RULE TEXT
A revised Title 9 NYCRR Part 358 effective November 15, 2017 reads as follows:Part 358 - Handling of Ignition Interlock Cases Involving Certain Criminal Offenders.
Section 358.1 - Objective.
Section 358.2 - Applicability.
Section358.3 - Definitions.
Section 358.4 - County Ignition Interlock Program Plan.
Section 358.5 - Approval Process and Responsibilities of Qualified Manufacturers.
Section 358.6 - Cancellation, suspension, and revocation of qualified manufacturers, and installation/service providers,and certified ignition interlock devices.
Section 358.7 - Monitoring.
Section 358.8 - Costs and maintenance.
Section 358.9 - Record Retention and Disposition.
Section 358.10 - Liability.

Section 358.1 - Objective.
This Part’s objective is to promote public/traffic safety, offender accountability, and quality assurance through theestablishment of minimum standards for the usage and monitoring of ignition interlock devices imposed by a criminal
court involving a felony or misdemeanor charge or conviction under the Vehicle and Traffic Law or Penal Law or arisingfrom a youthful offender adjudication replacing any such conviction.
Section 358.2 Applicability.
This Part shall be applicable to every county, monitor, and operator, and shall govern qualified manufacturers andinstallation/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.
1Section 358.3 Definitions.
When used in this Part:(a)

The term “blood alcohol concentration” or “BAC” shall mean the weight amount of alcohol contained ina unit volume of blood, measured as grams ethanol/ 100 ml. blood and expressed as %, grams %, %weight/volume (w/v), and % BAC. Blood alcohol concentration in this Part shall be designated as %
BAC.

(b)

The term “certificate of completion” shall mean a document issued by the monitor after the conclusion of
the ignition interlock period set by the criminal court, including any extensions or modifications as may
have subsequently occurred which shows either satisfactory completion of the ignition interlock condition
or a change by the court in a pre-sentence order no longer requiring the need for a device, or a change inthe conditions of probation or conditional discharge no longer requiring the need for a device after
completion of the minimum ignition interlock period.

(c)

The term “circumvent” shall mean to request, solicit or allow any other person to blow into an ignitioninterlock device, or to start a motor vehicle equipped with the device, for the purpose of providing theoperator whose driving privileges is so restricted with an operable motor vehicle, or to blow into an
ignition interlock device or start a motor vehicle equipped with the device for the purpose of providing an
operable motor vehicle to a person whose driving privilege is so restricted or to tamper with an operable
ignition interlock device.

(d)

The term “county” shall mean every county outside of the city of New York, and the City of New York as
a whole.

(e)

The term “county executive” shall mean a county administrator, county manager, county director orcounty president and in cities with a population of one million or more, the mayor.

(f)

The term “division” shall mean the division of criminal justice services.
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(g)The term “drinking driver program” shall mean an alcohol and drug rehabilitation program establishedpursuant to section 1196 of the Vehicle and Traffic Law.

(h)

The term “Emergency Notification Program” shall mean a protocol that utilizes real time data reportingand provides timely notification to law enforcement agencies regarding at minimum failed or missedrolling re-tests.

(i)

The term “failed tasks” shall mean failure to install the ignition interlock device or failure to comply witha service visit or any requirement resulting therefrom as prescribed by this Part.

(j)

The term “failed tests” shall mean a start-up re-test or rolling re-test at or above the set point, or a missedrolling re-test.

(k)

The term “failure report recipients” shall mean all persons or entities required to receive a report from themonitor of an operator’s failed tasks or failed tests pursuant to a county’s plan which may include, but is
not limited to the applicable court, district attorney, operator’s alcohol treatment provider, and thedrinking driver program, where applicable.

(l)

The term “ignition interlock device” shall mean any blood alcohol concentration equivalence measuring
device which connects to a motor vehicle ignition system and prevents a motor vehicle from being started
without first determining through a deep lung breath sample that the operator’s equivalent blood alcohol
level does not exceed the calibrated setting on the device as required by standards of the department ofhealth in Section 59.10 of Title 10 of the Official Compilation of Codes, Rules and Regulations of theState of New York.

(m)

The term “installation/service provider” shall mean an entity located in New York State approved by aqualified manufacturer that installs, services, and/or removes an ignition interlock device.

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(n)

The term “lockout mode” shall mean circumstances enumerated in this Part which trigger the ignitioninterlock device to cause the operator’s vehicle to become inoperable if not serviced within five (5)calendar days.

(o)

The term “monitor” shall mean the local probation department where the operator is under interim
probation supervision or probation or any person(s) or entity (ies) designated in the county’s ignitioninterlock program plan for any operator granted conditional discharge or otherwise required to install an
ignition interlock device and undergo monitoring in advance of sentencing pursuant to court order.

(p)

The term “operator” shall mean a person who is subject to installation of an ignition interlock device
arising from a felony or misdemeanor charge or conviction under the Vehicle and Traffic Law or the
Penal Law or arising from a youthful adjudication of any such crime.

(q)

The term “qualified manufacturer” shall mean a manufacturer or distributor of an ignition interlock device
certified by the New York State department of health which has satisfied the specific operational
requirements herein and has been approved as an eligible vendor by the division in the designated region
where the county is located.

(r)

The term “real time reporting” shall mean the contemporaneous transmission of data of particular events,
as defined in Section 358.5(c) (6), to a specified monitoring entity as the event occurs or as soon as
cellular reception permits.

(s)

The term “region” shall mean counties comprising an area within New York State designated by thedivision where a qualified manufacturer is authorized and has agreed to service.

(t)

The term “start-up test” shall mean a breath test taken by the operator to measure the operator’s blood
alcohol concentration prior to starting the vehicle’s ignition.

