Criminal Offenders”. Overall, it updates, clarifies, and strengthens regulatory provisions to better enhance public/traffic safety, achieve greater offender accountability, and guarantee quality assurance with respect to Ignition Interlock Device (IID) program service delivery.

Rule Sections 358.1 and 358.2 are amended to update the objectives and applicability regulatory language to reflect recent statutory changes.

Rule Section 358.3 governing definitions, is amended to refine and/or reinforce certain definitional terms. Two new definitions of “Emergency Notification Program” and “real time reporting” are also added to reflect new programmatic features which are now operational.

Several proposed amendments are made to Rule Section 358.4 governing Ignition Interlock Program Plans. Plan content is updated to incorporate recent statutory changes as to imposition of IIDs in advance of sentencing and to better ensure that plans reflect handling of interim probation supervision cases. Additional proposed language will facilitate timely notification procedures to monitors where a court approves reduction in a breath sample in accordance with new regulatory provisions.

Rule Section 358.5, governing the Approval Process and Responsibilities of Qualified Manufacturers, is amended with respect to application procedures, including but not limited to, updating outdated language, and establishing parameters surrounding open application process and contractual term to promote consistency. Other proposed changes are sought to achieve greater offender and service delivery accountability. For example, new reporting language is proposed with respect to test results to better guarantee serious failed tests by operators are timely reported. Other changes strengthen provisions to establish timely DCJS notification of significant operational service delivery problems. Significantly, a new regulatory provision establishes a mechanism consistent with National Highway Traffic Safety Administration standards which will permit court authorization of a reduced breath sample for certain operators with certain health issues which prevent them from regular operational usage of the IID.

Rule Section 358.6 governing cancellation, suspension, and revocation of qualified manufacturers, installation and service providers and IIDs, is modified to clarify that verbal and/or written notification or communication of disapproval, suspension in whole or in part, of revocation or cancellation of a manufacturer’s device, services, and/or operations by another state or jurisdiction, may result in revocation of a certified IID or suspension or removal of a qualified manufacturer or installation/service provider in New York State.

Proposed changes to Rule Section 358.7 governing monitoring and Rule Section 358.9 governing installation and costs, would update these regulatory provisions to reflect recent statutory changes and reference interim probation supervision. Additionally, Rule Section 358.7 sets forth revised intrastate and interstate monitoring procedures to establish that for intrastate conditional discharge cases, the sentencing county monitor shall contact the monitor in the county of residence to determine the class of IID available and the sentencing county monitor shall perform monitor services. Further where there is an Emergency Notification Program, the monitor shall notify the IID Manufacturer so that the designated law enforcement agency within the county of residence shall receive all applicable communications/notifications. Further, where an IID is to be imposed in advance of sentencing, the monitor in the county of residence is to be similarly contacted by the monitor in the county where the court orders installation to determine the specific class and features of the IID available and an identical procedure will be required for Emergency Notification Programming in the county of residence. With respect to interstate transfer, regulatory language is streamlined.

Among proposed regulatory changes are the following:

• Reflects the imposition and monitoring of IIDs installed in conjunction with interim probation supervision and in cases prior to sentencing pursuant to a court order.

• Clarifies that the period of IID restriction will commence from the earlier of the date of sentencing, or the date of installation in advance of sentencing and that a court may not authorize the operation of a motor vehicle by any individual whose license or privilege to operate a motor vehicle has been revoked.

• Establishes that monitors select the class and features of IIDs available from an available manufacturer in the region where an operator resides.

• Requires that the applicable monitor coordinate monitoring with the NYS Department of Corrections and Community Supervision (DOCCS) where the operator is under DOCCS supervision and promptly provide such agency with reports of any failed tasks or failed reports.

• Requires a court authorization for a reduction in breath sample to be consistent with NHTSA requirements and that every county plan establishes a procedure whereby the probation department and any other monitor be notified no later than five (5) business days from any such court approval.

• Requires all jurisdictions to submit an IID plan reflective of all operators who may be subject to IID installation and maintenance with monitoring ordered by a court in advance of sentencing or at sentencing, and to make modifications or updates, as required by DCJS. DCJS has required since 2014 that plans have procedures in this area and to amend plans to be consistent with law and regulatory provisions.

• Clarifies recent statutory changes to better ensure that youth adjudicated as Youthful Offenders of DWI and/or other alcohol related offenses are subject to IID installation and related compliance provisions.

• Clarifies recent statutory change that affected operators provide proof of installation compliance with the IID requirement to the court and the applicable monitor where such person is under probation or conditional discharge supervision.

