STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
PROPOSED ORDER AMENDING PERMANENT RULE
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The Wisconsin Department of Transportation proposes an order to:
repeal ss. Trans 313.01(note), 313.03(14), (19), (25), (27)(a), (b), and (c), 313.04(5)(e)1., (e)3. a., b., c., and d., 313.10(4)(d), (d)(note), and (6)(b)(note), 313.11, 313.13(1)(c)(note); amend ss. Trans 313.01, 313.02, 313.03(intro), (3), (7), (10), (17), (20), (21), (24), and (26), 313.04(2)(a)(intro), 313.04(2)(b)(intro), 3., 4., 5., and 6., 313.04(3), 313.04(4)(a) and (b), 313.04(5)(a), (c), (d), (d)3., and (e)2., 313.06, 313.07(2), (3), and (4), 313.10(1)(a), (b)(intro), (b)1., (4), (5)(b), (c), (6)(b), (7), and (8), 313.12, 313.13(1)(intro), (3), and (4), 313.14(1), and 313.15; create ss. Trans 313.01(title) and (3), 313.03(3m), (4m), (6m), (14g), (14r), (16g), (16m), (16m)(note), (16r), (20m), (21m), (22m), (23m), (26m), (26m)(note), 313.04(1)(b), (2)(a)6.(note), (2)(b)5.(note), 8., 9., 10., 11., 12., 13., 14., 15., 16., 17., 17.(note), 18., 19., and 20., (c), (3m), (4)(d), and (e), (5)(a)(note), (bm), (ce), (ce)(note), (cm), (cs), (d)2m., 3m., and 8., (dm), (dm) (note), (5)(e)(title), 3.(note), and 4., (f), (g), (h), (h)(note), (i), (j), (k), (L), (m), (n), (6), (6)(note), (7), and (8), 313.10(1)(b)1.(note) and (c), (3)(e)(note), (9)(b), (10), (11), and (12), 313.105, 313.13(2)(b) and (2)(b)(note), 313.14(2)(note) and (3), 313.16 and 313.17; relating to breath alcohol ignition interlock devices and the state ignition interlock program; and affecting small business.
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The Statement of Scope for this Permanent Rule, SS 111-18, was approved by the Governor on November 7, 2018, published in Register No. 755A2 on November 12, 2018, and approved by Secretary of the State of Wisconsin Department of Transportation (“Department”) Dave Ross, as required by s. 227.135 (2), Stats, on February 1, 2017. The analysis below was prepared by the Department. ANALYSIS
Explanation of Agency Authority: Wis. Stat. s. 110.10 charges the Department of Transportation with the responsibility of promulgating rules for the implementation of an ignition interlock device program that will be conveniently available to persons throughout this state. The statute also mandates that the rules include provisions regarding all of the following: (1) Selecting persons to install, service and remove ignition interlock devices from motor vehicles.
(2) Periodically reviewing the fees charged to a vehicle owner for the installation, service and removal of an ignition interlock device.
(3) Requiring ignition interlock device providers operating in this state to establish pilot programs involving the voluntary use of ignition interlock devices.
(4) Requiring ignition interlock device providers operating in this state to provide the department and law enforcement agencies designated by the department with installation, service, tampering and failure reports in a timely manner;
(5) Requiring ignition interlock device providers operating in this state to accept, as payment in full for equipping a motor vehicle with an ignition interlock device and for maintaining the ignition interlock device, the amount ordered by the court under s. 343.301(3)(b), if applicable. (6) Requiring ignition interlock device providers to notify the department of any ignition interlock device tampering, circumvention, bypass or violation resets, including all relevant data recorded in the device’s memory.
(7) Requiring the department, upon receiving notice from a device provider related to an event described in (6), to immediately provide the notice and data from that event to the assessment agency that is administering the violator’s driver safety plan.