(u)

The term “start-up re-test” shall mean a breath test taken by the operator to measure the operator’s blood
alcohol concentration required within five (5) to fifteen (15) minutes of a failed start-up test.
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(v)The term “rolling test” shall mean a breath test, administered at random intervals, taken by the operator
while the vehicle is running.

(w)

The term “rolling re-test” shall mean a breath test, taken by the operator while the vehicle is running,
within one (1) to three (3) minutes after a failed or missed rolling test.
(1)

The term “failed rolling re-test” shall mean a rolling re-test in which the operator’s BAC is at or
above the set point.

(2)

The term “missed rolling re-test” shall mean failure to take the rolling re-test within the time
period allotted to do so.

(x)

The term “service period” shall mean the length of time between service visits.

(y)The term “service visit” shall mean a visit by the operator or another driver of the subject vehicle to orwith the installation/service provider for purposes of having the ignition interlock device inspected for
repair, defect, and detection of tampering and/or circumvention, downloaded, recalibrated, or maintained
as authorized by this Part.

(z)

The term “set point” shall mean a pre-set or pre-determined BAC setting at which, or above, the device
will prevent the ignition of a motor vehicle from operating.

(aa)

The term “STOP−DWI” shall mean special traffic options program−driving while intoxicated.

(bb)

The term “tamper” shall mean to alter, disconnect, physically disable, remove, deface, or destroy anignition interlock device or any of its component seals in any way not authorized by this Part.

Section 358.4 County Ignition Interlock Program Plan.
(a)Every county shall establish a county ignition interlock program plan with respect to usage of ignitioninterlock devices and monitoring the compliance of an operator subject to installation of an ignitioninterlock device with monitoring as directed by a criminal court. Such plan shall be approved by the5county executive. A county may submit an amended plan on its own initiative, which shall be approvedby the county executive. Where a plan has been amended by the county, in whole or in part, it shall bepromptly filed with the division in advance of its effective date. The division may also require
modification or updates of any county plan or amended plan as it deems necessary to be consistent withlaw or regulatory provisions.
(b)Every county shall develop a plan in consultation with the county’s probation director, district attorney,
and in New York City the district attorney from each of the five boroughs, sheriff or Police
Commissioner where applicable, STOP−DWI Coordinator, a representative of its drinking driver program
where applicable and where more than one program exists in the county, a representative designated by
the county executive, a superior and local criminal court judge designated by the administrative judge forthe county, and in New York City a superior and local criminal court judge designated by the deputy chief
administrative judge, a representative of an agency providing legal services to those unable to afford
counsel in criminal cases designated by the county executive. Nothing herein shall prohibit a county fromconsulting with other persons or entities as the county executive deems appropriate with respect todevelopment of its plan.

(c)Every plan shall specify monitoring by the probation department where the operator is subject to a periodof either interim probation supervision or probation and may designate one or more alternative persons or
entities, in lieu of the probation department, responsible for monitoring where an ignition interlock device
has been:(i)

imposed pursuant to a conditional discharge or(ii)

imposed by court order in advance of sentencing requiring monitoring.

An alternative person or entity may include but is not limited to the sheriff, police commissioner, district
attorney, STOP−DWI coordinator, traffic safety board representative, drinking driver program, treatment
alternative for safer communities program, or any other similar individual, agency, or organization.
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Nothing shall preclude a county from sharing monitoring resources, including equipment, with anothercounty to effectuate the provisions of this Part.
(d)

Every plan at a minimum shall:(1)

designate the persons or entities, or combination thereof, responsible for monitoring an operator’scompliance with an ignition interlock requirement in cases where an operator does not receive
either a period of interim probation supervision or probation; establish that where an operator isunder either interim probation supervision or probation, the probation department selects the
specific class and features of the ignition interlock device available from a qualified manufacturer
in its region. The operator may select the model of the ignition interlock device, meeting thespecific class and features selected by the probation department from a qualified manufacturer inthe operator’s region of residence;(2)

establish that where an operator has received a sentence of conditional discharge, the monitor
shall select the class of ignition interlock device available from a qualified manufacturer in its
region for any such operator. The operator may select the model of the ignition interlock device
from within the class designated by the monitor from a qualified manufacturer in the operator’s
region of residence;(3)

establish that where an operator has been court ordered to install an ignition interlock device inadvance of sentencing with monitoring, other than interim probation supervision, the monitor
shall select the class and features of ignition interlock device available from a qualified
manufacturer in its region for any such operator. The operator may select the model of theignition interlock device from within the class designated by the monitor from a qualified
manufacturer in the operator’s region of residence;(4)

in the event more than one qualified manufacturer does business within its region, the county
shall establish an equitable procedure for manufacturers to provide ignition interlock devices
7without costs where an operator has been determined financially unable to afford the costs andhas received a waiver from the sentencing court. The equitable procedure should be based upon
proportion of ignition interlock devices paid to each qualified manufacturer by operators in the
county;(5)through any available funding earmarked for such purpose, establish a distribution formula forprobation supervision and/or monitoring purposes associated with this Part;(6)

establish a procedure whereby the probation department and any other monitor will be notified nolater than five (5) business days from the date an ignition interlock condition is imposed by thecriminal court, any court approval authorizing reduction in breath sample as authorized by section
358.5, any waiver of the cost of the device granted by the criminal court, and of any intrastatetransfer of probation or interstate transfer of any case which either has responsibility to monitor.
Such procedure shall also establish a mechanism for advance notification as to date of release
where local or state imprisonment is imposed; and(7)establish a procedure governing failure report recipients, including method and timeframe withrespect to specific notification and circumstances. At a minimum the procedure shall beconsistent with the provisions of section 358.7(d) with respect to applicable criminal court anddistrict attorney notification of specific failed tasks and failed tests reports.