• Requires that manufacturers:

o Provide documentation and verification of their respective Standby Letter of Credit (SLOC) as specified in the manufacturer’s contract with New York State;

o The SLOC was previously incorporated in DCJS 2013 contracts with manufacturers;

o Adhere to any county plan real time reporting and emergency notification program requirements;

o Report a failed test or re-test where the BAC is.05 percent or higher; and provide immediate written notice to DCJS and the DOH whenever their IID devices, services, and/or operations has been compromised or does not function as or any other state or jurisdiction or disapproved or suspended in whole or in part, revoked or otherwise cancelled by another state or jurisdiction or has received notice or communication from another state or jurisdiction that any such actions are imminent.

Additionally, as existing DOH regulations require prior approval with respect to any operational modification of IIDs, new regulatory language reiterates this requirement and for any manufacturer to provide necessary documentation to DOH and that any such manufacturer notify DCJS of any intent to do so and provide a written summary of any requested or approved modification.

Text of proposed rule and any required statements and analyses may be obtained from:

Linda J. Valenti, Assistant Counsel, New York State Division of Criminal Justice Services, Alfred E. Smith Office Building, Room 832, 80 South Swan Street, Albany, NY 12210, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority:

Chapter 496 of the Laws of 2009, commonly referred to as Leandra’s Law was a groundbreaking measure which strengthened various laws specifically relative to driving while intoxicated (DWI) or while impaired by drugs. The purpose of the law was to achieve greater offender accountability, promote public safety, combat and deter drunk driving, and better safeguard the welfare of child passengers. Among its provisions were requirements of rulemaking to the former Division of Probation and Correctional Alternatives, which was merged in 2010 with the Division of Criminal Justice Services (DCJS). Specifically, pursuant to Vehicle and Traffic Law (VTL) § 1193(1)(g) DCJS is responsible for promulgating regulations governing the monitoring of compliance by persons ordered to install and maintain ignition interlock devices to provide standards for monitoring by probation departments, and options for monitoring of compliance by such persons, that counties may adopt as an alternative to monitoring by a probation department. Further, VTL § 1198(5)(a) establishes that in the event of a court waiving the cost of any operator subject to the Leandra’s Law requirement of installation and maintenance of an ignition interlock device (IID), “the cost of the device shall be borne in accordance with regulations issued [by DCJS] …or pursuant to such other agreement as may be entered into for provision of the device.”

2. Legislative objectives:

The proposed rule amendments serves both the Governor’s and the Legislature’s underlying objective of “Leandra’s Law” and its subsequent amendment, Chapter 169 of the Laws of 2013, to further strengthen DWI laws and penalties through statewide implementation of IID conditions so as to better enhance public/traffic safety, achieve greater offender accountability, and guarantee quality assurance through the establishment of minimum standards for the usage and monitoring of IIDs following a conviction of or adjudication as a Youthful Offender arising from a violation of VTL § 1192(2), (2-a), (3) or any crime defined by the VTL or Penal Law of which an alcohol-related violation of any provision of § 1192 is an essential element, or where ordered by a court in advance of sentence following an individual’s arrest for one of the specified offenses.

3. Needs and benefits:

Rule amendments are necessary to reflect Chapter 169 of the Laws of 2013, as well as to incorporate particular changes of the revised National Highway Traffic Safety Administration (NHTSA) specifications for IIDs, and achieve certain operational refinements deemed appropriate following programmatic experience.

The proposed regulatory changes are beneficial to better safeguard the public, optimize traffic safety, and to promote greater offender and service delivery accountability.

4. Costs:

a. DCJS does not anticipate that proposed rule revisions will result in any additional costs to local government. The proposed regulatory changes continue to allow each jurisdiction with the flexibility to choose one or more persons or entities responsible for monitoring conditional discharge cases where a defendant has been required to install and maintain a functioning IID in any vehicle which they own or operate and affords the same flexibility as to cases involving individuals who agree or are ordered to install and maintain an IID in advance of sentencing. Notably, DCJS has annually applied for and received grant funding from 2010-- 2015 from the NYS Governor’s Traffic Safety Committee (GTSC) totaling three (3) million dollars annually in NHTSA monies to offset local government costs in performing monitoring services. DCJS currently distributes monies to the localities pursuant to a formula based on statistics of 2013 DWI conviction rates and is unaware of any local government concerns with this formula. While DCJS has recently received approval of 2.8 million dollars for Federal fiscal year 2016, this reduced amount should not result in cuts as there have been unexpended monies in prior years.

The revised regulation is not expected to result in any additional costs to three of the four qualified manufacturers, nor to their installation/service providers. One manufacturer, CST/Intoxalock, may have additional expenses as well as additional income as a result of operators having to visit their installation/service providers rather than the past practice of mailing in the handsets without service visits. This practice prevented monthly inspection of the IID installation and the opportunity for technicians to detect any attempted tampering or circumvention by the operator, allowing for a potential public safety risk.

