CJS-31-10-00014-EP Handling of Ignition Interlock Cases Involving Certain Criminal Offenders

8/4/10 N.Y. St. Reg. CJS-31-10-00014-EP

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 31

August 04, 2010

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CJS-31-10-00014-EP

Filing No. 748

Filing Date. Jul. 21, 2010

Effective Date. Jul. 21, 2010

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 action:

Proposed Action:

Addition of Part 358 to Title 9 NYCRR.

Statutory authority:

Vehicle and Traffic Law, sections 1193(1) and 1198(5)(a); and L. 2009, ch. 496 and L. 2010, ch. 56

Finding of necessity for emergency rule:

Preservation of public safety.

Specific reasons underlying the finding of necessity:

Significantly, Chapter 496 of the Laws of 2009 greatly expanded the former Division of Probation and Correctional Alternatives (DPCA) regulatory oversight with respect to mandatory ignition interlock compliance in a strategic effort to combat and deter drunk driving and better safeguard the welfare of child passengers. Pursuant to Chapter 56 of the Laws of 2010, the former DPCA has been merged with the Division of Criminal Justice Services (DCJS) which has resulted in the complete transfer of the former agency's functions and continuation of its rules and regulations and contractual agreements and transfer of rulemaking authority to the Commissioner of DCJS. Former DPCA previously issued an emergency regulation in this area on April 23, 2010 which expires on July 21, 2010. In light of the above, DCJS is promulgating this regulation on an emergency basis and now proceeding with formal rulemaking to safeguard the public, optimize traffic safety, and better guarantee accountability with respect to new penalties. In order to ensure timely implementation of the provisions which require DWI misdemeanants and felons sentenced on or after August 15, 2010 be subject to statewide ignition interlock conditions and State regulations governing monitoring standards, handling of cases involving judicial waiver of costs, and to assure availability of devices in every jurisdiction, it is imperative that these regulations which establish a planning framework and core responsibilities of qualified manufacturers, installation/service providers, monitors, and operators be enacted immediately to guarantee implementation, establish training, and ensure compliance.

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 emergency/proposed rule (Full text is posted at the following State website:www.dcjs.state.ny.us):

This second emergency rule, entitled Handling of Ignition Interlock Cases Involving Certain Criminal Offenders, adds a new Part 358 to 9 NYCRR, and is necessitated by Chapter 496 of the Laws of 2009, commonly referred to as Leandra's Law and Chapter 56 of the Laws of 2010 which now empowers the Division of Criminal Justice Services (DCJS) to promulgate rules and regulations with respect to ignition interlock devices and judicial waiver of costs and establishing monitoring standards relative to any defendant sentenced for a DWI misdemeanor or felony. Chapter 56 specifically merged the former Division of Probation and Correctional Alternatives (DPCA), which originally had such rulemaking authority, with DCJS and transferred and assigned to DCJS former DPCA rules and regulations. Below is a brief summary of the regulatory provisions.

Section 358.1 sets forth the Objective which is to promote public/traffic safety, offender accountability, and quality assurance through the establishment of minimum standards for the usage and monitoring of ignition interlock devices following a conviction of a violation of Vehicle and Traffic Law (VTL) § 1192(2), (2-a), and (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.

Section 358.2 governs applicability and establishes that it shall be applicable to every county, monitor, and operator, and shall govern qualified manufacturers and installation/service providers as to use, installation, and reporting with respect to ignition interlock devices imposed upon the aforementioned criminal court population within New York State and be effective immediately, except sections 358.6 through 358.10 which shall be effective August 15, 2010.

Section 358.3 is the definitional section. This section defines over twenty-five key operational terms to ensure consistency statewide with respect to language interpretation. Among these are the definition of "county" to clarify that it refers to every county outside of the city of New York, and the city of New York, and that a "qualified manufacturer" shall mean a manufacturer or distributor of an ignition interlock device certified by the New York State Department of Health who has satisfied the specific operational requirements herein and has been approved as an eligible vendor by DCJS in the designated region where the county is located.

Additionally, other terms, such as "failed tasks", "failed tests" "lockout mode", and "monitor" are defined to ensure there is universal understanding of what is meant by these terms in New York State.

Section 358.4 sets forth parameters of a county ignition interlock program plan which must be submitted by every county executive to DCJS by June 15, 2010. Rule procedures require consultation with certain officials or individuals as to plan development which will ensure that procedures are in place prior to the effective date to foster statutory and regulatory compliance and timely notification of critical information. In an effort to provide greater uniformity with respect to similar cases, yet provide certain flexibility where consistent with public safety and offender accountability, additional language distinguishes between probation and conditional discharge cases in terms of monitor and decision-making as to specific classes and features of devices required. Additional language states that where any available funding is earmarked for such purpose, the plan shall establish a distribution formula for probation supervision and /or monitoring purposes. This language contemplates DCJS efforts in securing federal grant monies to support local programmatic and/or administrative staff resources to perform monitoring functions for this offender population.

