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May 02, 2024 Spring 2024

But Your Honor! Ignition Interlock Devices and Hybrid/Electric Vehicles

Hon. Kevin L. Fitzwater, New Mexico Judicial Outreach Liaison

In an impaired driving case, has counsel objected to the installation of an ignition interlock device because their client drives an electric vehicle or a hybrid? If a judge presides in a jurisdiction mandating the installation of an ignition interlock device (IID) a simple answer ensues – the law must be followed. Recent research supports the conclusion that IID laws can prevent alcohol-impaired or alcohol-involved crash deaths. But in those jurisdictions and circumstances where the use if an IID remains in the court’s discretion, what should the court consider in its decision? Does the argument that an IID presents challenges with electric vehicles or hybrids achieve merit?

According to the Association of Ignition Interlock Program Administrators and the Coalition of Ignition Interlock Manufacturers, practically every vehicle is capable of having an IID installed and utilized by the driver. The design of an IID permits connection to the starter, ignition, or computer system, preventing the vehicle from being started except upon the collection of a satisfactory breath sample. The size of the device mirrors that of an entertainment remote control. Prior to attempting to start the vehicle, the vehicle, the driver must blow into the machine. If the device detects the presence of alcohol, a “fail” occurs and the vehicle cannot be started. Upon a failure, a lockout period occurs, the length of time varying on provider and other legal requirements. The vehicle then should be taken to the installer for inspection. Most states require a report be provided to the court, generally submitted quite quickly, often within minutes.

The IID program includes periodic, or “rolling” tests. After a pre-determined period of time, the IID requires a new breath sample. If the periodic testing results in a “fail,” the system records and reports the result. All tests measure Breath Alcohol Content (BAC) and include the specific results in the report. Some IID devices includes measures to ensure testing integrity. In some jurisdictions, and available from many providers, a camera equipped IID can be ordered, which records any attempt to evade the test, such as having another person blow into the device or the use of some form of method to submit previously captured air.

Depending on the make and model of the vehicle, installation of an IID may require some modifications to the vehicle’s options. Since the system requires a breath sample in order to start the vehicle, remote starting features will be unavailable. Some vehicles include a “start/stop” feature, where the engine shuts off upon firm brake application (such as at a red light) and starts again when the accelerator is engaged. The “start/stop” feature generally must be disabled upon the installation of an IID.

Because of the growing prevalence of electric vehicles and hybrids, courts undoubtedly will be confronted with counsel’s request to modify or ignore an IID requirement when the client drives an electric vehicle or a hybrid, consider the following common misconceptions about the use of ignition interlock devices:

Myth - An ignition interlock random retest can shut down a car in traffic, causing a dangerous situation.

Fact - If alcohol is detected, the IID will NOT turn the engine off while the vehicle is in motion. It may, however, signal the driver to stop by blowing the horn and flashing the lights.

Myth - An IID drains the car battery.

Fact - The device will not drain the battery unless the vehicle is not started for approximately 10 consecutive days.

Myth - Spicy food will cause the device to fail.

Fact – This phenomenon does not occur with devices specified for alcohol testing. Modern ignition devices use fuel cell technology which eliminates this as a variable.

Myth - Cigarette smoke and chewing tobacco may cause false positives.

Fact – Cigarette smoke and chewing tobacco will not result in a false positive BAC test on an IID. However, smokers are advised never to blow smoke into an IID and should take several deep breaths before introducing a sample to prevent damaging the device.

Myth - Perfume, hair spray, cologne and hand sanitizer can cause a “fail.”

Fact - Although many of scents and hand sanitizers contain a type of alcohol, the IID rarely detects alcohol in other products unless sprayed directly into the device. Drivers are advised not to apply scents and hand sanitizers in the vehicle.

Myth - Mouthwash and mouth sprays can cause the device to fail.

Fact – Be aware of this one! Mouthwash and sprays usually contain up to 30% alcohol and will likely react as alcohol in all interlock devices. The BAC can register as high after use of mouthwash or sprays as 0.25 but will dissipate within 15 minutes, and in less time if the mouth is rinsed with water. IDD drivers receive instruction on the use of mouthwash and are told to use non-alcoholic washes and rinse before every test.

If a judge entertains an objection from counsel on the installation of an IID, a thorough analysis of any arguments will likely lead to one result – vehicle type should not serve as an excuse for a defendant to avoid a mandatory or even discretionary IID. Almost all vehicles can easily support an IID. The complexity of the installation (and the cost and installation time) may vary from the make and model of the vehicle. Installation in a hybrid or and electric vehicle may involve interacting with fiber optics and other recent technology. The IID provider, though, can request the schematics from the vehicle manufacturer to facilitate installation, which will ensure compliance with warranty and other operational concerns. With very rare exceptions, vehicle manufacturers cooperative with requests for information to accommodate IID installation. Utilizing an IID with an electric vehicle or hybrids may, however, increase installation costs and installation and removal times. Some providers may chose not to service certain vehicles, which could require a driver to shop around to locate an available installer. But to be sure, challenges locating a service provider represents a rare issue, one that the driver can resolve with minimal effort.

In other words, when faced with an objection to IID order for a driver with an electric vehicle or hybrid, the rationales to overcome IID use will rarely be overcome merely because of the vehicle type. So – “Counsel, your argument is appreciated, but for the reasons stated above, my order stands.” And the roads are safer as a result.

    Hon. Kevin L. Fitzwater (ret.)

    New Mexico Judicial Outreach Liaison

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