In accordance with existing regulations, all manufacturers applied for undertaking IID service delivery in conformity with NYS statutory and regulatory provisions. DCJS has contracts with all manufacturers as to operational performance and approve their maximum fee/charge schedule which takes into account a 10% fee waiver cost.

Existing statutory and regulatory provisions govern IID costs. Amendments do not change provisions in this area. Statutorily, where a court, determines financial “unaffordability”, it may impose a payment plan or waive the fee. Where waived, jurisdictions have established a procedure whereby costs are proportionately borne among manufacturers utilized at the local level.

b. Through grant funding received from GTSC, DCJS employs a full-time Community Correction Representative 2 assigned to the IID program. DCJS as noted earlier has received a GTSC award of NHTSA monies to offset any monitor costs of local government incurred. DCJS does not anticipate additional state and/or local costs from proposed revisions.

5. Local government mandates:

The existing rule established that every jurisdiction must submit for DCJS approval an ignition interlock plan for monitoring the use of IIDs. This revised rule states that a county may submit an amended plan on its own initiative; and that DCJS may require modifications or updates as it deems necessary to be consistent with law or regulatory provisions. In 2014, DCJS requested that localities submit amended IID Plans to reflect any changes which may have occurred since the filing of the original plans, including those resulting from aforementioned Chapter 169. The County Plan content is straightforward, simple, and largely prescriptive to ease any burden on localities. Monitoring functions associated with IID operators are statutorily required. DCJS’ rule and proposed amendments have been carefully streamlined to afford considerable flexibility, yet require swift and certain court and district attorney notification as to certain failed tasks and failed tests. Additionally, it places specific responsibilities upon qualified manufacturers, installation/service providers, as well as operators to provide timely information and/or reports to monitors so as to assist them in managing their caseload.

6. Paperwork:

As noted above, this revised rule clarifies that jurisdictions may submit an amended County IID Plan on its own initiative; and that DCJS may require modifications or updates as it deems necessary to be consistent with law or regulatory provisions. As part of receiving Federal award monies, DCJS requires and jurisdictions agree to have their monitors provide quarterly statistical information regarding IID program operations to DCJS. These statistical reports can be automatically generated by probation departments which use the Caseload Explorer system; 55 are using the Caseload Explorer System at this time and template reporting forms are available for the remaining monitors.

IID Manufacturers wishing to conduct business in NYS are required to apply to DCJS through a standardized application format. Currently four manufacturers have contracts with DCJS. DCJS will consider the applications of any additional interested manufacturers. Statutorily, such manufacturers must have their IIDs certified by the Department of Health (DOH). Other data reporting requirements imposed upon qualified manufacturers and installation/service providers are routine business activities and essential to offender accountability and community safety. DCJS, in conjunction with the Department of Motor Vehicles and Office of Court Administration, and other partners, has developed approximately fifteen (15) reporting forms to facilitate exchange of information and promote consistency, which greatly benefit all jurisdictions in program implementation and compliance. The Financial Disclosure Report is available in both English and Spanish.

7. Duplication:

While DOH certifies IIDs, this revision does not duplicate any other existing State or Federal requirements.

8. Alternatives:

This proposal takes into account changes in law, and NHTSA standards, and certain other refinements which can only be accomplished through revising the existing regulation. In developing the proposal, DCJS considered feedback provided by the localities, qualified manufacturers, and other state and local entities. Additionally DCJS distributed an earlier rule proposal and made additional revisions based on feedback received from stakeholders to address certain operational issues raised. This proposal was reviewed and discussed by the Probation Commission at its meeting in May 2015. Overall, DCJS received positive support as to proposed regulatory changes.

9. Federal standards:

There are no federal standards governing the monitoring of offenders ordered to use an IID Notably, NHTSA published final updated Model Specifications for Breath Alcohol IIDs and this rule requires that any IID used meets these revised Specifications. As NYS law requires monitoring and DOH regulations require manufacturers with DOH approved certified IIDs satisfy DCJS regulations, it is necessary that DCJS’ rule and proposed amendments be more comprehensive than Federal specifications, which are guidelines for the performance and uniform testing of IIDs.

10. Compliance schedule:

In light of DCJS previously disseminating proposed regulatory changes to all affected parties, positive feedback received, and that revisions are not substantial in nature, DCJS anticipates a 90 day maximum time from adoption to rule amendments becoming effective.

