Because Wis. Stat. s. 343.301 only calls for restriction of class D operating privileges of drivers, it has been possible for drivers subject to an BAIID restriction to legal operate motorcycles without the device. Nonetheless, consistent with now repealed federal law, s. 343.301 also required offenders to install the devices in all of their vehicles including motorcycles. The creation of s. 343.301(1m)(b) by 2019 Act 70 allow courts to refrain from ordering installation of BAIIDs on motorcycles until there is a practical way to accomplish that end. The department proposes to require any motorcycle-installed device to be weatherproof and to permit hands-free device operation while starting and driving the autocycle or motorcycle. These features will protect the driver and the public, as well as ensure data quality. Unless and until such a device is available and marketed in Wisconsin, s. 343.301(1m)(b) will not require a court to order a motorcycle owner to do the impossible -- install a device on a motorcycle. The requirements for an ignition interlock data system, Trans 313.04(6) are the department’s proposed mechanism for implementing the requirements of data collection and reporting set forth in s. 110.10(4), Stats. The department proposes to initially leverage current industry data collection and reporting systems to provide data access to persons involved in the OWI law enforcement process such as courts, police agencies, corrections, probation and parole agents, assessment agencies, treatment providers, the department, and academic researchers. Whether uploaded at a service appointment or wirelessly transmitted, data is stored in the manufacturer or vendor’s data system, who may grant permission to access the data to authorized officials. Those officials would not be granted access to GPS or location data, if collected, unless the customer authorizes its release, a search warrant authorizes it, or for academic research. The regulation also provides an opportunity for development of a more centralized data warehouse to facilitate access to the data. If such a system is developed, BAIID providers would be required to transmit data to that warehouse but would not be required to provide online access to data any longer. Provisions of the rule related to the possible denial, suspension or revocation of device approval are updated in this rulemaking. Violation of Ch. Trans 313 provisions has always been a basis for such action; this proposed rulemaking would add violation of any state statute as a basis for denial, suspension or revocation of device approval. Other additional bases for denial, suspension or revocation of device approval include:
Failing to provide service in an assigned service area.
Failing to provide notice of service center location changes or discontinuance.
Failing to maintain an inventory of parts needed to perform needed repairs to devices.
Failing to provide a device at the cost required under s. 343.301(3)(b), Stats.Section 110.10(intro), Stats., requires the department to make the BAIID program “conveniently available to persons throughout this state.” Proposed s. Trans 313.09 of this rulemaking would accomplish that statutory requirement adopting a methodology used by neighboring states. If there are geographical areas where service is not provided, an authorized vendor will be selected at random to provide service in that area. A BAIID provider cannot be selected more than once until all providers have been assigned a service area at least once. The rule will allow service to be provided by a mobile unit. Failure to provide service as required is therefore included in the list of offenses that can lead to revocation or suspension of device approval. For approval for use in Wisconsin, the manufacturer must provide evidence of a sufficient system for maintaining the devices. If the devices become unrepairable due to the passage of time, or are being replaced by newer models, authorization for the old or unrepairable device may be revoked.
Section 343.301(3)(b), Stats., sets requirements BAIID providers must meet with respect to providing service to lower income individuals. The proposed rule requires compliance with the statute as a condition of device being eligible for use in Wisconsin, allowing denial of approval or revocation or suspension of approval if a provider does not comply with the law. The proposed rule also requires the provider of an authorized BAIID to pay the costs related to removal and replacement of any device for which authorization is revoked or suspended. This rulemaking proposes to update communication requirements between device manufacturers and the department consistent with requirements of Iowa, Illinois and Michigan law. Material modifications made to approved devices need to be communicated to the department. If the manufacturer seeks to avoid this state retesting the modified device, submission of test data substantiating that the modifications do not materially affect device performance is required.