Section 358.5 governs the approval process and responsibilities of qualified manufacturers. It sets forth a procedural application mechanism for a manufacturer of ignition interlock devices to become a qualified manufacturer and requires at the outset that a manufacturer must have a certified ignition interlock device approved by the Department of Health as necessitated by VTL § 1198. Other noteworthy provisions require that any interested applicant agree to adhere and certify that they and their installation/service providers will abide by all germane regulatory procedures governing their devices and services (including specific technical device provisions with respect to vehicle operation), reporting requirements that must be met to safeguard the public and promote greater offender accountability, submission of specific documentation, selection of one or more regions of the state to conduct business, adherence to training and enhanced service delivery requirements, establishment of maximum fee/charge schedules, pay for the cost of devices where a judicial waiver has been granted, and willingness to enter into a three-year contractual agreement with DCJS. On or after August 15, 2010, only a qualified manufacturer may conduct business in New York State with respect to any operator. While an initial application deadline of May 12, 2010 is established for those seeking to do business on August 15, 2010 and thereafter, DCJS permits an open-ended application process for manufacturers seeking to do business in New York State after August 15, 2010, in consideration of the time required for device certification, application approval and contract execution.

Section 358.6 enumerates factors which may lead to cancellation, suspension, and revocation of qualified manufacturers, and installation/service providers, and certified ignition interlock devices.

Section 358.7 establishes monitoring standards. Monitoring functions associated with DWI operators with ignition interlock devices are statutorily required pursuant to the aforementioned 2009 Chapter law. DCJS' regulatory language has been carefully streamlined to afford considerable flexibility where feasible, yet emphasizes that upon learning of specific events, that the applicable monitor shall take appropriate action consistent with public safety. Where under probation supervision, the county probation department shall adhere to DCJS' Graduated Sanctions and Violation of Probation rule. With respect to any operator sentenced to conditional discharge, the monitor shall take action in accordance with the provisions of its county ignition interlock program plan, consistent with the goals of public safety. At a minimum, however in all cases, it necessitates swift and certain notification to the sentencing court and district attorney as to specific failed tasks and failed tests. Overall, DCJS' rule 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 and to better guarantee offender accountability and safeguard the public. Other language establishes parameters with respect to case records and record sharing and establishes more stringent access requirements and confidentiality protections surrounding particular records.

Section 358.8 governs costs and maintenance. It recognizes that any operator shall pay the cost of installing and maintaining the ignition interlock device, unless the operator has been determined by the sentencing court to be financially unable to afford the cost of the device, whereupon such cost may be imposed pursuant to a payment plan or waived. If an operator claims financial inability to pay for the device, regulatory provisions establish that the operator shall submit three copies of a financial disclosure report on a form prescribed by DCJS to the sentencing court which shall distribute copies to the district attorney and defense counsel. This report enumerates factors to assist the sentencing court with respect to financial inability of the operator to pay for the device and whether to impose a payment plan or waive the fee/charge.

Section 358.9 governs record retention and disposition and establishes that records retention and disposition of all records of the county, any qualified manufacturer, and installation/service provider with respect to this rule Part shall be in accordance with the applicable Records Retention and Disposition Schedule promulgated by the State Education Department.

Section 358.10 relates exclusively to liability and establishes that nothing contained in this Rule Part shall impose liability upon DCJS, the State of New York, or any county for any damages related to the installation, monitoring or maintenance of an ignition interlock device or an operator's use or failure to use such devices.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire September 18, 2010.

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

Linda J. Valenti, OPCA Counsel, Division of Criminal Justice Services, 80 Wolf Road - Suite 501, Albany, New York 12205, [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.

This action was not under consideration at the time this agency's regulatory agenda was submitted.

Regulatory Impact Statement

1. Statutory authority:

Chapter 496 of the Laws of 2009 (Leandra's Law), was a Governor's Program Bill that unanimously passed by both houses of the State Legislature. New York State joins nine other states mandating the use of ignition interlocks for all individuals sentenced for Driving While Intoxicated (DWI) misdemeanor or felony offenses. Significantly, this measure greatly expanded the former Division of Probation and Correctional Alternatives (DPCA) regulatory oversight with respect to mandatory ignition interlock compliance in a strategic effort to combat and deter drunk driving and better safeguard the welfare of child passengers. Pursuant to Chapter 56 of the Laws of 2010, the former DPCA has been merged with the Division of Criminal Justice Services (DCJS) which has resulted in the complete transfer of the former agency's functions and continuation of its rules and regulations and contractual agreements and transfer of rulemaking authority to the Commissioner of DCJS. Specifically, Vehicle and Traffic Law (VTL) § 1193(1)(g) directs said agency "to promulgate regulations governing the monitoring of compliance by persons ordered to install and maintain ignition interlock devices to provide standards for monitoring by departments of probation, and options for monitoring of compliance by such persons, that counties may adopt as an alternative to monitoring by a probation department." While VTL § 1198(5)(a) authorizes a court to allow the costs of the ignition interlock device to be paid through a payment plan or to waive the costs, upon a determination of "financial unaffordability" of the defendant, it further states that in the event of such waiver, the cost of the device shall be borne in accordance with DCJS regulations "or pursuant to such other agreement as may be entered into for provision of the device." Thus, it is the intent that DCJS address the method of payment if the costs of the ignition interlock device were waived or if the DWI offender was afforded a payment plan.