Section 358.5 Approval Process and Responsibilities of Qualified Manufacturers.
(a)

(1)

Only a qualified manufacturer may conduct business in New York State
with respect to any operator. An interested manufacturer of a certified ignition interlock device
seeking to conduct business within New York State shall apply to the division to become aqualified manufacturer in one or more designated regions of New York State.

(2)

The four regions of the state by counties for purposes of this Part are as follows:

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(i)

Region 1: Allegany, Cattaraugus, Cayuga, Chautauqua, Chemung, Erie, Genesee,
Livingston, Monroe, Niagara, Ontario, Orleans, Schuyler, Seneca, Steuben, Wayne,
Wyoming, and Yates;(ii)

Region 2: Broome, Chenango, Clinton, Cortland, Essex, Franklin, Fulton, Hamilton,
Herkimer, Jefferson, Lewis, Madison, Oneida, Onondaga, Oswego, St. Lawrence, Tioga,
and Tompkins;(iii)

Region 3: Albany, Columbia, Delaware, Dutchess, Greene, Montgomery, Orange,
Otsego, Putnam, Rensselaer, Rockland, Saratoga, Schenectady, Schoharie, Sullivan,
Ulster, Warren, and Washington; and(iv)

Region 4: Bronx, Kings, Nassau, New York, Queens, Richmond, Suffolk, andWestchester.

(b)

(1)

The format and content of any application shall be established by thedivision. The application deadline for any contractual period of any manufacturer seeking
approval of the division as a qualified manufacturer to conduct business in New York State shallbe set by the division. Nothing shall preclude the division from establishing an open application
process for any interested manufacturers seeking to conduct business on or after such deadline
and filing an application to the division for approval. However, where approved, the contractualend date shall be consistent with other qualified manufacturer agreements. The application shallrequire at a minimum that the manufacturer submit relevant information, reports, and otherdocuments requested by the division with respect to competitive pricing, service performance,
select one or more regions in which it shall agree to conduct business, and certify that it willcomply with all applicable provisions specified in this Part with respect to service delivery. In
addition, the manufacturer or its representative shall provide a signed statement that the
manufacturer or its representative will indemnify and hold harmless the State of New York, the9division, the department of health, every county where it does business, and their officers,
employees and agents from all claims, demands and actions as a result of property damage and/or
injury or death to persons which arise, directly or indirectly, out of any act or omission by the
manufacturer, its representative, or installation/service providers relating to the installation,
service, inspection, maintenance, repair, use and/or removal of the ignition interlock device.

(2)

Every manufacturer who applies shall provide a thorough description of each device intended foruse in New York State, provide proof of such certification by the department of health for eachdevice intended for use in New York State, and the fee structure associated with that specificdevice. Descriptive information about the device shall include but not be limited to: make andmodel of device, special features of the device such as camera, reporting capabilities, removablehead, global positioning system, and real-time reporting. Fee structure information shall include
any and all fees charged to the operator, including but not limited to installation fee, monthly fee,any special service fees, and de-installation fee. The proposed fee structure shall take into
consideration and be based upon an anticipated ten percent (10%) waiver of the fees by criminal
courts due to operator unaffordability. Annually, on or about February 15th of each year, thedivision shall review requests by qualified manufacturers for rate adjustments which shall include
information submitted by qualified manufacturers involving unaffordability waivers granted bycourts. At its discretion, the division shall approve rate adjustments where appropriate.

(3)

Every qualified manufacturer with a certified device who wants any operational modification to
the device must submit in advance necessary documentation to the department of health andobtain departmental approval before releasing the modified device. The manufacturer shall notify
the division in writing of their intent of any operational modification and also any subsequent
approval and provide a written summary of any requested or approved modification. Operational
modification means any change to the product design or function that would or could affect the10devices anti-circumvention, anti-tampering or analytical features as determined by the departmentof health.
(4)

The division shall classify all certified ignition interlock devices into categories based upon
features and provide such list to every county. This classification system and subsequent deviceclassification is subject to change by the division as new information becomes available. Upon
review of a manufacturer’s application, the division shall make a determination whether the
manufacturer satisfies all requirements to be designated a qualified manufacturer and provide
notification to the applicant and every county within the region that the qualified manufacturer
may conduct business. Every qualified manufacturer shall enter into a contractual agreement fora minimum period of three years with the division setting forth the requirements of the qualified
manufacturer and all of its installation/service providers consistent with this Part and theapplication submission approved by the division. However, where a qualified manufacturer enters
into a contractual agreement with the division after the regular term of division contracts withother qualified manufacturers, the expiration date shall be consistent with other contracts in this
area.

(c)

Every qualified manufacturer shall:(1)adhere to all regulatory provisions of the department of health with respect to certification,
testing, labeling, reporting and any additional requirements, and shall also specifically adhere to
its responsibilities contained in this Part;(2)agree that an ignition interlock device shall conform to the national highway traffic safetyadministration (NHTSA) and department of health specifications, be calibrated at a set point of.025 BAC percent, and also require the operator after passing the start-up test allowing the engine
to start, to submit to an initial rolling test within a randomly variable interval ranging from five tofifteen minutes. Subsequent rolling tests shall continue to be required at random intervals not to11exceed thirty (30) minutes for the duration of the travel. A start-up re-test shall be required within
five (5) to fifteen (15) minutes of a failed start-up test. A rolling re-test shall be required withinone (1) to three (3) minutes after a failed or missed rolling test. An ignition interlock device shallenter into a lockout mode upon the following events: one failed start-up retest, one missed startup re-test, one failed rolling re-test or one missed rolling re-test within a service period, or one
missed service visit;(3)

agree to any reduced breath sample volume as permitted by NHTSA from 1.5 liters to 1.2 liters,
or any subsequent NHTSA reduced volume sample standards, where an individual has submitted
sufficient documentation from a physician of a condition which prevents regular operation at
normal breath volume levels and such proof authorizing reduction in the breath sample volume
has been approved by the applicable criminal court and notification has been provided to thequalified manufacturer by the applicable monitor.