Regulatory Flexibility Analysis

1. Effect of rule:

These proposed regulatory amendments affect every county and the city of New York, qualified ignition interlock manufacturers doing business in New York State (NYS), their approved installation/service providers. There are four (4) approved Ignition Interlock Device (IID) manufacturers which also have contracts with the Division of Criminal Justice Services (DCJS) to provide services throughout NYS. Under existing DCJS rule, specifically 9 NYCRR Part 358, additional manufacturers could enter into agreements through an open and continuous application, receiving certification of their IIDs by the Department of Health (DOH), and adherence to applicable regulatory requirements. As of October 2015, there are approximately 200 approved installation/service providers in NYS.

2. Compliance requirements:

The existing rule implemented Chapter 469 of the Laws of 2009, commonly referred to as ”Leandra’s Law”, provides for the monitoring of the use of court-ordered IIDs ordered upon defendants sentenced for a DWI misdemeanor or felony. It also established various reporting, recordkeeping, and other compliance requirements. The proposed regulatory amendments, (i) make minor modifications to incorporate certain statutory changes resulting from enactment of Chapter 169 of the Laws of 2013, (ii) establishes parameters with respect to reduced breath samples for certain operators and testing requirements consistent with revised National Highway Traffic Safety Administration (NHTSA) Breath Alcohol IID Model Specifications, (iii) makes limited revisions to improve program integrity and operational acceptability based on the experience of the field since implementation of the original rule, and (iv) addresses service delivery and individual accountability issues which have arisen. Among proposed regulatory changes are the following:

• Reflects the imposition and monitoring of IIDs installed in conjunction with interim probation supervision and in cases prior to sentencing pursuant to a court order.

• Clarifies that the period of IID restriction will commence from the earlier of the date of sentencing, or the date of installation in advance of sentencing and that a court may not authorize the operation of a motor vehicle by any individual whose license or privilege to operate a motor vehicle has been revoked.

• Establishes that monitors select the class and features of IIDs available from an available manufacturer in the region where an operator resides.

• Requires that the applicable monitor coordinate monitoring with the NYS Department of Corrections and Community Supervision (DOCCS) where the operator is under DOCCS supervision and promptly provide such agency with reports of any failed tasks or failed reports.

• Requires a court authorization for a reduction in breath sample to be consistent with NHTSA requirements and that every county plan establishes a procedure whereby the probation department and any other monitor be notified no later than five (5) business days from any such court approval.

• Requires all jurisdictions to submit an IID plan reflective of all operators who may be subject to IID installation and maintenance with monitoring ordered by a court in advance of sentencing or at sentencing, and to make modifications or updates, as required by DCJS. DCJS has required since 2014 that plans have procedures in this area and to amend plans to be consistent with law and regulatory provisions.

• Clarifies recent statutory changes to better ensure that youth adjudicated as Youthful Offenders of DWI and/or other alcohol related offenses are subject to IID installation and related compliance provisions.

• Clarifies recent statutory change that affected operators provide proof of installation compliance with the IID requirement to the court and the applicable monitor where such person is under probation or conditional discharge supervision.

• Requires manufacturers:

o Provide documentation and verification of their respective Standby Letter of Credit (SLOC) as specified in the manufacturer’s contract with New York State;

o The SLOC was previously incorporated in DCJS 2013 contracts with manufacturers;

o Adhere to any county plan real time reporting and emergency notification program requirements;

o Report a failed test or re-test where the BAC is.05 percent or higher; and provide immediate written notice to DCJS and the DOH whenever their IID devices, services, or any other state or jurisdiction or disapproved or suspended in whole or in part, revoked or otherwise cancelled by another state or jurisdiction or has received notice or communication from another state or jurisdiction that any such actions are imminent.

Additionally, as existing DOH regulations require prior approval with respect to any operational modification of IIDs, new regulatory language reiterates this requirement and for any manufacturer to provide necessary documentation to DOH and that any such manufacturer notify DCJS of any intent to do so and provide a written summary of any requested or approved modification.

3. Professional services:

It is not anticipated that any professional services will be required to comply with the proposed regulatory changes.

4. Compliance costs:

DCJS does not anticipate that the proposed rule revisions will result in any additional costs to local governments or small businesses. The proposed regulatory changes continue to allow each jurisdiction with the flexibility to choose one or more persons or entities responsible for monitoring conditional discharge cases where a defendant has been required to install and maintain a functioning IID in any vehicle which they own or operate. It also affords the same flexibility to cases involving individuals who agree, or are ordered, to install and maintain an IID in advance of sentencing. DCJS has annually applied for and received grant funding from 2010- 2015 from the NYS Governor’s Traffic Safety Committee (GTSC) totaling three (3) million dollars annually in NHTSA monies to offset local government costs in performing monitoring services. DCJS currently distributes monies to the localities pursuant to a formula based on statistics of 2013 DWI conviction rates and is unaware of any local government concerns with this formula. While DCJS has recently received approval of 2.8 million dollars for Federal fiscal year 2016, this reduced amount should not result in cuts as there have been unexpended monies in prior years that roll over.