2. Legislative objectives:

This rule serves both the Governor's and the State Legislature's underlying objective of Leandra's Law, to further strengthen DWI laws and penalties through statewide implementation of ignition interlock 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 ignition interlock devices following a conviction of 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.

3. Needs and benefits:

This rule is needed to achieve successful implementation of Leandra's Law and address the challenges in achieving statewide implementation of ignition interlock conditions upon the DWI offender population, and establish minimum statewide monitoring standards to achieve uniformity in handling of certain failed tasks and failed tests, better safeguard the public, especially child passengers, and better guarantee operator accountability. DCJS' guidance in providing options for monitoring of compliance in lieu of probation, in conditional discharge cases and plan development and structure provisions will foster better collaboration and communication within jurisdictions and enable alternative monitoring arrangements so as to not burden probation departments with monitoring the entire DWI population subject to ignition interlock restrictions.

Its intent is to safeguard the public, optimize traffic safety, and guarantee accountability with respect to new penalties. In order to ensure timely implementation of the provisions which require DWI misdemeanants and felons sentenced on or after August 15, 2010 be subject to statewide ignition interlock conditions and DCJS regulations governing monitoring standards, handling of cases involving judicial waiver of costs, and to assure availability of devices in every jurisdiction, it is imperative that these regulations which establish a planning framework and core responsibilities of qualified manufacturers, installation/service providers, monitors, and operators be enacted immediately to guarantee implementation, establish training, and ensure compliance.

4. Costs:

a. It is anticipated that there will be some fiscal impact arising from Leandra's law. Chapter 496 of the Laws of 2009 requires monitoring of all DWI defendants subject to ignition interlock devices as a result of sentencing on and after August 15, 2010. This chapter requires, in addition to any other disposition that may be imposed, that a defendant receive a sentence of probation or conditional discharge with an ignition interlock condition. Where probation is imposed, probation departments are responsible for monitoring. Jurisdictions may designate alternative monitors for conditional discharge cases in lieu of probation. Thus, this Chapter and not DCJS rule is the source of any increased administrative costs. DCJS rule provides every jurisdiction with the flexibility to select one or more persons or entities responsible for monitoring conditional discharge cases. A variety of potential designees are listed for consideration so probation departments will not absorb such responsibilities by omission. Due to the former DPCA, DCJS, DMV and the State's efforts to strengthen ignition interlock laws to deter drunk driving and promote greater offender accountability, the former DPCA was invited and submitted a one year seed grant application to the Governor's Traffic Safety Committee in an amount of three (3) million dollars in National Highway Safety Traffic Administration (NHTSA) monies to offset local government costs in performing monitoring services. The application which is pending and is anticipated to be approved on or about September 1, 2010 will enable DCJS, which former DPCA has been merged with, to distribute monies pursuant to a formula of DWI convictions to support local monitoring responsibilities for activities occurring on and after October 1, 2010.

b. DCJS' regulatory requirements with respect to qualified manufacturers or their installation/service providers will not impose costs upon either beyond normal operating costs. A qualified manufacturer may incur additional costs associated with providing payment plans or devices at no charge where judicial waiver has occurred as provided in law. It is not possible to determine precisely such costs. The new law 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. New Vehicle and Traffic law statutory provisions require that where the cost is waived, DCJS through its regulation shall determine who bears the costs of the device or through such other agreement which may be entered into. Accordingly, DCJS' regulation requires qualified manufacturers, and not local governments or taxpayers to bear such costs. Effective August 15, 2010, while the decision to waive the fee is reserved to the court, DCJS speculates based upon experience of other states that approximately ten (10) percent of cases will result in waivers. In view of the significant market and profit for ignition interlock manufacturers qualified to do business in New York State, it is reasonable to require manufacturers supply devices free of charge where a judicial waiver has been ordered. Accordingly, interested manufacturers in their applications must provide a maximum fee/charge schedule taking into consideration an estimated 10 % waiver.

Statutory provisions require that operators are responsible for costs of installation and maintenance of the ignition interlock devices where no judicial waiver has been granted due to financial inability. DCJS documentation of fee structure received from interested qualified manufacturers indicates an average $75-$100 installation charge and a similar monthly maintenance charge.

c. Although DCJS must approve each county plan, it is anticipated that this approval process will be accomplished using existing staff and resources. As the former statewide oversight agency, with extremely limited staffing resources, the former DPCA pursued some administrative monies in connection with the aforementioned grant to better manage compliance with the statutory and regulatory requirements of this new law.