(4)agree to adhere to a maximum fee/charge schedule with respect to all operator’s costs associatedwith such devices, offer a payment plan for any operator determined to be financially unable to
pay the cost of the ignition interlock device where a payment plan is so ordered, and provide a
device free of fee/charge to the operator where the cost is waived by the sentencing court, or
pursuant to such other agreement as may be entered into for provision of the device. Any
contractual agreement between the operator and the qualified manufacturer or its
installation/service providers shall permit an early termination without penalty to the operator
when a certificate of completion has been issued, where the sentence has been revoked, andwhenever the operator has been transferred to a jurisdiction where the manufacturer does not dobusiness. Nothing shall prevent a qualified manufacturer from lowering the fee/charge scheduleduring the course of an operator’s contract and/or the contractual agreement with the division;

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(5)

agree to service every county within a region and ensure that there shall be an installation/service
provider located in New York State within 50 miles from the operator’s residence or location
where the vehicle is parked or garaged, whichever is closest and ensure repair or replacement of adefective ignition interlock device shall be made available within the same 50 mile radius by afixed or mobile installation/service provider, or through a qualified manufacturer sending a
replacement, within 48 hours of receipt of a complaint, or within 72 hours where an intervening
weekend or holiday. Mobile servicing may be permissible provided that the above facility
requirements are met and a specific mobile servicing unit with regular hours is indicated;(6)

guarantee that an installation/service provider or the manufacturer shall download the usage
history of every operator’s ignition interlock device within thirty (30) calendar days of initialinstallation(s) and during subsequent service visits every thirty (30) calendar days where thedevice does not automatically transmit data directly to the monitor; and within thirty (30)
calendar days of initial installation(s) and during subsequent service visits every sixty (60)calendar days where the device automatically transmits data directly to the monitor; or if theoperator fails to appear for a service visit(s) as soon thereafter as the device can be downloaded,and provide the monitor with such information and in such format as determined by the division.
Further guarantee that the installation/service provider, unless the manufacturer provides such
notification, shall take appropriate, reasonable and necessary steps to confirm any report of failedtasks, failed tests, circumvention, or tampering and thereafter notify the appropriate monitor
within three (3) business days of knowledge or receipt of data indicating:(i)installation of a device on an operator’s vehicle(s);(ii)

report of a failed start-up re-test;(iii)

report of a missed start-up re-test;(iv)

report of a failed rolling re-test;
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(v)

report of a missed rolling re-test;(vi)

report of the device entering lockout mode;(vii)

failure of an operator to appear at a scheduled service visit; or(viii)

report of an alleged circumvention or tampering with the ignition interlock devices as
prohibited by paragraphs (a), (c) or (d) of subdivision (9) of section 1198 of the Vehicle
and Traffic Law, or an attempt thereof;(7)

adhere to real time reporting and Emergency Notification Program requirements, where such is
required in any county plan. Where real time reporting is utilized, such reports provided to themonitor as required above must occur contemporaneously as the event occurs or as soon as
cellular reception permits. Where an emergency notification program is utilized, immediate reportnotification as required above must be transmitted to the appropriate monitor and any other law
enforcement specified by the county;(8)

provide, no more than monthly to the operator upon his or her request, the operator’s usage
history, including any report of failed tasks, failed tests, circumvention, or tampering. An
operator may only make one request during any month for such information. Such request shallbe in writing and provide either an email address or self- addressed stamped envelope;(9)

agree to safeguard personal information with respect to any operator and any reports and provide
access to such records only as authorized herein, by law, or by court order. All records
maintained by the manufacturer and any of its installation/service providers with respect toignition interlock devices in New York State shall be retained in accordance with section 358.9;(10)

ensure that the manufacturer and/or the installation/service provider, where applicable, complies
with reporting requirements established by the division in providing information and reports to14

the division, and on a case –by- case basis to localities as may be necessary with respect to an
operator’s use of the ignition interlock device;(11)

establish and distribute to the division, its installation/service providers, and any county where it
does business a current list of all installation/service providers in the county, including business
name, address and telephone number and maintain a toll-free 24 hour telephone number to becalled from anywhere in the continental United States for an up-to-date listing of
installation/service providers in the continental United States and for emergency assistance.
Distribute an up-to-date listing of New York State installation/service providers to the division;(12)

provide written certification to the division in a format prescribed by the division that all
installation/service providers:(i)have been trained in advance as to installation, maintenance, troubleshooting, set point
requirement of .025 BAC percent, and recalibration of such manufacturer’s devices;(ii)

have instructions as to installation and usage of such manufacturer’s devices;(iii)

have agreed to comply with their manufacturer’s service agreements;(iv)

have agreed to comply with the provisions of section 358.5(c) and (d);(v)

have agreed to provide hands-on training to the operator, any member of the same family
or household, or any owner of a motor vehicle in which an ignition interlock device isbeing installed, with a valid driver’s license who appears with the operator at installation
to receive training as to the operation of an installed device on the vehicle, and to provide
written or video instructional material to the operator;(vi)

have been informed of New York State law governing circumvention of ignition interlock
devices and penalties associated therewith;15