Effective May, 8, 2014, NHTSA implemented revised Breath Alcohol IID Model Specifications refining performance criteria and test methods for IIDs. NHTSA encourages States to determine how best to implement these Model Specifications to strengthen the quality of IIDs used and therefore each qualified manufacturer has submitted updated certifications regarding devices in use in New York.

There may be limited additional costs to one of the four qualified manufacturers, in that it will now require all operators with any IIDS to undergo service visits on a monthly basis through an operator service visit. Under NYS law, unless a court waives the IID cost upon an operator who claims inability to pay, the cost is borne by the operator. Previously, such operators removed and mailed the IID “data-head” to the IID manufacturer monthly. This practice prevented monthly inspection of the IID installation and the opportunity for technicians to detect any attempted tampering or circumvention by the operator, allowing for a potential public safety risk.

5. Economic and technological feasibility:

Proposed amendments do not require any additional technological requirements beyond those currently being utilized in NYS.

As of November 1, 2013, DCJS revised IID classification system requires that all Class 1, 2, and 3 devices to include the integration of a camera. This change was made effective prospectively with the installation of new devices. Additionally, many monitoring entities require Class II devices with advanced features of Global Positioning System (GPS) location of a vehicle and Real Time Reporting (RTR). The Rule amendments propose a new RTR definition to mean the contemporaneous transmission of data of particular events, as defined in Rule Section 358.5(c) (6), to a specified monitoring entity as the event occurs or as soon as cellular reception permits. Lastly, four counties require Class III devices, which have all the minimum required features of Classes I (camera) and II (GPS and RTR), also contain an emergency notification feature. Accordingly, proposed amendments include a new definitional term “Emergency Notification Program”.

6. Minimizing adverse impact:

DCJS does not anticipate that the proposed changes, which among its provisions revises or adds regulatory language to be consistent with Chapter 169 of the Laws of 2013, and current NHTSA specifications of IIDs, will have any adverse impact on local governments or small businesses. DCJS remains steadfast in its efforts to minimize adverse impact of the existing rule and any proposed changes upon local government, and has considered IID manufacturers input in crafting amendments to ensure any changes do not adversely impact service delivery or increase costs.

Since 2010 DCJS has annually submitted applications and been awarded grants from GTSC of NHTSA monies to offset local government costs in performing monitoring services. The existing and proposed revised rule language have both been crafted to offer guidance and structure in plan development and implementation. Other features with respect to monitoring continue to afford considerable flexibility as to particular actions where feasible, yet ensure swift and certain action where necessary to achieve uniformity in the handling of certain failed tasks and failed tests, safeguard the public, and better guarantee offender accountability. The proposed regulatory revisions retain several regulatory provisions as to operator responsibility to assist the judiciary’s consideration of financial “unaffordability” and minimize unnecessary waivers, and to ensure operators convey timely information to monitors, the courts, and installation/service providers. Further, the proposed regulatory amendments contains language that in the event of judicial waiver of an operator’s IID cost, a manufacturer designated by the monitor bears the costs associated with installation and maintenance of the IID.

While DCJS regulatory language establishes that IID qualified manufacturers may elect to do business in one, two, three, or all four regions of NYS, all of the IID manufacturers have elected to do business throughout NYS. Rural and non-rural counties exist in three regions and proposed regulatory revisions do not alter the requirement that a manufacturer must be able to do business with all other counties within the region upon the same favorable terms which guarantee service availability of installation/service providers within 50 miles of any operators’ residence statewide. Notably, operator IID costs do not vary from region to region.

DCJS continues to make model forms available which assist jurisdictions in application of Leandra’s Law and its amendments. These forms are of particular assistance to those rural counties with limited staff resources to undertake form development independently. These forms also have been disseminated to all courts by the Office of Court Administration.

7. Small business and local government participation:

The existing rule was developed with the input of a workgroup which included local government representation. DCJS has considered feedback on the existing rule since its implementation provided by qualified manufacturers, and local jurisdictions, including county IID monitors. Opportunities for feedback included regular communications with qualified manufacturers, involving quarterly conference calls with the manufacturers and an annual manufacturers’ conference hosted by DCJS. The annual conference has been attended by both manufacturers and probation/CD monitoring agencies. Additionally, DCJS has communicated on the existing rule and proposed changes with local probation departments during probation professional association meetings and conferences. DCJS (i) discussed the proposed revisions with the NYS Probation Commission on May 19, 2015, (ii) distributed a draft copy of the proposed revision to all Probation Directors and CD Monitors and all qualified manufacturers, (iii) discussed the proposed revisions with qualified manufacturers, probation and CD monitors, and other interested State and local entities at the Annual IID Manufacturers Conference held on July 9-10, 2015, and (iv) made additional revisions based on feedback received from these stakeholders to address certain service delivery issues raised. Overall, feedback was positive as to proposed regulatory changes.