5. Local government mandates:

This rule establishes that every jurisdiction must submit for DCJS approval an ignition interlock plan for monitoring the use of ignition interlock devices by June 15, 2010. The County Plan content is straightforward, simple, and largely prescriptive to ease any burden on localities. Monitoring functions associated with DWI operators with ignition interlock devices are statutorily required. DCJS' rule has been carefully streamlined to afford considerable flexibility, yet guarantee swift and certain sentencing 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. Nationally, fewer than 10% of persons with an ignition interlock installed on their motor vehicle violate the conditions relating to the ignition interlock program.

6. Paperwork:

This rule establishes that every jurisdiction submit an ignition interlock program plan to DCJS for approval meeting certain regulatory requirements. The former DPCA distributed a model simple form, largely prescriptive, to assist jurisdictions in satisfying this requirement. A manufacturer wishing to conduct business in New York State relative to ignition interlock devices will be required to apply to DCJS. The former DPCA distributed and posted an application for interested manufacturers. Other data report requirements imposed upon qualified manufacturers and installation/service providers are routine business activities and essential to offender accountability and community safety. The former DPCA developed approximately fifteen (15) reporting forms to facilitate exchange of information and promote consistency, which will greatly benefit all jurisdictions in implementation and compliance with this new law. The former DPCA solicited considerable input from constituents, including the Courts in developing the financial disclosure report required of operators applying for judicial waiver. Further efforts at the state level will lead to the availability of Spanish forms.

7. Duplication:

This proposal does not duplicate any other existing State or federal requirements. While the Department of Health (DOH) certifies ignition interlock devices, DOH through regulations has transferred certain regulatory responsibilities to DCJS to achieve a more workable solution with respect to oversight of key areas.

8. Alternatives:

The former DPCA and DCJS weighed several approaches with respect to rule-making, but were required at a minimum to include certain aforementioned statutory components. A plan submission process was viewed essential to ensure that all jurisdictions are prepared to fulfill statutory requirements. An application process for manufacturers with stronger operational requirements was also determined critical to improve statewide service delivery and promote public safety and operator accountability. In crafting rule content and developing the financial disclosure report, a workgoup which included local prosecutorial and probation representation was formed, with representation from former DPCA, DCJS and various other local and state agencies. DPCA had publicized and convened a manufacturer's roundtable in March 2010 to solicit additional information from probation departments and manufacturers. The Office of Court Administration (OCA), Department of Motor Vehicles, the Office of Alcoholism and Substance Abuse Services, the former DPCA, and DCJS, were all actively involved in rule formation and implementation. Further, the Offices of General Services, State Comptroller, Attorney General, and Division of the Budget were consulted as to the request for application. The former DPCA provided the State Probation Commission, probation departments, and manufacturers two separate draft regulations in this area which incorporated numerous suggestions. The regulation reflects many other recommendations to minimize impact, clarify the law, and achieve more sound workable provisions, consistent with public safety.

9. Federal standards:

There are no federal standards governing the monitoring of convicted DWI offenders ordered to use an ignition interlock device although the National Highway Traffic Safety Administration (NHTSA) published model specifications for breath alcohol ignition interlock devices in the Federal Register on April 7, 1992 (57 FR 11772) and this rule requires that any device used meets these standards. Both the former DPCA and DCJS, in consultation with DOH and the Traffic Research Injury Foundation, incorporated additional device operation and monitoring standards that are consistent with good professional practice and have been well-received and which are likely to be embraced as future model provisions.

10. Compliance schedule:

Every county and the city of New York were required to submit an ignition interlock program plan to the former DPCA for approval by June 15, 2010 to ensure smooth and successful implementation of the mandatory ignition interlock statutory and regulatory provisions on August 15, 2010. DCJS is in the process of reviewing these applications. DPCA distributed two earlier regulatory drafts to probation departments and disseminated these to the New York State Association of Counties and conducted a web air conference on the subject.

The State's efforts in conducting a preliminary roundtable for manufacturers and sharing draft regulations and draft request for application and incorporating many business comments has proven beneficial in terms of advance notification of regulatory terms and conditions, making the application process manageable to interested manufacturers, and readiness to achieve timely compliance with regulations.

To foster better understanding and guarantee compliance of the law and its regulations, DCJS is undertaking OCA training initiatives to ensure the judiciary and other interested parties are sufficiently knowledgeable on the new law and regulatory features.

The majority of feedback with respect to the rule has been well-received and it is expected that all affected parties will be able to comply with the rule.

Additionally, all interested qualified manufacturer's applications have been reviewed and approved and all seven (7) State contracts have been signed, approved by the Attorney General, and are in the process of final execution by the Office of the State Comptroller.

Regulatory Flexibility Analysis

1. Effect of rule:

This rule will affect every county and the city of New York as a whole, ignition interlock manufacturers and their approved installation/service providers. As of April 2010 there were approximately thirteen (13) manufacturers of ignition interlock devices currently established in the United States and six (6) doing business in New York State with approximately 175 installation/service providers within the state. The latter are typically automobile repair businesses and automobile sound system installers. Since then, seven (7) have been approved as qualified manufacturers and there has been an increase of approximately fifty (50) additional installation/service providers, with more anticipated in the immediate future.