(vii)

have agreed to safeguard personal information with respect to any operator and any
reports and provide access to such records only as authorized herein, by law, or court
order; and(viii)

have been made aware that non-compliance will result in immediate removal andupdating the listing of installation/service providers identified in section 358.5(c) (11).
An installation/service provider may be reinstated by the division, at its discretion, uponsatisfactory proof from the qualified manufacturer of corrective action;(13)

conduct annual quality assurance audits or reviews of installation/service providers to ensurecompliance with applicable laws, regulations and any contractual agreements and provide thedivision with yearly sworn statements that such audits have been conducted, as well as a copy ofthe findings of such annual quality assurance audits. Failure to conduct quality assurance audits
may result in removal of the qualified manufacturer from doing business in the State of New
York. Nothing shall preclude the division and/or its representative from conducting random
audits and quality assurance audits or reviews;(14)

take all reasonable steps necessary to prevent tampering or circumvention of the ignition interlock
device and promptly notify the division, the applicable county’s monitor and district attorney of
any reasonable belief that an employee of an installation/service provider has attempted to alter or
has altered ignition interlock data or has been otherwise involved in tampering or circumventing
an ignition interlock device of any operator or any attempt thereof. Failure to notify the monitor
and the district attorney may result in removal of the qualified manufacturer from doing businessin the State of New York;(15)

provide immediate written notice to the division and the applicable county monitor(s) of any
removal of any installation/service provider and the reasons for such;

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(16)

provide immediate written notice to the division and the department of health whenever the
manufacturer’s device, services, and/or operations has been compromised or does not function as
intended in New York State or any other state or jurisdiction in which the manufacturer does
business, or disapproved, suspended in whole or in part, revoked, or otherwise cancelled byanother state or jurisdiction, or has received notice or communication from another state or
jurisdiction that any such actions are imminent;(17)

submit such reports, as requested and in such format and timeframes as determined by thedivision, for each model or type of certified device, including, but not limited to:(i)operator and other vehicular user operation error;(ii)

faulty automotive equipment that directly impact successful implementation and use of
the device;(iii)

apparent misuse or attempts to circumvent or tamper/bypass a device;(iv)

device malfunctions, including proposed and follow-up action taken by the manufacturer
to correct such malfunctions;(v)

deficiencies in device calibration stability;(vi)

deficiencies in device reporting or information transmission as a result of any reason,
including but not limited to service outages or downtimes of any nature;(vii)

any proposed operational modification or other proposed operational and/or
administrative change, including but not limited to server, firmware, and other technicalchange or business structural change which may have the potential of affecting service
delivery or reporting; and(viii)

operator, vehicular user, and installation/service provider complaints;
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(18)

provide documentation and verification of insurance (to be submitted upon each policy issuanceor renewal) covering product liability, including coverage in New York State, with a minimum
policy limit of $1 million per occurrence, and $3 million aggregate total. The manufacturer shallprovide a signed statement holding harmless the State of New York, the division, every county,
and their employees and agents from all claims, demands, and actions, as a result of damage or
injury to persons or property that may arise, directly or indirectly, out of any act or omission by
the manufacturer or their installation/service provider relating to the installation, service, repair,use and/or removal of an ignition interlock device;(19)

provide documentation and verification of and maintain a Standby Letter of Credit (SLOC) as
specified in the manufacturer’s contract with New York State;(20)

submit any other information determined by the division to be relevant to the effectiveness,reliability and value of ignition interlock devices as a sentencing sanction and/or monitoring tool;(21)

agree that the consequences of a failure to adhere to any manufacturer requirements specified inthis Part and/or in contractual provisions with the State of New York may result in suspension or
removal of the qualified manufacturer from doing business in the State of New York, or, in theevent of suspension, such terms and conditions required by the division in any manufacturer’s
reconciliation plan; and(22)

agree to only provide an unlock code to an operator within two (2) hours of a scheduled service
visit. The unlock code shall be a unique one time code and only functional for two (2) hours
immediately preceding the service visit scheduled as a result of a vehicle being rendered
inoperable due to a lockout mode.

(d)Every qualified manufacturer shall ensure that its installation/service providers comply with the following
additional requirements:

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(1)

the ignition interlock device shall be installed in vehicle(s) owned or operated by the operator
within seven (7) business days of the operator’s request for installation of the device;(2)

provide to all operators, at the time of device installation a hardcopy statement of fees/charges
clearly specifying warranty details, schedule of lease payments where applicable, any additionalcosts anticipated for routine recalibration, service visits, and listing any items available withoutcharge if any, along with a list of installation/service providers in their respective county, a tollfree 24 hour telephone number to be called from anywhere in the continental United States tosecure up-to-date information as to all installation/service providers located anywhere in thecontinental United States and for emergency assistance, and a technical support number available
during specified business hours to reach a trained staff person to answer questions and to respondto mechanical concerns associated with the ignition interlock device;(3)

record the odometer reading of the motor vehicle in which the ignition interlock device isinstalled and during all service visits;(4)

remove an ignition interlock device and return the vehicle to normal operating condition only
after having received a certificate of completion or a letter of de-installation from the monitor as
authorized pursuant to section 358.7 of this Part. Where at the time of removal the
installation/service provider or qualified manufacturer notices any failed tests that have not beenbacked up by a successful re-test, the monitor shall be notified for approval before the removal ismade. If a device is removed for repair and cannot be reinstalled immediately, a substitute device
shall be provided;(5)

installation shall be performed in a professional manner by persons trained and authorized by the
manufacturer pursuant to section 358.5(c) (12);

