WASHINGTON STATE PATROL

[Filed December 2, 2019, 8:11 a.m.]

Preproposal statement of inquiry was filed as WSR 19-04-024.

Title of Rule and Other Identifying Information: Ignition interlock device security and unlock codes.

Hearing Location(s): On January 9, 2020, at 8:30 a.m., at 106 11th Avenue S.W., Room 4015, Olympia, WA 98504.

Date of Intended Adoption: January 10, 2020.

Submit Written Comments to: Kimberly Mathis, Agency Rules Coordinator, 106 11th Avenue S.W., email wsprules@wsp.wa.gov, by January 8, 2020.

Assistance for Persons with Disabilities: Contact Kimberly Mathis, phone 360-596-4017, email wsprules@wsp.wa.gov, by January 8, 2020.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Ignition interlock technology has advanced significantly in recent years to accommodate a secure and reliable method of remotely unlocking ignition interlock devices during a lockout condition. This rule would allow ignition interlock manufacturers to utilize this technology while, at the same time, creating a secure and accountable method of testing and oversight of any use by the Washington state patrol (WSP).

Reasons Supporting Proposal: With the proper safeguards in place, lockout override technology is beneficial to all of the parties involved and allows for a more streamlined process while maintaining public safety and accountability.

Statutory Authority for Adoption: RCW 43.43.395, 43.37.005, 46.04.215.

Statute Being Implemented: RCW 43.43.395, 43.37.005, 46.04.215.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: WSP, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: WSP, Ignition Interlock Unit, Seattle, Washington, 206-720-3018.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rule content is explicitly and specifically dictated by statute.

AMENDATORY SECTION(Amending WSR 12-17-153, filed 8/22/12, effective 10/1/12)

WAC 204-50-090Ignition interlock device security.

(1) A manufacturer and its vendors, service center(s), and ignition interlock technicians must take all steps necessary to prevent tampering or physical circumvention of an ignition interlock device. These steps must include:

(a) Special locks, seals, and installation procedures that prevent or record evidence of tampering and/or circumvention attempts;

(b) Installation and/or use of all anticircumvention features required under this chapter;

(c) Breath anticircumvention features such as alternating breath flow, hum tone, breath temperature and any other impaired driving section approved anticircumvention features must be activated during all start up and random breath tests;

(d) Changes in software and ignition interlock device configuration, including anticircumvention features and the Washington state configuration profile will only be administered by the manufacturer.

(2) In addition, a service center or ignition interlock technician will affix to the ignition interlock device a label containing the following notation: "Warning - This ignition interlock device has been installed under the laws of the state of Washington. Attempts to disconnect, tamper with, or circumvent this ignition interlock device may subject you to criminal prosecution. For more information, call (insert manufacturer, vendor or service center's toll free number)."

(3) No owner or employee of a manufacturer, vendor or service center may authorize ((or assist with the disconnection of an ignition interlock device, or enable))or employ the use of any (("emergency bypass" mechanism or any other "bypass")) procedure ((that))which allows a ((person restricted to use the)) vehicle equipped with a functioning ignition interlock device((,)) to start or operate ((a vehicle)) without providing all required breath samples. ((Doing so may subject the person to criminal prosecution under RCW 46.20.750 and may cause the revocation of a manufacturer's, vendor's, service center, and/or ignition interlock technician's certification under chapter 204-50 WAC.))

(4) Except as provided in WAC 204-50-092, the sale or use of any type of ((remote code))lockout override allowing ((a restricted driver))any user to bypass a lockout condition ((or any user to not provide a breath sample on vehicle start up)) is prohibited.

(5) All known ignition interlock device circumventions or tampering must be reported to the impaired driving section in an impaired driving section approved electronic format within seven calendar days of determining that an ignition interlock device was circumvented or tampered with.

WAC 204-50-092Lockout override.

(1) Except as provided in subsection (2) of this section, the manufacturer may, in its discretion, authorize and provide a lockout override when a lockout occurs.

(a) The lockout override shall deactivate the lockout condition for a period of up to four hours. If the device has not been serviced by a service center prior to the expiration of the authorized lockout override period, a lockout override shall not be authorized again until the device has been physically inspected and the calibration checked at a service center.

(b) After a lockout override has been authorized by the manufacturer, the lockout override must be activated within a maximum of twenty hours. After twenty-four hours, the lockout override shall no longer be capable of overriding a lockout.

(c) The activation of a lockout override shall not render the interlock device or any attached components inactive. The interlock device must operate in the same manner as required in chapter 204-50 WAC, including all start up and random breath tests.

(d) All lockout override procedures must be randomized or secured to prevent unauthorized duplication during future lockout conditions or on other ignition interlock devices.

(2) A lockout override shall not be authorized in any of the following circumstances:

(a) To allow an ignition interlock technician to override a lockout; or

(b) To override any temporary lockout or mandatory waiting period; or

(c) When the vehicle equipped with an ignition interlock device is located in a state other than Washington or outside the United States, unless a lockout override is authorized by the laws of the jurisdiction in which the vehicle is located.

(3) All lockout override procedures must be tested by the impaired driving section prior to approval and use in Washington.

(a) Annual testing and evaluation of any lockout override method approved for use will be completed by the impaired driving section in accordance with WAC 204-50-040.

(b) Any proposed modification to an approved lockout override procedure must be completed in accordance with WAC 204-50-050.

(4) A manufacturer must notify the impaired driving section if any other lockout override procedures are in use in other jurisdictions and provide safeguards to ensure unapproved lockout override procedures will not be used in Washington.

(5) The authorization and activation of any lockout override must be reported by the manufacturer to the impaired driving section in an approved format within seven calendar days of authorization by the manufacturer.

(6) The activation of any lockout override must be displayed within the data log of the device, which is viewable by the impaired driving section. The data log must display all standard data log information while the lockout override is active.

(7) As used in this section, "lockout override" means a secure and randomized code, randomized procedure, or manufacturer controlled remote connection procedure used to temporarily override or deactivate a lockout condition on a certified ignition interlock device.