2. Compliance requirements:

This rule would require that every jurisdiction submit an ignition interlock program plan to the Division of Criminal Justice Services (DCJS) for approval relative to usage of ignition interlock devices and monitoring the compliance of operators subject to such device as directed by the sentencing court. The regulation enumerates parameters with respect to the development, scope, and content of the plan so as to promote consistent application, foster greater local collaboration and coordination within the criminal justice system, guarantee monitoring of all operators subject to the installation of such devices on their motor vehicles, and optimize compliance with Chapter 496 of the Laws of 2009, commonly referred to as Leandra's law, which strengthens various laws to combat and deter drunk driving. The County Plans required by DCJS will be simple and largely prescriptive to ease any burden on localities.

Further, a manufacturer wishing to do business in New York State would be required to apply to DCJS to become a qualified manufacturer, agree to meet our regulatory requirements as to service delivery and enter into a contractual agreement with DCJS. Among relevant information sought in the application are a description of the certified ignition interlock device approved by the New York State Department of Health (DOH), maximum fee/charge schedules, specific service performance measures, a commitment to conduct business in one or more of the four designated regions of the state, certification of installation/service providers, verification of liability coverage and a signed statement that the manufacturer or its representative will indemnify and hold harmless the State of New York and local government from particular claims, demands and actions which might arise out of any act or omission with respect to installation, service, inspection, maintenance, repair, use and/or removal of the device. While DCJS requires that any qualified manufacturer provide for a payment plan or in certain cases agree to provide a device free of charge to an operator who has been determined financially unable to afford the device, this language is consistent with Vehicle and Traffic Law § 1198(5)(a). Further, there exist certain compliance requirements which installation/service providers must satisfy with respect to installation, service delivery, training, and reporting. Moreover, the majority of qualified manufacturer and installation/service provider requirements are similar in nature to what has been previously required by DOH regulations. Due to the new leadership role with respect to ignition interlock programmatic implementation, the former Division of Probation and Correctional Alternatives, which subsequently has been merged with DCJS, jointly worked with DOH to strengthen existing DOH regulations in this area, including transfer of certain regulatory responsibilities to DCJS.

DCJS has incorporated other expanded requirements consistent with other state's best practices and operational provisions to improve service delivery, ensure availability throughout the state, and promote greater accountability. At the same time, DCJS has afforded greater flexibility in certain pre-existing DOH requirements and other new regulatory provisions wherever feasible without compromising ignition interlock performance integrity and public safety. DCJS has recognized differences in technology through special provisions which reflect classification categories and features, and operational differences with respect to servicing certain devices.

3. Professional services:

It is not anticipated that any particular professional services will be required to comply with the rule.

4. Compliance costs:

Chapter 496 of the Laws of 2009 requires monitoring of all defendants subject to ignition interlock devices as a result of sentencing on and after August 15, 2010 involving a DWI misdemeanor or felony. This chapter requires, in addition to any other disposition that may be imposed, that a defendant receive a sentence of probation or conditional discharge with an ignition interlock condition. Where probation is imposed, probation departments are responsible for monitoring. It further permits designation of an alternative person with respect to conditional discharge cases in lieu of probation. The rule provides 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 ignition interlock device in any vehicle which they own or operate. Potential designees are listed to better guarantee active consideration and not result in probation departments absorbing such responsibilities by omission. Due to the State's and national efforts to strengthen ignition interlock laws to deter drunk driving and promote greater offender accountability, the former DPCA advocated and was invited to submit a grant application to the Governor's Traffic Safety Committee in an amount up to three (3) million dollars in National Highway Safety Traffic Administration (NHTSA) monies to offset local government costs in performing monitoring services. The application which is pending and is anticipated to be approved on or about September 1, 2010 will enable DCJS, which former DPCA has merged with pursuant to Chapter 56 of the Laws of 2010, to distribute monies to jurisdictions pursuant to a formula of DWI convictions to support local programmatic and/or clerical staff resources to perform monitoring functions for this offender population.

DCJS believes that the regulatory requirements with respect to qualified manufacturers or their installation/service providers will not impose costs upon either beyond normal operating costs. The manufacturer wishing to do business in the State may incur some additional business associated with the regulatory requirement that such manufacturer provide devices at no charge or through a payment plan when ordered by a court. It is not entirely possible to estimate such costs. Currently, any operator subject to the installation of an ignition interlock device is required to pay such costs. Noteworthy, the aforementioned Chapter law 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. New Vehicle and Traffic law statutory provisions require that where the cost is waived, DCJS through its regulation shall determine who bears the costs of the device or through such other agreement which may be entered into. It was decided preferable to require qualified manufacturers, and not local governments to bear such costs. While the decision to waive the fee is reserved to the court and will take effect on August 15, 2010, DCJS speculates based upon other state's experience in this area that approximately ten (10) percent of cases will result in waivers. Due to the significant potential of increase in profits for a manufacturer due to the expansion of the use of ignition interlock devices, DCJS believes that it is reasonable to hold manufacturers responsible for supplying the device free of charge where a judicial waiver has been secured. Further, as interested manufacturers in their applications must provide a maximum fee/charge schedule taking into consideration an estimated 10 % waiver, the costs in this area will likely be absorbed in the fee/charge schedule submitted to DCJS.