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(6)

installation shall be performed according to the manufacturer's detailed written instructions, withcalibration to the required set point of .025 BAC percent and in a manner so as to ensure proper
vehicular operation;(7)

at the time of installation permanently affix the warning label notice prescribed by the departmentof health in a highly visible location on the installed ignition interlock device;(8)

be equipped with the necessary tools and equipment to ensure proper ignition interlock device
installation and removal;(9)

perform installations and maintenance, including recalibrations, within a secure area of theinstallation/service provider’s or qualified manufacturer’s business establishment or at a location
serviced by a mobile unit to prevent unauthorized persons from observing or accessing secured
items such as tamper seals and installation, data download, transmission, or recalibration
instructions;(10)

maintain records of installation and maintenance work performed on the devices;(11)

screen vehicles for mechanical and electrical conditions that would interfere with the functioningof the device, such as low battery or alternator voltage, defective horn, untuned engine, andfrequent stalling;(12)

prior to installation, require that the operator complete mechanical repairs or adjustments where
necessary for the proper functioning of the device. In such event, the seven (7) business day
installation period in paragraph one shall commence when repairs or adjustments are completed;(13)

prior to installation of the ignition interlock device, obtain and record the following informationfrom every operator:(i)photo identification;

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(ii)

the name and policy number of his/her automobile insurance;(iii)

the vehicle identification number (VIN) of all motor vehicles owned or routinely driven
by the operator, and a statement disclosing the names of all other individuals who operate
the motor vehicle(s) owned or driven by the operator; and(iv)

a notarized affidavit from the registered owner of the vehicle granting permission to
install the device if the vehicle is not registered to the operator;(14)

if, during the installation, the operator fails to pass the initial breath test, the installation will behalted and the monitor promptly notified;(15)

after installation during any service visit, recalibrate as necessary or required in this Part andcheck the device and vehicle to ensure proper operation;(16)

notify the applicable monitor when an ignition interlock device has been installed on an
operator’s vehicle(s) within three (3) business days of installation;

(17)

(18)

complete the following with respect to service visits:(i)document photo identification from the operator during all required in-person services;(ii)

provide service/monitoring of the ignition interlock device as required herein;(iii)

recalibrate as necessary the ignition interlock device at each service visit;(iv)

check for signs of circumvention or tampering; andadhere to any other applicable state or federal requirement.

21Section 358.6 Cancellation, suspension, and revocation of qualified manufacturers, installation/service providers, andcertified ignition interlock devices.
(a)

Any of the following reasons may result in revocation of a certified ignition interlock device orsuspension or removal of a qualified manufacturer or installation/service provider:(1)

when there is a voluntary request by a manufacturer to cancel certification of a device;(2)

when notified by the department of health that a device no longer meets their regulatory
standards;(3)

when a device is discontinued by the manufacturer;(4)

when the manufacturer's liability insurance is terminated or cancelled;(5)

when the manufacturer or installation/service provider conceals or attempts to conceal its true
ownership;(6)

when materially false or inaccurate information is provided relating to a device's performancestandards;(7)

when there are defects in design, materials, or workmanship causing repeated failures of a device;(8)

when the manufacturer or installation/service provider knowingly permits nonqualified service
technicians to perform work;(9)

when a manufacturer or installation/service provider assists users with circumventing or
tampering with a device;(10)

when service or the submission of required reports is not provided in a timely manner as requiredby this Part;

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(11)

when the manufacturer or installation/service provider refuses to provide an ignition interlock
device free of charge to an operator who has received a judicial waiver;(12)

when there is a pattern of substandard customer service;(13)

when a manufacturer or installation/service provider interferes with or obstructs a review orinvestigation by the division or any designee;(14)

when there are any other violations of the provisions contained in this Part, including division anddepartment of health regulations, or any ignition interlock contractual agreement;(15)

upon verbal and/or written notification or communication of disapproval, suspension in whole orin part, revocation, or cancellation of a manufacturer’s device, services and/or operations byanother state or jurisdiction;(16)

when a manufacturer or installation/service provider provides gratuities or any other personal
incentives to a state or local official or any monitor for purposes of soliciting business; and(17)

when a manufacturer or installation/service provider conducts business in New York State outsideof the designated region or regions of operation approved by the division.

Section 358.7 Monitoring.
(a)

(1)

Any monitor shall receive notification pursuant to its county plan of all
operators which it has responsibility to monitor within five (5) business days of the applicablecriminal court’s order imposing the condition of an ignition interlock device and of an operator’s
release from imprisonment, in accordance with section 358.4(d)(6). Such monitor shall obtain
proof of installation by the operator and installation/service provider. The installation/service
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provider shall provide notification of installation of an ignition interlock device to the appropriatemonitor and probation department in accordance with section 358.5 (d) (16) and the operator inaccordance with subdivision (c) of this section;(2)

Where a monitor learns that the operator no longer owns or operates a motor vehicle in which an
ignition interlock device has been installed, the monitor may issue a letter of de-installation
directly to the installation/service provider which authorizes removal of the device;

(b)

(1)

Where the operator is under interim probation supervision or probation
and resides in another county in New York State at the time of sentencing or subsequently
desires to reside in another county, upon intrastate transfer of probation, the receiving probation
department selects the specific class and features of the ignition interlock device available from aqualified manufacturer in its region. Thereafter, the operator may select the model of the ignitioninterlock device meeting the specific class and features selected by the receiving probation
department from a qualified manufacturer in the operator’s region of residence. Where intrastatetransfer occurs after sentencing and the installation of a different device is required as a result of
the transfer, the device shall be installed within ten (10) business days of relocation. All intrastatetransfer of those under interim probation supervision or probation shall be in accordance withapplicable laws and Part 349, where relevant;(2)

Where an operator has received a sentence of conditional discharge and resides in another county
in New York State at the time of sentencing or thereafter, the sentencing county monitor shallcontact the monitor in the county of residence to determine the class of ignition interlock device
available from a qualified manufacturer in its region which will be required for any such operator.
The operator may select the model of the ignition interlock device from within the classdesignated by the monitor from a qualified manufacturer in the operator’s region of residence.