Wis. Stat. s. 85.16 provides authority for the department to make reasonable and uniform orders and rules deemed necessary to the discharge of the powers, duties and functions vested in the department. It also allows the department to prescribe forms for applications, notices and reports required by law to be made to the department or which are deemed necessary to the efficient discharge of all powers, duties and functions, and to prescribe the format and content of the forms and the mechanism or manner by which those applications, notices and reports may be filed or submitted to the department. Wis. Stat. s. 227.10(1) requires all state agencies to promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute. This rulemaking sets forth general policies and interpretations of statutes related to the ignition interlock program in this state. Wis. Stat. s. 343.02 directs the department to administer and enforce chapter 343, Stats., and provides authority for the department to promulgate rules the secretary considers necessary for that purpose. Any rules promulgated may not conflict with and must be at least as stringent as standards set by the federal commercial motor vehicle safety act, 49 USC 31301 to 31317 and the regulations adopted under that act. The statute also documents that the state of Wisconsin assents to the provisions of those federal laws and regulations, and declares that the state will make provisions to implement and enforce those laws and regulations so as to ensure receipt by this state of any federal highway aids that have been or may be allotted to the state under 23 USC 104 (b) (1), (2), (5) and (6), including all increased and advanced appropriations. Related Statute or Rule: Section 343.301 establishes the basis for court-ordered installation of breath-alcohol ignition interlock devices (“BAIIDs”) in Wisconsin. Courts are required to order a person’s operating privilege restricted to operating BAIID-equipped vehicles if the driver refused chemical tests or is convicted of repeatedly operating while intoxicated or having an alcohol concentration of 0.15 or more as a first offender. s. 343.301(1g), Stats. Courts are also required to order the driver to install a BAIID on each of his or her vehicles, but can exclude vehicles such as motorcycles on which a device cannot currently be installed, or exclude vehicles due to the financial burden installation would cause the driver. s. 343.301(1g)(am) and (1m), Stats. The statute specifies that the BAIID operating restriction begins upon entry of the court order and length of time it remains effective. s. 343.301(2m), Stats. The statute also provides that the court may limit the expense to impoverished consumers to one-half the cost per day of installing and maintaining the device. s. 343.301(3)(b), Stats. Section 343.10, Stats., and Ch. Trans 117, Wis. Admin. Code, which deal with the issuance of occupational licenses, are also related to this proposed rulemaking. Subdivision 343.10(5)(a)3., Stats., provides that if a court orders a driver’s operating privilege restricted to “BAIID” equipped vehicles, any occupational license the department issues must include that restriction. s. 343.10(7)(cm), Stats., prohibits the department from issuing such an occupational license until the applicant proves that the motor vehicle the applicant will be permitted to operate has been equipped with a functioning BAIID. Other licenses issued to drivers subject to a BAIID order also must contain a BAIID restriction. ss. 343.13(3) and 343.38(5), Stats. Behavioral requirements related to BAIIDs and penalties for violations of those requirements are established in s. 347.413, Stats. Plain Language Analysis: This rulemaking is intended to update Ch. Trans 313 to reflect changes in legislation, accommodate changes in ignition interlock design, features, performance, programming capability of, consider best practices recommended by the American Ignition Interlock Program Administrators (AIIPA) and the American Association of Motor Vehicle Administrators (AAMVA) as well as laws that have been implemented by neighboring states. Chapter Trans 313 was first adopted in 1993, when installation of a breath alcohol ignition interlock device (“BAIID”) was one of three vehicle-related “sanctions” available to courts when sentencing drivers convicted of repeat operated while intoxicated offenses. Operating privilege restrictions were limited to persons that were issued occupational licenses. In 1999, Wisconsin Act 109 added voluntary installation of an ignition interlock device as an alternative to vehicle immobilization. The early semi-conductor-based BAIIDs were prone to interference from chemicals other than alcohol, had limited functionality, and could be easily bypassed. Over time, BAIID providers incorporated anti-circumvention sampling techniques to reduce the likelihood that a compressor or other air supply could be substituted for human breath. At that time, accessing the data stored in the device required removal of the handset from the vehicle and physically printing pages and pages of data that was not easily read or interpreted. At that time, there were no requirements to ensure a device was properly calibrated, reducing reliability of chemical analysis results. Early devices did not provide a means of determining who submitted a breath sample or who was operating the vehicle at the time the test was provided. Because 60 days or longer could pass between the time a sample was submitted and the time the results were retrieved from the device, it was very difficult to determine who was responsible for the failed sample. Accordingly, the devices and reports from the devices provided limited value to law enforcement and treatment providers.
Modern BAIIDs make use of electrochemical fuel cells to measure alcohol. Unlike the early devices, these fuel-cell based BAIIDs do not identify other compounds as if they are alcohol. The internal workings of modern BAIIDs can incorporate technology that evaluates a sample to determine whether detected values for humidity, temperature, or the chemical composition of the sample are consistent with human breath. Those technologies make successful circumvention more challenging. Instead of multi-color lights and scrolling LEDs, modern devices have liquid crystal and full-color displays. Devices can now incorporate cellular, wi-fi, or other electronic communication technologies to upload data remotely for official use and storage in an online reporting system. Virtually all devices currently marketed in the U.S. have an option to mount a small camera in the vehicle, which has the advantage of allowing positive identification of the person submitting a breath sample or attempting to circumvent the BAIID.