5. Economic and technological feasibility:

From feedback that former DPCA received with respect to the proposed and finalized application and regulation which was sent to all ignition interlock manufacturers throughout the nation, manufacturers currently providing certified ignition interlock devices for use in New York State (with respect to offenders already subject to ignition interlock condition as part of their sentence or release) expressed willingness to satisfy compliance with the emergency regulation and all including one additional manufacturer applied and were approved as qualified manufacturers. Moreover, it should be noted that the majority of manufacturers of ignition interlock devices are located in other states. At this time, only two (2) qualified manufacturers are located in New York State. All current installation/service providers within New York State were previously required to satisfy specific installation, training and reporting requirements established in DOH regulations in the area of ignition interlock devices and the transfer of these regulatory requirements to DCJS have resulted in continuation of similar provisions. As to any additional requirements, qualified manufacturers have assured the state through their respective applications and contractual agreements that installation/service providers which they have selected will be able to comply with regulatory requirements.

As to specific technological feasibility features in this rule, the former DPCA and DCJS reviewed other states requirements and existing and anticipated future national standards, worked with DOH to update its regulations with respect to best practices, and incorporated several programmatic and legal suggestions obtained from feedback of manufacturers, probation practitioners with ignition interlock caseloads, prosecutors, along with various professional associations and organizations, including the Council of Probation Administrators, the NYS STOP-DWI Coordinators Association, and the Traffic Safety Research Foundation.

6. Minimizing adverse impact:

Both the former DPCA and DCJS were steadfast in its efforts to minimize adverse impact of this proposed regulation upon small business and local government. As noted earlier, a DCJS application, earlier submitted by former DPCA, is pending to secure federal funding to reduce any local government costs associated with monitoring as a result of Leandra's Law statutory responsibilities and our related regulations. The regulations have been crafted to offer guidance and structure in plan development and implementation. Other features with respect to monitoring have carefully balanced substantive provisions 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. There has been added 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.

With respect to manufacturers, former DPCA and DCJS examined other state's statutory and/or regulatory requirements, sought input of DOH authorities, the Traffic Safety Research Foundation, and experience of other states as to their laws in this area and convened a roundtable for manufacturer participation which was well-attended that provided a candid and meaningful dialogue and exchange as to issues and concerns.

Overall, through circulating two prior draft regulations in this area and a draft of the request for application, the former DPCA received additional feedback which led to numerous edits to address concerns and provide where appropriate greater flexibility. Additionally, the Director of Probation and Correctional Alternatives and program and legal staff of the former DPCA participated in a web air conference with the New York State Association of Counties to foster better understanding of Leandra's Law and our draft regulation.

7. Small business and local government participation:

Interested small businesses and local government participated in several ways in crafting and refining this rule. Specifically, a workgroup which included local prosecutorial and probation representation was formed along with representation from former DPCA, DCJS and various other state agencies. DPCA had publicized and convened a manufacturer's roundtable in March 2010 to solicit more information from probation departments and manufacturers of ignition interlock devices and establish a meaningful dialogue of issues and concerns with implementation of Leandra's Law provisions governing ignition interlock. The Office of Court Administration, Department of Motor Vehicles, the Office of Alcoholism and Substance Abuse Services, former DPCA, and DCJS, were all actively involved in rule formation and implementation to gain their professional insight. Further, the Office of General Services, the Office of State Comptroller, the Attorney General's office and the Division of the Budget have been consulted as to the request for application which mirror key regulatory provisions. DPCA provided probation departments and manufacturers two separate draft regulations in this area which incorporated numerous suggestions. The final emergency regulation reflects many other recommendations to minimize impact, clarify the law, and achieve more sound workable provisions.

Rural Area Flexibility Analysis

1. Types and estimated number of rural areas:

Forty-four of the 57 local probation departments outside of New York City are located in rural areas and will be affected by the regulation.