Proposed subsection Trans 313.08(1)(e) makes clear that only a manufacturer or its authorized repair agents may repair the internal components of any device. Section Trans 343.10 is updated to reflect the duties expected of service providers by manufacturers today. They inspect devices for tampering or circumvention, calibrate devices, exchange components as needed, and maintain the tools and devices needed to carry out those tasks. They do not open the components unless they are a manufacturer-authorized device repair facility. The rule makes clear that service providers are not required to install BAIIDs on motorcycles or commercial motor vehicles, but that they are required to retain evidence and notify the department if they observe indications of tampering or circumvention while servicing a device. Service providers are required to provide instruction on operation of the device and to make sure the customer knows how to and can start their vehicle using the BAIID as part of their device installation protocol. Finally, the rule requires sufficient mouthpieces be available to customers for them to use the device without danger of viral or other pathogen contamination. Proposed section Trans 313.10(11) would authorize service providers to meet customer needs with mobile service centers. It does require mobile service centers to keep the department apprised of their operations so that the department can audit and review the mobile service center’s operation. Section 347.413, Stats. provides that “No person may remove, disconnect, tamper with, or otherwise circumvent the operation of an ignition interlock device.” In s. Trans 313.14, the department makes clear that it interprets this provision as applying to unauthorized removal of the device. The rule allows customers to request a service provider remove a device in order to obtain a different device. It also allows service providers to remove devices of persons who intentionally damage a device, who don’t pay for it or otherwise comply with their contract, or whose behavior is offensive or abusive. Finally, proposed s. Trans 313.16 outlines other conduct that is prohibited as part of a BAIID program. Persons may not discriminate in providing service, cannot change the breath volume required for a sample to less than 1.5 liters of air, change the device programming, configuration, or components of a device, repair a device without manufacturer authorization, or provide information to the customer that results in a lockout and requires the customer to pay fees to service the device. Subsection Trans 313.16(6) proposes to provide that a manufacturer or vendor cannot prohibit a service provider from offering service for another manufacturer’s device. Service providers under this rule could service more than one manufacturer’s device in the same manner that mechanics may repair any make of automobile. Nothing in the rule would exempt service providers from any of the training and service requirements a manufacturer or vendor imposes on all service providers. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The United States Department of Transportation, National Highway Traffic Safety Administration (NHTSA) adopted and published Model Specifications for Breath Alcohol Ignition Interlock Devices (“BAIID”) in 1992. (57 FR 11772) Federally provided model specifications were meant to standardize BAIID certification requirements across jurisdictions. Included in the model specifications document are requirements for device functionality, measurement accuracy and precision including extreme temperature performance, calibration stability, and rolling retesting features. Although many states incorporated NHTSA’s model specifications into their BAIID certification requirements, significant variability remained. Trans 313 was drafted in 1993 and incorporated requirements from NHTSA’s 1992 Model Specifications for BAIIDs
Prompted by widespread requirement variability across jurisdictions and rapidly evolving BAIID technology, NHTSA updated the Model Specifications document, soliciting comments in 2006 and 2010. (71 FR 8048 and 75 FR 61824, respectively). In 2013, NHTSA adopted and published their Model Specifications for BAIIDs. NHTSA’s 2013 Model Specifications for BAIIDs includes changes to device functionality, test procedures, and performance requirements. (78 FR 26853) This revision of Trans 313 proposes to adopt NHTSAs 2013 Model Specifications for BAIIDs.
Comparison with Rules in Adjacent States:
Illinois, Iowa, Michigan, and Minnesota all have ignition interlock device programs similar to Wisconsin’s. Links to relevant laws, regulations or program materials are provided below and summarized in the table that follows.
Illinois:
Iowa:
Michigan:
Michigan Vehicle Code Act 300 of 1949, 257.625k Ignition interlock device manufacturer; certification; approval; requirements; rules; cost; notice to department by certifying laboratory; list of manufacturers; BAIID manufacturer; approval of BAIID service center; inspections; prohibited conduct by individual; installation requirements; installer qualifications and requirements; approval; renewal. http://www.legislature.mi.gov/(S(jcivly55zk2h4yi0itwrkqn4))/documents/mcl/pdf/mcl-257-625k.pdf.Minnesota:
A side-by-side comparison of program requirements for Wisconsin and its neighboring states is provided on the following table:
Item | Illinois | Iowa | Michigan | Minnesota |
Annual Recertification | Required | | Required | Required |
Calibration & Download | 67 days | real time or 67 days | | 30 days or real time 67 days |
Camera | Required | Required | Required | Required |
Install on CMV | Not Allowed | | | Not Allowed |
Install on motorcycle | Not Allowed | | | Not Allowed |
Medical Exemption | Yes, with rules | | | Yes, with rules |