In this rulemaking, the department proposes to update ch. Trans 313 to incorporate these technological advances and adopt best practices of consortium groups that result in more uniform device and reporting requirements nationwide. Each of the surrounding states, Minnesota, Iowa, Illinois, and Michigan have updated their rules and regulations to incorporate these improvements in recent years. While drafting the proposed rule, we incorporated many of these improvements, particularly in the areas of applications for approval, device function, and data reporting. This rulemaking also proposes to amend s. Trans 313.01 to update statutory references in that section. The Wisconsin statutes related to BAIIDs in Wisconsin have been significantly changed since the Department promulgated Ch. Trans 313 in 1993. The department proposes to update the definitions contained in s. Trans 313.03 to reflect changes in how ignition interlock devices function, current industry trends, to adopt industry-standard vocabulary, and to incorporate best practices recommended by the American Ignition Interlock Program Administrators (AIIPA) and the American Association of Motor Vehicle Administrators (AAMVA). New definitions included in this section include 313.03(3m), which adds a definition for “alert mode” to address automotive technology advances. Older vehicles had standard headlights and horns that could be activated by direct electrical connection to the vehicle’s lights and horn systems. Many vehicles today utilize a controller area network (CAN bus) through which microcontrollers regulate various vehicle components, including the horn. This modification eliminates traditional wiring for the horn, and greatly complicates the ability to use the horn as a signal that a driver has failed a required BAIID test while driving. The definition now permits use of systems other than the vehicle’s built-in lights and horn to create flashing lights and sound in alert mode.
Other technological advances in vehicles, including those with motors that are powered by electricity, or a combination of fuel products and electricity, have resulted in changes to language to reflect engine or vehicle operation and are no longer limited to the traditional “ignition.” For example, Trans 313.03(20) now defines “restart” to include activation of electric and hybrid vehicles as well as traditional combustion engine vehicles.
Section Trans 313.03(16g) is proposed to add a definition for “minimum sample acceptance criteria.” Each manufacturer evaluates breath quality in order prevent circumvention of the device. This may include the capacity to monitor for volume, flow, temperature, humidity or any combination of those factors, or to chemically analyze the sample for consistency with the chemical composition of human breath. Each breath sample is assessed to determine whether it is being provided by a human being and to evaluate the sample’s alcohol concentration. At the time the existing rule was written, a mechanical purge, literally pulling outside air through the device, was required. This has been replaced by automatic clearing and establishing baseline before notifying the user they can provide a breath sample. As a result, the definition for “purge,” in s. Trans 313.03(19), is being deleted as unnecessary. The existing rule definition for tampering in s. 313.03(9) considered any disruption of power to the device to qualify as prohibited tampering. Proposed revisions to that definition and the creation of s. Trans 313.04(5)(k) in this rulemaking would specifically allow removal of the handset when the vehicle is turned off, for vehicle repair and service, and for calibration of BAIID. Allowing the handset to be removed when the vehicle is turned off is beneficial in cold weather because it will allow the device to warm up and measure a breath sample more quickly than a device that has been stored in a cold car. It will also reduce battery drain required to preheat the device before measuring a sample in cold weather. Additional new defined terms in proposed s. Trans 313.03(21m), 313.03(16r), 313.03(20m) and 313.03(23m) for “sample sequence,” “passing breath sample,” “result” and “start sequence” clarify various operations performed by the device and differentiate between functions used when starting a vehicle and those used when it is being operated. The current rule assumes that manufacturers produce and market BAIIDs and that they employ service centers to install and service the devices and that they would apply for device approval in this state. This rule takes a broader view of the marketplace and attempts to allow for future development of the industry. Manufacturers produce and repair devices, and those devices must be approved by the department under this proposed rule. The department uses the term “vendor” to identify the person that markets the device. Finally, a service center may install or provide limited service for a device, such as exchanging the handset, but may not open the device to service it. Any of these entities may apply to have a device approved for use in the State of Wisconsin. Definitions of “applicant”, “vendor”, “manufacturer”, and “service provider” in amended s. Trans 313.03 reflect this approach. While the existing rule requires each service center to be at a fixed location, changes to the definition of “service center” in this rulemaking also makes it clear that the state will allow service of BAIIDs by mobile service centers.
Industry standard and AIIPA standard vocabulary terms proposed for inclusion as defined terms in the rule are the definition for calibration in Trans 313.03(7), for “violation” in Trans 313.03(26m) and for “permanent lockout” Trans 313.03(17).
Under existing Ch. Trans 313, repeated failed breath alcohol tests can result in a “temporary lockout” that prevents anyone from attempting to start the vehicle for 15 minutes. The department has received numerous complaints regarding this requirement over the years, and it is not a requirement in most states. The department proposes in this rulemaking to eliminate the 15-minute temporary lockout requirement. The department believes the requirement is especially punitive for individuals that struggle to provide samples. A forced delay in starting the car may be problematic or dangerous in sub-zero temperatures. Finally, inadvertent consumption of small amounts of alcohol from a beverage, food, or personal hygiene product, will not result in a significant delay to the driver under the proposed amendments. A person should be able to rinse his or her mouth with fresh water, pass the chemical analysis test, and operate the vehicle. A BAIID will prevent vehicle operation when a subject’s alcohol concentration is above the device’s setpoint. The required delay does nothing to improve that performance. Other changes or deletions in the definitions will align the chapter with court-ordered sanctions, to properly indicate the name of the unit that is responsible for approval of ignition interlock devices, delete a term that was not included in the chapter (filtering agents) and correct grammatical errors.