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

The proposed regulation implements 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 ordered upon defendants sentenced for a DWI misdemeanor or felony. Rule provisions require that each county and the city of New York adopt an ignition interlock program plan for the monitoring of such devices and successful implementation of this new law. Such plan must be submitted to the Division of Criminal Justice Services (DCJS) for approval and contain certain enumerated components to ensure a smooth transition, uniformity in handling of similar cases, and optimize compliance with statutory and regulatory provisions to combat and deter drunk driving. For example, such plan must designate the agency or entity that will monitor conditional discharge cases, establish certain procedures to ensure the monitor receives timely notification of those defendants subject to interlock conditions, including advance notification of DWI defendants when released from state or local imprisonment, judicial waiver of cost of devices, intrastate transfers, and interstate transfers. Specific regulatory provisions govern monitoring services. Flexibility is provided to local jurisdictions to establish other procedures governing failure report recipients, including method and timeframe and specific notification and circumstances. In the interest of public safety and offender accountability, other regulatory provisions require court and district attorney notification by all monitors when certain failed tasks or failed tests occur and appropriate notification with respect to intrastate transfers and interstate transfers. Monitors have been given the authority to issue certificates of completions and letters of de-installation. Consistent with state laws governing record retention and disposition, regulatory language requires that all local governmental records shall be retained and disposed of in accordance with the applicable Records Retention and Disposition Schedule promulgated by the New York State Education Department. Lastly, it is not anticipated that any special professional services will be required to adopt and administer such plan.

3. Costs:

Chapter 496 of the Laws of 2009 requires monitoring of all defendants subject to ignition interlock devices as a result of sentencing on and after August 15, 2010 involving a DWI misdemeanor or felony. This chapter requires, in addition to any other disposition that may be imposed, that a defendant receive a sentence of probation or conditional discharge with an ignition interlock condition. Where probation is imposed, probation departments are responsible for monitoring. It further permits designation of an alternative person with respect to conditional discharge cases in lieu of probation. The rule provides 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 ignition interlock device in any vehicle which they own or operate. Potential designees are listed to better guarantee active consideration and not result in probation departments absorbing such responsibilities by omission. Due to the State's and national efforts to strengthen ignition interlock laws to deter drunk driving and promote greater offender accountability, the former Division of Probation and Correctional Alternatives (DPCA) advocated and was invited to submit a grant application to the Governor's Traffic Safety Committee in an amount up to three (3) million dollars in National Highway Safety Traffic Administration (NHTSA) monies to offset local government costs in performing monitoring services. The application which is pending and is anticipated to be announced on or about September 1, 2010 will enable DCJS, which former DPCA has merged with pursuant to Chapter 56 of the Laws of 2010, to distribute monies to jurisdictions pursuant to a formula of DWI convictions to support local programmatic and/or clerical staff resources to perform monitoring functions for this offender population.

Currently, any operator subject to the installation of an ignition interlock device is required to pay such costs. Noteworthy, Chapter 496 of the Laws of 2009 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. New Vehicle and Traffic law statutory provisions require that where the cost is waived, DCJS through its regulation shall determine who bears the costs of the device or through such other agreement which may be entered into. DCJS regulations require qualified manufacturers, and not local governments to bear such costs. Moreover, DCJS does not foresee substantial cost variances between rural, suburban, and urban jurisdictions as costs associated with this new law will be impacted upon number of sentenced DWI misdemeanants and DWI felons and this does not necessarily correspond to population size of a jurisdiction.

4. Minimizing adverse impact:

Both the former DPCA and DCJS were steadfast in its efforts to minimize adverse impact of this proposed regulation upon local government, especially rural counties. As noted earlier, a DCJS application, earlier submitted by former DPCA, is pending to secure federal funding to reduce any local government costs associated with monitoring as a result of Leandra's Law statutory responsibilities and our related regulations. The regulations have been crafted to offer guidance and structure in plan development and implementation. Other features with respect to monitoring have carefully balanced substantive provisions 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. There has been added 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, our regulatory language requires that in the event of judicial waiver of the cost of the device, the qualified manufacturer not the county government bears the costs associated with installation and maintenance of the ignition interlock device for any person convicted of a DWI misdemeanor or felony and required to have installed a functioning ignition interlock device on any vehicle which he/she owns or operates.

DCJS does not anticipate that these new regulations will have any adverse impact on rural areas. Although rural counties may have fewer resources at their disposal than more populated counties, many rural counties also have the advantage of a smaller population and typically a correspondingly smaller number of operators required to install an ignition interlock device. Further, through the establishment of regions, which include both rural and non-rural counties, this regulation will require 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 will ensure service availability and further that installation/service providers be available to operators within 50 miles of their homes statewide.

Lastly, at the state level there has been developed approximately fifteen model forms which will greatly benefit all jurisdictions in implementation and compliance with this new law, especially numerous rural counties with limited staff resources to undertake form development. These forms have been disseminated to all jurisdictions and have been well-received.

