N.Y. Comp. Codes R. & Regs. tit. 9 § 358.7

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

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 business days of the applicable criminal 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) of this Part. Such monitor shall obtain proof of installation by the operator and installation/service provider. The installation/service provider shall provide notification of installation of an ignition interlock device to the appropriate monitor and probation department in accordance with section 358.5(d)(16) of this Part and the operator in accordance 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 a qualified manufacturer in its region. Thereafter, the operator may select the model of the ignition interlock 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 intrastate transfer occurs after sentencing and the installation of a different device is required as a result of the transfer, the device shall be installed within 10 business days of relocation. All intrastate transfer of those under interim probation supervision or probation shall be in accordance with applicable laws and Part 349 of this Title, 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 shall contact 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 class designated by the monitor from a qualified manufacturer in the operator's region of residence. 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 and county district attorney pursuant to subdivision (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 of sentencing 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 to determine 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 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. The monitor in the county of the court ordering installation shall perform monitor services, and the court ordering installation retains jurisdiction of the operator. The county monitor shall notify the court ordering installation and county district attorney pursuant to subdivision (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

(4) Where an operator resides or desires to reside out-of-state and is an offender subject to the interstate compact for adult offender supervision pursuant to section 259-mm of the Executive Law, the governing rules of such compact shall control. Additionally, Part 349 of this Title, as applicable, shall apply with respect to transfer of supervision of probationers or those under interim probation supervision. Where transfer is permitted, the receiving state retains its authority to accept or deny the transfer in accordance with compact rules. Where an operator is subject to interim probation supervision or probation and is granted reporting instructions and/or acceptance by a receiving state, the sending probation department selects the specific class and features of the ignition 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 specific class and features selected by the sending probation department from a qualified manufacturer in the 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.

(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 (4) 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 she owns or operates within 10 business days of the condition being imposed by the court and any 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 with this Part and, within three business days of installation, submit proof of installation to the court and applicable monitor. Nothing in this Part shall preclude an operator from having installed a certified ignition interlock device in excess of the class and/or features authorized herein;

(2)

(i) submit to service visits within 30 calendar days of initial installations and subsequent service visits every 30 calendar days where the device does not automatically transmit data directly to the monitor; and submit to service visits within 30 calendar days of initial installations and subsequent service visits every 60 calendar days where the device automatically transmits data directly to the monitor or the device head is required to be sent to the qualified manufacturer every 30 calendar days. However, an operator shall never remove the device head or any of the component parts of an ignition interlock device;

(ii) submit to a scheduled service visit within two 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 ignition interlock 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

(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 the scope of his or her employment, the operator must provide satisfactory proof to the monitor that the 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 business purposes. Such exemption for business purposes shall not apply to any vehicle owned by a business 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 the person grants permission for the operator to install the device on such vehicle(s) and operate the vehicle(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;

(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 under probation, the probation department shall adhere to Part 352 of this Title. 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 shall take 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 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;

(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 as otherwise authorized by law, including extension of his/her ignition interlock period, a requirement that the operator attend alcohol and substance abuse treatment and/or drinking driver program, 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 and Community 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 the monitor, 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 not secondarily disclose such information without the express written permission of the monitor that authorized access.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 358.7

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