Oversight Department | Secretary of State | Department of Public Safety | Secretary of State | Driver and Vehicle Services |
Real-time reporting | Allowed | Allowed *if used with fuel cell and pass additional testing, can calibrate every 187 days | | Allowed |
Reciprocity | Yes, with rules | | | Yes, with rules |
Report logs to state | Within 7 days | As requested, 30 days tamper, 10 days missed calibration | | |
Set-point | 0.025 | 0.025 | 0.025 | 0.02 |
Work Exemption | Yes with rules | | | Yes with rules |
Item | Illinois | Iowa | Michigan | Minnesota |
Anti-Circumvention | Required, blow pattern or hum | | | |
BAIID Installer Certification | | | Required | |
Dead Zone | 75 miles | | 50 miles | |
Fee Schedule reported | Required | | | |
Imdemnify State | Required | | Required | |
Journal | Required | | Suggested | |
Liability Insurance | Required | Required | Required | |
List where operate(d) | Required | List where revoked | | |
Maintain customer service number | Monday - Friday, normal business hours | 24/7/365 | | |
Mobile Install | Allowed with rules | | | |
NHTSA Tests | 2013 | 1992 | 2013 | 2013 |
Provide State Staff Training | > 10 hours | | | |
Provide Testimony | Required | | | |
Purge before sample | | Required | | |
Record Retention | 3 years after removal | 5 years after removal | | |
Rectify malfunctioning device | 48 hours | | | |
Report (de)install to state | 7 days | | | |
Send in part of BAIID for calibration/download | allowed | | | |
Service Center certification | | Required | Required | |
Share all documents (P&P, QC, contract, etc) | Required | | | |
Soft/firm-ware modifications | Pre-approved | Pre-approved | Pre-approved | |
Technology Requirements | Not Solid-State | Fuel Cell | | |
Item | Illinois | Iowa | Michigan | Minnesota |
Calibration Window | 30 days 1st, 67 days thereafter | 67 days or more frequently | | |
IRT | 5-15 min | 10 min | 15 min | 5-7 min |
RRT | 2 per hour within 45 minutes of IRT | 2 per hour | 15-45 min | 15-45 min |
Sample window | | | 5 min, multiple attempts | 10 min |
Free Restart | | Yes, unless in RT or failed | Yes, unless failed | |
Horn and/or light | didn’t provide RT sample | >0.025 | >0.025 | |
Lockout | 3 > 0.05 30 min | didn’t provide RT sample | | |
Violation | >10 start fails | fail to complete RT | >0.025 | fail start, 5 min lockout, 10 min to provide pass |
| fail to complete RT | >0.025 | 3 start fails (minor) | fail to pass RT |
| > 0.05 * | bypass | miss calibration (minor) | refuse RT 3x in 7 days |
| Tamper * | tamper | fail to complete RT | Tamper |
| Circumvent * | | OWI arrest | Circumvention |
| Miss Calibration | | Tampering | Operate without BAIID |
| Operate without BAIID * | | Circumvention | ≥0.02 |
| BAIID removed * | | 3 minor violations | Obstruct image capture |
| OWI or alcohol-related charge * | | Remove Device | If cancelled license, failure to provide 30 start samples a month |
Penalty | * = revocation | | Minor = 3 month extension | 1st = 180-day extension |
| 1st = 3-month suspension | | Major = revocation | 2nd = 1-year extension |
| 2nd = 6-month suspension | | | 3rd + = 545-day extension |
| 3rd + = 12-month suspension | | | |
Summary of the Factual Data and Analytical Methodologies:
Section 110.10, Stats., charges the department with responsibility for implementing a breath alcohol ignition interlock device (BAIID) program that will be conveniently available to persons throughout the state. The statute requires that the program include approval criteria for BAIID installation, service, and removal, provisions for reporting BAIID installation, use, and a periodic review of fees customers are charged. It also requires that BAIIDs be available to customers without a court order and that courts may order a lower fee structure for those determined to be indigent. The statute directs the department to adopt rules that implement the statute. The decision to promulgate rules in this environment is therefore legislatively directed. The basic goal of an BAIID program is to improve traffic safety through clearly developed standards that outline the establishment of, participation in, and compliance with the program as well as device functionality requirements. Four main issue areas make up the program: device functionality requirements, provider oversight, participant oversight, and a standardized reporting process. Coleman, Angela, et. al.: Ignition Interlock Program Best Practices Guide, American Association of Motor Vehicle Administrators (2018).
While installed, BAIIDs reduce recidivism and improve traffic safety. Kaufman, Elinore and Wiebe, Douglas: Impact of State Ignition Interlock Laws on Alcohol-Involved Crash Deaths in the United States, American Journal of Public Health (2016); Teoh, Eric, et. al.: State Alcohol Ignition Interlock Laws and Fatal Crashes, Insurance Institute for Highway Safety (2018); Fleming, Susan: Alcohol Ignition Interlocks Are Effective While Installed; Less is Known About How to Increase Installation Rates, United States Government Accountability Office (2014). BAIIDs are designed to prevent a driver from operating a vehicle when the driver’s breath alcohol concentration is at or above a prohibited alcohol concentration (PAC). BAIIDs also require drivers to provide breath samples periodically while operating the vehicle to ensure that their breath alcohol concentration remains below the PAC. Pre-approval of devices and oversight of their providers ensures consistent BAIID functionality and administration throughout the state. Ciccel, De Carlo: Model Specifications for Breath Alcohol Ignition Interlock Devices (BAIIDs), National Highway Traffic Safety Administration (2013). The department has administered the BAIID program since the 1990’s and found it to be effective.