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The sentencing county monitor shall perform monitor services and the sentencing court retains
jurisdiction of the operator. The sentencing county monitor shall notify the sentencing court andcounty district attorney pursuant to paragraph (d) of this section. Where devices with Emergency
Notification Program (ENP) capabilities are required by the county of residence, the sentencing
county monitor shall notify the IID Manufacturer so that the designated law enforcement agency
within the county of residence shall receive all applicable ENP communications/notifications;(3)

Where an operator has been court ordered to install an ignition interlock device in advance ofsentencing with monitoring and resides in another county at the time of such order or thereafter,
the county monitor in such jurisdiction shall contact the monitor in the county of residence todetermine the specific class and features of the ignition interlock device available from a qualified
manufacturer in its region which will be required for any such operator. The operator may selectthe model of the ignition interlock device from within the class designated by the monitor from aqualified manufacturer in the operator’s region of residence. The monitor in the county of thecourt ordering installation shall perform monitor services, and the court ordering installation
retains jurisdiction of the operator. The county monitor shall notify the court ordering installationand county district attorney pursuant to paragraph (d) of this section. Where devices with
Emergency Notification Program (ENP) capabilities are required by the county of residence, thesentencing county monitor shall notify the IID Manufacturer so that the designated law
enforcement agency within the county of residence shall receive all applicable ENP
communications/notifications;(4)

Where an operator resides or desires to reside out-of-state and is an offender subject to theinterstate compact for adult offender supervision pursuant to section two hundred fifty-nine-mmof the executive law, the governing rules of such compact shall control. Additionally, Part 349, asapplicable, shall apply with respect to transfer of supervision of probationers or those underinterim probation supervision. Where transfer is permitted, the receiving state retains its authority
25

to accept or deny the transfer in accordance with compact rules. Where an operator is subject tointerim probation supervision or probation and is granted reporting instructions and/or acceptanceby a receiving state, the sending probation department selects the specific class and features of theignition interlock device available from a qualified manufacturer in the receiving state.
Thereafter, the operator may select the model of the ignition interlock device meeting the specificclass and features selected by the sending probation department from a qualified manufacturer inthe receiving state region. The device shall be installed prior to relocation or return where
feasible. A qualified manufacturer shall make necessary arrangements to ensure the county
monitor in New York State and the receiving state receive timely reports from the manufacturer
and/or installation/service provider; and(5)where an operator resides or desires to reside out-of-state, is not subject to the interstate compact
for adult offender supervision and such compact’s governing rules, and has been given
permission to return or relocate by the criminal court or monitor, the same provisions with respect
to selection specified in paragraph four of this subdivision applies and the device shall be
installed prior to relocation or return. A qualified manufacturer shall make necessary
arrangements to ensure the county monitor receives timely reports from the manufacturer and/or
installation/service provider.

(c)Every operator shall:(1)

have installed and maintain a functioning ignition interlock device in any vehicle(s) he or sheowns or operates within ten (10) business days of the condition being imposed by the court andany sentence to imprisonment upon release from imprisonment, whichever is applicable and any
subsequent vehicle he or she may own or operate to have the device installed in accordance withthis Part and, within three (3) business days of installation, submit proof of installation to thecourt and applicable monitor. Nothing in this Part shall preclude an operator from having

26

installed a certified ignition interlock device in excess of the class and/or features authorizedherein;(2)(a) submit to service visits within thirty (30) calendar days of initial installation(s) andsubsequent service visits every thirty (30) calendar days where the device does not automaticallytransmit data directly to the monitor; and submit to service visits within thirty (30) calendar daysof initial installation(s) and subsequent service visits every sixty (60) calendar days where thedevice automatically transmits data directly to the monitor or the device head is required to besent to the qualified manufacturer every thirty (30) calendar days. However, an operator shallnever remove the device head or any of the component parts of an ignition interlock device.
(b) submit to a scheduled service visit within two (2) hours of an unlock code having been issued
by a qualified manufacturer.

(3)

provide the installation/service provider and the monitor prior to installation of the ignitioninterlock device, the following information:(i)his/her photo identification/license for examination purposes;(ii)

the name and policy number of his/her motor vehicle insurance;(iii)

the vehicle identification number (VIN) of all motor vehicles owned or routinely driven
by the operator, and a statement disclosing the names of all other individuals who operate
the motor vehicle(s) owned or driven by the operator; and(iv)

a notarized affidavit from the registered owner of the vehicle granting permission to
install the device if the vehicle is not registered to the operator;(4)

present photo identification/license for examination purposes during any in-person service visit;
and

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(5)

provide the monitor with documentation requested by the monitor as to vehicle(s) owned or
driven by the operator. Prior to an operator legally driving an employer’s vehicle within thescope of his or her employment, the operator must provide satisfactory proof to the monitor thatthe employer has been notified of the operator’s driving privilege is restricted and necessitates
installation and maintenance of a functioning ignition interlock device and such employer grants
permission for the operator to drive the employer’s vehicle without the device only for businesspurposes. Such exemption for business purposes shall not apply to any vehicle owned by abusiness entity all or partly owned or controlled by the operator. Any operator shall provide
satisfactory proof to the monitor that any other person who rents, leases, or loans a motor vehicle
to him or her has been notified that the operator’s driving privilege is restricted and necessitates
installation of the ignition interlock device on any vehicle he or she owns or operates and that theperson grants permission for the operator to install the device on such vehicle(s) and operate thevehicle(s). Further, prior to return of any vehicle which is leased, rented, or loaned, the operator
shall comply with service visit requirements of this Part;