The requirements currently contained in section Trans 313.04 include sections on the application, a time for decision, the evaluation process, and standards and specifications. The proposed changes will more clearly define the application process, adopt the most recent federal model specifications, and, by reorganizing content, more clearly specify requirements for device function and reporting. One area that has been problematic for the last decade has been ensuring that the operating system (software, firmware, configuration files, and device settings) has not been modified by the manufacturer. The proposed rule requires the device to provide its configuration information as part of its reporting function. This reporting will make it easier for service providers, law enforcement, and the department to track modifications made to the device.
Subsection Trans 313.04(1) is proposed to be split into two sections to ensure that any person distributing a device in this state does so with a compliant BAIID program. Accordingly, the proposed rule makes device approval personal to the applicant. If an applicant sells or transfers its business to a third party, that third party needs to re-apply for device approval in this state. Retesting of the device is not required, provided it is unchanged, but review of the new applicant’s practices, procedures, and policies is undertaken so that the state can be satisfied that the devices will continue to be distributed and serviced in a manner conforming to the requirements of Wisconsin law by the new applicant.
Section Trans 313.04 describes the application process for approval of a BAIID in Wisconsin. This rulemaking proposes a number of changes to the rule consistent with best practice recommendations of both AAMVA and AIIPA. The application process as defined by the proposed rule, requires a standard set of materials be submitted as part of the application. These materials are used by the department to determine whether a proposed device meets the requirements contained in this chapter. As proposed to be amended by this rulemaking, s. Trans 313.04 would require applicants for BAIID approval to provide various information as part of that application. Operating instructions, training materials, repair and quality assurance protocols, and maintenance and removal instructions are provided as part of the application to facilitate testing of the device consistent with its intended operation and maintenance procedures and to provide a basis for determining whether service providers for the device are following manufacturer-specified protocols in their service procedures. The department proposes to require program participants to submit copies of contracts or other agreements used between the program participant and its customer. Access to these documents and participant charges for device installation, use, and removal will enable the department to better respond to citizen questions and complaints. Furthermore, the department is requiring costs of device installation, use, removal, and all possible peripheral costs to be disclosed to the customer in the contract. This should reduce complaints from citizens about alleged unscrupulous practices by some providers. The department believes that transparency in contract provisions and fees should enhance competition in the BAIID marketplace. Other materials required are proof that the device has met federal regulatory testing protocol requirements and authorization to obtain information from other states that have reviewed a device. These materials will assist the department to identify deficiencies in device function and performance; correspondence with other regulatory agencies may streamline or expedite device evaluation and approval process. Evidence of an applicant’s valid legal status to conduct business in this state and contact information for its registered agent is also required.
The BAIID device applicant must agree to provide testimony in court if its participation is needed for prosecution of a BAIID restricted driver who violates the laws related to installation or use of the device. State employees overseeing the interlock program would probably not qualify as expert witnesses under s. 907.02, Stats. Finally, the proposed rule requires the applicant to promptly respond to questions or requests for information. The primary reason for this requirement is to keep an evaluation moving along as quickly as possible to reduce delay for other applicant devices waiting to be tested. To facilitate orderly processing of applications, the rule proposes to create a queue of pending applications and a procedure to promptly work through requests for approval in queue order. This should provide more predictability for applicants regarding the expected timeframe for department evaluation of a device.
The evaluation process may be the most important portion of the device approval process. Department staff verifies device performance, functionality, and reporting requirements contained in this chapter by testing one or more standalone units in a laboratory and then, after ensuring proper function, in a state-owned vehicle. The only way to successfully and uniformly conduct some of these tests is to deactivate settings that identify attempts to circumvent the device. This section specifies that the applicant must provide test devices with differing configurations to facilitate this testing. It requires that the department have immediate access to test data in order to speed up the evaluation process. In the event a device does not pass, s. Trans 313.04(4)(e) provides for a 6-month waiting period before re-evaluation can be started. The department believes that period allows ample time for an applicant to address deficiencies in their device revealed in earlier testing. If the applicant is able to prove material changes have been made to the device, the department may waive the 6-month waiting period. This will hopefully result in an approval from the department at the following evaluation and provide an opportunity for the department to evaluate other instruments in the queue, if any.
