N.Y. Comp. Codes R. & Regs. tit. 9 § 358.3

Current through Register Vol. 46, No. 25, June 18, 2024

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 in a 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 in the 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 ignition interlock device, or to start a motor vehicle equipped with the device, for the purpose of providing the operator 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 or county 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.

(g) The term drinking driver program shall mean an alcohol and drug rehabilitation program established pursuant to section 1196 of the Vehicle and Traffic Law.

(h) The term emergency notification program shall mean a protocol that utilizes real time data reporting and provides timely notification to law enforcement agencies regarding at minimum failed or missed rolling re-tests.

(i) The term failed tasks shall mean failure to install the ignition interlock device or failure to comply with a 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 missed rolling re-test.

(k) The term failure report recipients shall mean all persons or entities required to receive a report from the monitor 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 the drinking 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 of Health in section 59.10 of Title 10 NYCRR.

(m) The term installation/service provider shall mean an entity located in New York State approved by a qualified manufacturer that installs, services, and/or removes an ignition interlock device.

(n) The term lockout mode shall mean circumstances enumerated in this Part which trigger the ignition interlock device to cause the operator's vehicle to become inoperable if not serviced within five 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 ignition interlock 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) of this Part, 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 the division 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 5 to 15 minutes of a failed start-up test.

(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 to three 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 or with 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.

(ab) The term tamper shall mean to alter, disconnect, physically disable, remove, deface, or destroy an ignition interlock device or any of its component seals in any way not authorized by this Part.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 358.3

Amended New York State Register October 18, 2017/Volume XXXIX, Issue 42, eff. 11/15/2017