(d)

(1)

Upon learning of the following events:(i)that the operator has failed to have installed the ignition interlock device on his/her own
vehicle(s) or vehicle(s) which he/she operates;(ii)

that the operator has not complied with service visits requirements and has not had
his/her vehicle promptly serviced within the three business days immediately following
the missed service appointment;(iii)

a report of alleged tampering with or circumventing an ignition interlock device or an
attempt thereof;

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(iv)

a report of a failed start-up re-test;(v)

a report of a missed start-up re-test;(vi)

a report of a failed rolling re-test;(vii)

a report of a missed rolling re-test; and/or(viii)

a report of a lockout mode;

the applicable monitor shall take appropriate action consistent with public safety. Where underprobation, the probation department shall adhere to Part 352. With respect to any operator
sentenced to conditional discharge, interim probation supervision or operators who are otherwise
court ordered to install an ignition interlock device in advance of sentencing, the monitor shalltake action in accordance with the provisions of its county ignition interlock program plan.

(2)

At a minimum, any monitor shall notify the appropriate court and district attorney, within five (5)business days of the following events:(i)where an operator has failed to have installed the ignition interlock device on his/her own
vehicle(s) or vehicle(s) which he/she operates;(ii)

any report of alleged tampering with or circumventing an ignition interlock device or an
attempt thereof;(iii)

any report of a failed start-up re-test;(iv)

any report of a missed start-up re-test;(v)

any report of a failed rolling re-test;

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(vi)

any report of a missed rolling re-test; and/or(vii)

where the operator has not complied with a service visit requirement, and has not had
his/her vehicle promptly serviced within the three business days immediately following
the missed service appointment, the monitor shall notify the appropriate court and district
attorney no later than the close of business on the fifth business day.

(3)

The monitor may recommend modification of the operator’s ignition interlock condition asotherwise authorized by law, including extension of his/her ignition interlock period, arequirement that the operator attend alcohol and substance abuse treatment and/or drinking driverprogram, referral to the department of motor vehicles to determine whether the department may
suspend or revoke the operator’s license, or recommend revocation of his/her sentence or release,
as applicable.

(4)

Where the operator is under supervision by the department of corrections and community
supervision, the monitor shall coordinate monitoring with the department of corrections andcommunity supervision and promptly provide such agency with reports of any failed tasks or
failed tests.

(e)Any monitor may disseminate relevant case records, including failed tasks or failed reports not otherwise
sealed or specifically restricted in terms of access by state or federal law to appropriate law enforcement
authorities, district attorney, treatment agencies, licensed or certified treatment providers, the judiciary,
for law enforcement and/or case management purposes relating to criminal investigations and/or
execution of warrants, supervision and/or monitoring of ignition interlock conditions, and treatment
and/or counseling. Personal information in any financial disclosure report shall only be accessible to themonitor, court, and district attorney for purposes related to determination of financial affordability. Case
record information is not to be used for noncriminal justice purposes and shall otherwise only be available
pursuant to a court order. In all such instances, those to whom access has been granted shall not30

secondarily disclose such information without the express written permission of the monitor that
authorized access.

Section 358.8 Costs and maintenance.
(a)

Any operator shall pay the cost of installing and maintaining the ignition interlock device unless theoperator has been determined to be financially unable to afford the cost of the ignition interlock device by
the applicable criminal court whereupon such cost may be imposed pursuant to a payment plan or waived.

(b)

Any operator who claims financial inability to pay for the device shall submit in advance of any presentence release or sentencing three (3) copies of his or her financial disclosure report, on a form
prescribed by the division, to the criminal court which shall distribute copies to the district attorney anddefense counsel. The report shall enumerate factors which may be considered by the court with respect tofinancial inability of the operator to pay for the device and shall include, but not be limited to income
from all sources, assets, and expenses. This report shall be made available to assist the court indetermining whether or not the operator is financially able to afford the cost of the ignition interlock
device, and if not whether to impose a payment plan. Where it is determined that a payment plan is not
feasible, the court shall determine whether the fee/charge for the device shall be waived.

Section 358.9 Record Retention and Disposition.
Record retention and disposition of all records of the county, any qualified manufacturer, and installation/service provider
with respect to this Part shall be in accordance with the applicable Records Retention and Disposition Schedule
promulgated by the state education department.

31Section 358.10 Liability and Incorporation by Reference
Liability
Nothing contained in the Part shall impose liability upon the division, 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.
Incorporation by Reference.
NHTSA’s Model Specifications for Breath Alcohol Ignition Interlock Devices (BAIIDs), which have been incorporated
by reference in this Part have been filed with the Office of the Secretary of State of the State of New York, the publication
so filed being 78 FR 26849, published by the National Archives and Records Administration, pages 26849-26867, posted
May 8, 2013 and effective May 8, 2014. Technical corrections to these NHTSA Model Specifications, which also havebeen incorporated by reference in this Part, have been filed with the Office of the Secretary of State of the State of New
York, the publication so filed being 80 FR 16720, published by the National Archives and Records Administration, pages
16720-16723, posted and effective March 30, 2015. These Model Specifications (including the 2015 technicalcorrections) may be examined at the Office of the Department of State, One Commerce Plaza, 99 Washington Avenue,
Albany, NY 12231-0001, and the Division of Criminal Justice Services, Office of Probation and Correctional
Alternatives, Alfred E. Smith Office Building, 80 South Swan Street, Albany, NY 12210.

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