Rural Area Flexibility Analysis

1. Types and estimated number of rural areas:

Forty-three (43) of the 57 local probation departments outside of New York City are located in rural areas and will be affected by the proposed revised rule.

2. Reporting, recordkeeping, and other compliance requirements, and professional services:

The existing rule implemented Chapter 469 of the Laws of 2009, commonly referred to as ”Leandra’s Law”, in relation to the monitoring of the use of court-ordered ignition interlock devices (IIDs) ordered upon defendants sentenced for a DWI misdemeanor or felony. It established various reporting, recordkeeping, and other compliance requirements. The proposed regulatory amendments make minor modifications to incorporate certain statutory changes resulting from enactment of Chapter 169 of the Laws of 2013, establishes parameters with respect to reduced breath samples for certain operators consistent with revised National Highway Traffic Safety Administration (NHTSA) Breath Alcohol Ignition Interlock Device Model Specifications, as well as limited revisions to improve practice based on the experience of the field since implementation of the original rule as well as address program and individual accountability issues which have arisen. Among proposed regulatory changes are the following:

• Reflects the imposition and monitoring of IIDs installed in conjunction with interim probation supervision and in cases prior to sentencing pursuant to a court order.

• Clarifies that the period of IID restriction will commence from the earlier of the date of sentencing, or the date of installation in advance of sentencing and that a court may not authorize the operation of a motor vehicle by any individual whose license or privilege to operate a motor vehicle has been revoked.

• Establishes that monitors select the class and features of IIDs available from an available manufacturer in the region where an operator resides.

• Requires that the applicable monitor coordinate monitoring with the NYS Department of Corrections and Community Supervision (DOCCS) where the operator is under DOCCS supervision and promptly provide such agency with reports of any failed tasks or failed reports.

• Requires a court authorization for a reduction in breath sample to be consistent with NHTSA requirements and that every county plan establish a procedure whereby the probation department and any other monitor be notified no later than five (5) business days from any such court approval.

• Requires all jurisdictions to submit an IID plan reflective of all operators who may be subject to IID installation and maintenance with monitoring ordered by a court in advance of sentencing or at sentencing, and to make modifications or updates, as required by DCJS. Since 2014 DCJS has required that plans have procedures in this area and to amend plans to be consistent with law and regulatory provisions.

• Clarifies recent statutory changes to better ensure that youth adjudicated as Youthful Offenders of DWI and/or other alcohol related offenses are subject to IID installation and related compliance provisions.

• Clarifies recent statutory change that affected operators provide proof of installation compliance with the IID requirement to the court and the applicable monitor where such person is under probation or conditional discharge supervision.

• Requires that manufacturers:

o Provide documentation and verification of and maintain a Standby Letter of Credit (SLOC) as specified in the manufacturer’s contract with New York State;

o The SLOC was previously incorporated in DCJS 2013 contracts with manufacturers;

o Adhere to real time reporting and emergency notification program requirements where such is required in any county plan;

o Report a failed test or re-test where the BAC is.05 percent or higher and provide immediate written notice to DCJS and the Department of Health (DOH) whenever their IID device, services, and/or operations has been compromised or does not function as intended in New York State or any other state or jurisdiction or disapproved or suspended in whole or in part, revoked or otherwise cancelled by another state or jurisdiction or has received notice or communication from another state or jurisdiction that any such actions are imminent.

Additionally, as existing DOH regulations require prior approval with respect to any operational modification of IIDs, new regulatory language reiterates this requirement and for any manufacturer to provide necessary documentation to DOH and that any such manufacturer notify DCJS of any intent to do so and to provide a written summary of any requested or approved DOH modification.

3. Costs:

DCJS does not anticipate any additional costs experienced by rural areas resulting from proposed regulatory changes. The proposed regulatory changes continue to allow each county and the city of New York as a whole, with the flexibility to choose one or more persons or entities responsible for monitoring conditional discharge cases where a defendant has been required to install and maintain a functioning IID in any vehicle which they own or operate and affords the same flexibility as to cases involving individuals who agree and are ordered to install and maintain an IID in advance of sentencing. Noteworthy, DCJS has applied for and received grant funding each of the last five years from the New York State Governor’s Traffic Safety Committee (GTSC) amounting to three (3) million dollars annually in NHTSA monies to offset local government costs in performing monitoring services. DCJS currently distributes monies to the localities pursuant to a formula based on statistics of 2013 DWI conviction rates and is unaware of any rural area concerns with this formula. While DCJS has recently received approval of 2.8 million dollars for Federal fiscal year 2016, this reduced amount should not result in cuts as there have been unexpended monies in prior years.