5. Rural area participation:

This rule was developed by the former DPCA prior to its merger with DCJS with the input of a number of entities including probation departments from rural counties. Specifically, a workgroup which included rural probation representation was formed along with representation from former DPCA, DCJS and various other state agencies. DPCA had publicized and convened a manufacturer's roundtable in March 2010 to solicit more information from probation departments and manufacturers of ignition interlock devices and establish a meaningful dialogue of issues and concerns with implementation of Leandra's Law provisions governing ignition interlock. Several rural probation departments attended this roundtable meeting. DPCA provided all probation departments two separate draft regulations in this area which incorporated numerous suggestions. The Council of Probation Administrators (COPA), the statewide professional association of probation executives in New York State, selected two rural probation directors to be part of our aforementioned workgroup. Additionally a separate committee within COPA, comprised of rural probation director membership, reviewed the last regulatory draft and DPCA originally incorporated certain/several amendments that were consistent with public safety, statutory language and intent, and/or otherwise feasible. Additionally, the Director of Probation and Correctional Alternatives directly communicated with officials within the New York State Association of Counties (NYSAC) as to the new law and disseminated the last draft regulatory revision, prior to finalizing the first emergency regulation, for feedback and he previously conducted a NYSAC web air conference on the subject which had large representation from jurisdictions across the state. The final emergency regulation reflects many other recommendations to minimize impact, clarify the law, and achieve more sound workable provisions which will greatly assist rural jurisdictions on implementation of the new law and this rule.

Job Impact Statement

1. Nature of impact:

This rule will increase employment opportunities for manufacturers of ignition interlock devices certified by the New York State Department of Health and approved as a qualified manufacturer by the Division of Criminal Justice Services (DCJS) and for businesses in New York State which are designated installation/service providers of these devices. Based on arrest and conviction rates from 2008, the number of convicted drivers who will be required to install an ignition interlock device is projected to be approximately 25,000 per year. As of April 2010, approximately 2,400 ignition interlock devices are in use in New York State and there were approximately 175 approved installation/service providers, mainly small automotive shops specializing in the installation of automobile stereo systems, mufflers, automobile repair, and automobile dealers. Since seven (7) manufacturers are now approved as qualified manufacturers to conduct business in New York State, the demand for devices and installation and maintenance-related services has grown dramatically and is anticipated to continue, leading to increased employment opportunities in our state.

2. Categories and numbers affected:

This rule will affect manufacturers of certified ignition interlock devices and their respective installation/service providers. Based on the projected number of defendants who will be required to install an ignition interlock device as a sentencing condition upon any vehicle which they own or operate, the number of current ignition interlock users and installation/service providers, the requirement that a manufacturer commit to servicing one or more designated region(s), and the anticipated geographical distribution of future defendants sentenced on Driving While Intoxicated (DWI) misdemeanor(s) and/or felony(ies), subject to such devices, it is projected that there will be increased employment opportunities for manufacturers and installation/service providers. In April 2010, prior to the first emergency rule, there were six (6) manufacturers in New York State and thirteen (13) throughout the nation, and subsequently, seven (7) have been approved as qualified manufacturers. It is anticipated that others doing business outside of New York may apply in the future to conduct business in New York State. As a result of being approved as qualified manufacturers, which includes a commitment to service one or more designated region(s) of New York State, DCJS is aware that approximately fifty (50) additional installation/service providers have been selected by manufacturers to handle the increased service demand resulting from this new law, and more are expected in the near future. This has resulted and will continue to result in corresponding increase in employment opportunities throughout the state.

While counties and New York City, in particular probation departments and other alternative monitors who may be designated to handle conditional discharge cases may be affected by this regulation, the regulation is designed to provide a flexibility wherever feasible consistent with public safety and accountability in order to minimize the effect of the regulation upon local government. Under this new law, where probation is imposed, probation departments are responsible for monitoring. It further permits designation of an alternative person with respect to conditional discharge cases in lieu of probation. The rule itself provides every jurisdiction with the flexibility to choose one or more persons or entities responsible for monitoring conditional discharge cases. A variety of potential designees are listed to better guarantee active consideration and not result in probation departments absorbing such responsibilities by omission. Due to the State's and national efforts to strengthen ignition interlock laws to deter drunk driving and promote greater offender accountability, DCJS has advocated and been invited to submit a grant application to the Governor's Traffic Safety Committee in an amount up to three (3) million dollars in National Highway Safety Traffic Administration (NHTSA) monies to offset local government costs in performing monitoring services. DCJS is in the process of submitting a grant application which will enable our agency to distribute monies pursuant to a formula of DWI convictions to support local programmatic and/or clerical staff resources to perform monitoring functions for this offender population. In some jurisdictions, new employment opportunities may be available with respect to monitoring services.

3. Regions of adverse impact:

This rule will have no adverse or disproportionate impact on jobs or employment opportunities.

4. Minimizing adverse impact:

This rule will have no adverse impact on jobs or employment opportunities. As noted in paragraph 2, this rule will instead increase employment opportunities throughout the State. With respect to jobs, the new law specifically requires monitoring be performed at the local level. DCJS' rule in this area has provided considerable flexibility and options to local government with respect to monitoring. Further, our rule 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.

5. Self-employment opportunities:

Many manufacturers of ignition interlock devices are independent businesses and designated installation/service providers are typically small, owner-operated businesses. The increase in the number of qualified manufacturers has led to increased installation/service providers throughout the state and it is anticipated that there is a potential for self-employment opportunities where such businesses can meet manufacturer agreements and State regulatory requirements governing training, installation, maintenance of services, and other operational provisions.