Analysis Regarding Rule’s Effect on Small Businesses:
The department has polled companies that manufacture devices currently approved in Wisconsin to determine what modifications or costs they expect would be associated this proposed rulemaking and that would affect small businesses, such as independent service providers. The department has relied on their expertise in preparing this small business analysis.
Effect on Small Business:
The proposed rule would require BAIIDs installed in Wisconsin to include features not currently required in this state, such as a camera and communications technology. Local service centers would be required to train their installers and service professionals on how to install and service these new features. The businesses would need to make modifications to their installation procedures to implement installation of devices with these new features. The department expects this would have a one-time effect on small businesses that act as service providers.
Because the proposed rule would change many of the Wisconsin program’s requirements and procedures, the department expects all persons involved in the ignition interlock program including manufacturers, service providers, police, assessment and treatment agencies, courts and department personnel will need to learn about the program changes that result from implementation of any rulemaking related to ignition interlocks.
Agency Contact Person:
Diane Brockley-Drinkman
Chemical Test Section
3502 Kinsman Blvd,
Madison 53704-2549
Phone: 608-243-2952
Place Where Comments Should be Submitted, and Deadline: Comments may be submitted to the agency contact person listed above, or through the Legislature’s Administrative Rules website http://docs.legis.wisconsin.gov/code until the deadline given in the forthcoming notice of public hearing. TEXT OF PERMANENT RULE
SECTION 1. Trans 313.01 is amended to read:
Trans 313.01 Purpose. The purpose of this chapter is to establish specifications and requirements of court–ordered ignition interlock devices and their calibration, installation and maintenance as required by s. 347.413 (2), Stats. implement the Wisconsin ignition interlock program consistent with the mandate of s. 110.10, Stats., and consistent with the provisions of ss. 343.10, 343.13(3), 343.301, 343.38(5), 347.413, 940.09(1d), and 940.25(1d) Stats. SECTION 2. Trans 313.01 (note) is repealed.
SECTION 3. Trans 313.02 is amended to read:
Trans 313.02 Applicability. This chapter applies to all law enforcement agencies, manufacturers, vendors, service providers and other persons engaged in court–ordered ignition interlock device program administration in this state.
SECTION 4. Trans 313.03 (3m) is created to read:
Trans 313.03(3m) “Alert mode” means that the device causes the horn or other pronounced emergency signal audible to other drivers and law enforcement to sound, and the vehicle’s emergency lights or visible secondary visual signals apparent to other drivers and law enforcement to flash.
SECTION 5. Trans 313.03 (4m) is created to read:
Trans 313.03(4m) “Applicant” means any person seeking the approval of a device by going through the device approval procedure described in s. Trans 313.04. SECTION 6. Trans 313.03 (7) is amended to read:
Trans 313.03(7) “Calibration” means the processes process which of testing and adjusting a device to ensure an accurate the device is accurately measuring the alcohol concentration reading on a of a breath sample provided to the device.
SECTION 7. Trans 313.03 (8) is amended to read:
Trans 313.03(8) “Chief of the chemical test testing section” means the person assigned the responsibility for the administration and supervision of the breath alcohol testing, approval and permit program of the department.
SECTION 8. Trans 313.03 (9) is amended to read:
Trans 313.03(9) “Circumvention” means an unauthorized, intentional overt act or attempt to start, drive, or operate a vehicle equipped with a device, without the driver of the vehicle providing all required breath samples. Circumvention includes the provision of bogus samples, tampering, the provision of air samples that enable a driver with a prohibited alcohol concentration to start, drive, or operate a vehicle equipped with a device, and failure to complete any required servicing. Circumvention does not include disconnecting the device from its power source during vehicle or device service, nor disconnection of a handset as authorized under s. Trans 313.04(5)(k). SECTION 9. Trans 313.03 (10) is amended to read:
Trans 313.03(10) “Customer” means a person who is required by court order to have has a device installed in a vehicle.
SECTION 10. Trans 313.03 (14) is repealed.
SECTION 11. Trans 313.03 (14m) is created to read:
Trans 313.03(14m) “Fixed, permanent service center” means a facility in a permanent building at which device services can be provided.
SECTION 12. Trans 313.03 (16g) and (16m) are created to read:
Trans 313.03(16g) “Minimum sample acceptance criteria” means the sample meets the criteria established by the manufacturer for detection of whether a given breath sample has been provided by a human being.
Trans 313.03(16m) “Mobile service center” means a service center that operates out of a motor vehicle or trailer.
SECTION 13. Trans 313.03 (16m) (note) is created to read:
Trans 313.03(16g) (note) Note: Mobile service centers typically drive to locations at which they are able to provide convenient service to customers.