As to operator costs associated with IID devices Vehicle and Traffic Law (VTL) § 1198(5) establishes that the court, upon determining financial “unaffordability” to pay the cost of the device, may impose a payment plan with respect to the device or waive the fee. Additionally, this VTL provision requires that where the cost is waived, DCJS through regulation shall determine who bears the costs of the device or through such other agreement which may be entered into. The proposed rule revision retains existing language which states manufacturers and not local governments bear such costs. Statistics from August 15, 2010 through June 30, 2015, indicate that 21,188 operators (90.2%) were ordered to pay all IID costs associated with the installation and monthly charges; 904 operators (3.8%) paid the IID costs through payments plans; and 1,397 or 5.9% of operators had costs waived. Overall, the total percentage of waived payments has decreased statewide each year from 2011 (7.2%) to 2014 (4.8 %).

4. Minimizing adverse impact:

DCJS does not anticipate that the proposed changes, which among its provisions revises or adds regulatory language to be consistent with Chapter 169 of the Laws of 2013, and current NHTSA specifications of IIDs, will have any adverse impact on rural areas. DCJS remains steadfast in its efforts to minimize adverse impact of the existing rule and any proposed changes upon local government, especially rural counties. As noted earlier, since 2010 DCJS has annually submitted applications and been awarded grants from GTSC of NHTSA monies to offset local government costs in performing monitoring services. The existing and proposed revised rule language have both been crafted to offer guidance and structure in plan development and implementation. Other features with respect to monitoring continue to afford considerable flexibility as to particular actions where feasible, yet ensure swift and certain action where necessary to achieve uniformity in handling of certain failed tasks and failed tests, safeguard the public and better guarantee offender accountability. The proposed regulatory revisions retain several regulatory provisions as to operator responsibility to assist the judiciary’s consideration of financial “unaffordability” and minimize unnecessary waivers, and to ensure operators convey timely information to monitors, the courts, and installation/service providers. Further, proposed regulatory amendments retain language that in the event of judicial waiver of an operator’s IID cost, monitors will use the established procedures to ensure costs are proportionately borne among manufacturers.

While DCJS regulatory language establishes that IID manufacturers may elect to do business in one, two, three or all four regions of NYS, all four IID manufacturers with DOH certified IIDs have elected to do business throughout NYS. Through the prior establishment of regions, which include both rural and non-rural counties in three regions, proposed regulatory revisions continue to establish that a manufacturer doing business with a non-rural county must do business with rural counties within the region upon the same favorable terms which guarantee service availability of installation/service providers within 50 miles of any operators residence statewide.

DCJS continues to make model forms available which assist jurisdictions in application of Leandra’s Law and its amendments. These forms are of particular assistance to those rural counties with limited staff resources to undertake form development independently. These forms also have been disseminated to all courts by the Office of Court Administration.

5. Rural area participation:

The existing rule was developed with the input from a workgroup which included rural probation representatives. DCJS has considered feedback on the existing rule since its implementation provided by qualified manufacturers, and local jurisdictions, including county IID monitors. Opportunities for feedback included regular communications with qualified manufacturers, involving quarterly conference calls with the manufacturers, and an annual manufacturers’ conference hosted by DCJS. The annual conference has been attended by both manufacturers and probation/CD monitoring agencies. Additionally, DCJS has communicated on the existing rule and proposed changes with local probation departments during probation professional association meetings and conferences. DCJS discussed the proposed revisions with the NYS Probation Commission on May 19, 2015, distributed a draft copy of the proposed revision to all Probation Directors and CD Monitors and all qualified manufacturers, further discussed the proposed revisions with qualified manufacturers, probation and CD monitors, and other interested State and local entities at the Annual IID Manufacturers Conference held on July 9-10, 2015, and made additional revisions based on feedback received from these stakeholders to address certain service delivery issues raised. Overall, feedback was positive as to proposed regulatory changes.

Job Impact Statement

1. Nature of impact:

The revised rule will continue employment opportunities for those manufacturers of ignition interlock devices (IIDs) certified by the New York State (NYS) Department of Health (DOH), and approved as qualified manufacturers by the Division of Criminal Justice Services (DCJS) and for the more than 200 businesses in NYS which are designated installation/service providers of these devices. Between August 15, 2010 and June 30, 2015, over 86,000 IID orders were received by monitoring entities from courts statewide and approximately 23,500 (27.3%) IIDs were installed within 10 days of the time of sentencing, release from incarceration, or in advance of sentencing. In total, there have been 36,220 IIDs installed since “Leandra’s Law” IID requirements took effect. As of October 2, 2015 there were 208 approved installation/service providers, mainly small automotive or electronic shops specializing in the installation of automobile stereo systems, remote starters, mufflers, automobile repair, as well as some automobile dealers. Four (4) manufacturers are currently approved as qualified manufacturers in NYS. It is anticipated that the demand for devices, installation, and maintenance-related services will continue, leading to increased employment opportunities in our state.

2. Categories and numbers affected:

This regulatory rule affects manufacturers of certified IID’s and their respective installation/service providers in NYS and monitors of IID cases. During 2014, there were 46,526 defendants arrested for Vehicle and Traffic Law (VTL) § 1192 Felony and Misdemeanor Driving While Intoxicated (DWI) crimes. That same year there were 19,954 convictions for VTL § 1192 Felony and Misdemeanor DWIs. Statutory provisions require defendants convicted of or adjudicated a youthful offender involving certain DWI-related crimes in NYS to install IIDs in any vehicle which they own or operate as a condition of probation or conditional discharge (CD). Additionally, there are an increasing number of defendants who are willing to be subject to IID’s and court ordered to do so in advance of sentencing. As a result, it is anticipated that there will be continued and expanded employment opportunities for manufacturers and installation/service providers. DCJS’ regulations in this area further enable any other ignition interlock manufacturers doing business outside of NYS whose IIDs have been certified by DOH to apply through an Open and Continuous Application to conduct business in NYS. This creates the potential to increase the number of qualified manufacturers and installation/service providers in the future.

DCJS does not foresee that counties, including New York City, or probation departments who monitor probation cases, and any probation departments and other alternative monitors who are designated to handle CD cases, will be adversely affected by the proposed revised rule. The existing rule and proposed amendments are designed to ensure consistency with state law and recommended federal National Highway Traffic Safety Administration (NHTSA) Specifications and provide flexibility, wherever feasible and/or appropriate, consistent with public safety and accountability in order to minimize any effects upon local government. DCJS has applied for and received grant funding each of the last five years from the NYS Governor’s Traffic Safety Committee (GTSC) amounting to three (3) million dollars annually in NHTSA monies to offset local government costs in performing monitoring services. DCJS currently distributes monies to the localities pursuant to a formula based on statistics of 2013 DWI conviction rates. These grant funds are intended to support the IID monitoring of this offender population by the localities. While DCJS has recently received approximately 2.8 million dollars for Federal fiscal year 2016, this reduced amount should not result in cuts as there have been unexpended monies in prior years.

3. Regions of adverse impact:

The revised rule will have no adverse or disproportionate impact on jobs or employment opportunities in any region of NYS. At the present time, all four manufacturers have been approved by DCJS to operate throughout NYS.

4. Minimizing adverse impact:

DCJS does not anticipate that these regulatory amendments will have an adverse impact on jobs or employment opportunities.

DCJS’ Office of Probation and Correctional Alternatives (OPCA): (i) discussed the proposed revisions with the NYS Probation Commission on May 19, 2015; (ii) distributed a draft copy of the proposed regulatory rule revision to all Probation Directors and CD Monitors and all qualified manufacturers; further discussed the proposed regulatory revisions with qualified manufacturers, probation and CD monitors, and other state and local entities at the Annual IID Manufacturers Conference held on July 9-10, 2015; (iv) and made additional revisions based on feedback received from these stakeholders to address certain issues raised. Overall, feedback was positive as to these proposed regulatory changes.

5. Self-employment opportunities:

Although manufacturers of IIDs are generally large national and/or international businesses, their respective installation/service providers are typically small, owner-operated businesses doing business in NYS. There continues to be a potential for self-employment opportunities where such businesses can meet manufacturer agreements and NYS regulatory requirements governing training, installation, maintenance of services, and other operational provisions.

The proposed revision may create additional job opportunities for installation/service providers, as additional manufacturers apply to DCJS and receive certification of their devices from DOH. Further, expanded employment opportunities exist for installation/service providers as our proposed amendments will require all operators with IID(s) to undergo service visits. Under the current regulation, service visit requirements can be accomplished by operators, with a removable IID head, mailing the IID component back to the manufacturer -a practice applicable and utilized by only one manufacturer. Actual service visits to an installation/service provider are critical in detecting attempted/actual tampering and therefore a beneficial change.