Title 23—Highways--Volume 1
PART 192—DRUG OFFENDER'S DRIVER'S LICENSE SUSPENSION
§ 192.1   Scope.
This part prescribes the requirements necessary to implement 23 U.S.C. 159, which encourages States to enact and enforce drug offender's driver's license suspensions.
§ 192.2   Purpose.
The purpose of this part is to specify the steps that States must take to avoid the withholding of Federal-aid highway funds for noncompliance with 23 U.S.C. 159.
§ 192.3   Definitions.
As used in this part:
(a) Convicted includes adjudicated under juvenile proceedings.
(b) Driver's license means a license issued by a State to any individual that authorizes the individual to operate a motor vehicle on highways.
(c) Drug offense means:
(1) The possession, distribution, manufacture, cultivation, sale, transfer, or the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell, or transfer any substance the possession of which is prohibited under the Controlled Substances Act, or
(2) The operation of a motor vehicle under the influence of such a substance.
(d) Substance the possession of which is prohibited under the Controlled Substances Act or substance means a controlled or counterfeit substance, as those terms are defined in subsections 102 (6) and (7) of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 802 (6) and (7) and listed in 21 CFR 1308.11-.15.
§ 192.4   Adoption of drug offender's driver's license suspension.
(a) The Secretary shall withhold 8 percent of the amount required to be apportioned to any State under each of sections 104(b)(1) and (b)(2) of title 23 of the U.S.C. on the first day of the next fiscal year if the State does not meet the requirements of this section.
(b) A State meets the requirements of this section if:
(1) The State has enacted and is enforcing a law that requires in all circumstances, or requires in the absence of compelling circumstances warranting an exception:
(i) The revocation, or suspension for at least 6 months, of the driver's license of any individual who is convicted, after the enactment of such law, of
(A) Any violation of the Controlled Substances Act, or
(B) Any drug offense, and
(ii) A delay in the issuance or reinstatement of a driver's license to such an individual for at least 6 months after the individual otherwise would have been eligible to have a driver's license issued or reinstated if the individual does not have a driver's license, or the driver's license of the individual is suspended, at the time the individual is so convicted, or
(2) The Governor of the State or their designee:
(i) Submits to the Secretary through its respective FHWA Division Administrator a written certification stating that the Governor is opposed to the enactment or enforcement in the State of a law described in paragraph (b)(1) of this section relating to the revocation, suspension, issuance, or reinstatement of driver's licenses to convicted drug offenders; and
(ii) Submits to the Secretary a written certification that the legislature (including both Houses where applicable) has adopted a resolution expressing its opposition to a law described in paragraph (b)(1) of this section.
(c) A State that makes exceptions for compelling circumstances must do so in accordance with a State law, regulation, binding policy directive or statewide published guidelines establishing the conditions for making such exceptions and in exceptional circumstances specific to the offender.
§ 192.5   Certification requirements.
(a) Each State shall certify to the Secretary by January 1, 2023, that it meets the requirements of 23 U.S.C. 159 and this regulation. Subsequently, each State shall certify to the Secretary through its respective FHWA Division Administrator that it meets the requirements of 23 U.S.C. 159 and this regulation when there is a change to the State law, regulation, or binding policy relating to the suspension, revocation, issuance, or reinstatement or driver's licenses of drug offenders within 90 days of the effective date of a State legislative change that affects State compliance with this section.
(b) If the State believes it meets the requirements of 23 U.S.C. 159 and this regulation on the basis that it has enacted and is enforcing a law that suspends or revokes the driver's licenses of drug offenders, the certification shall contain a statement by the Governor of the State, or their designee, that the State has enacted and is enforcing a Drug Offender's Driver's License Suspension law that conforms to 23 U.S.C. 159(a)(3)(A). The certifying statement may be worded as follows: I, (Name of Governor or designee), (ADD TITLE on behalf of the) Governor of the (State or Commonwealth) of __, do hereby certify that the (State or Commonwealth) of __, has enacted and is enforcing a Drug Offender's Driver's License Suspension law that conforms to section 23 U.S.C. 159(a)(3)(A).
(c) If the State believes it meets the requirements of 23 U.S.C. 159(a)(3)(B) on the basis that it opposes a law that requires the suspension, revocation, or delay in issuance or reinstatement of the driver's licenses of drug offenders that conforms to 23 U.S.C. 159(a)(3)(A), the certification shall contain:
(1) A statement by the Governor of the State or their designee that the Governor is opposed to the enactment or enforcement of a law that conforms to 23 U.S.C. 159(a)(3)(A) and that the State legislature has adopted a resolution expressing its opposition to such a law. The certifying statement may be worded as follows: I, (Name of Governor or designee), (ADD TITLE on behalf of the) Governor of the (State or Commonwealth of __, do hereby certify that I am opposed to the enactment or enforcement of a law that conforms to 23 U.S.C. 159(a)(3)(A) and that the legislature of the (State or Commonwealth) of __, has adopted a resolution expressing its opposition to such a law.
(2) Until a State has been determined to be in compliance with the requirements of 23 U.S.C. 159(a)(3)(B) and this regulation, the certification shall include a copy of the resolution.
(d) The Governor or their designee shall submit an electronic copy of the certification to its respective FHWA Division Administrator. The FHWA Division Administrator shall retain an electronic copy and forward an electronic copy to both the FHWA Office of Safety and the FHWA Office of the Chief Counsel.
(e) Any changes to the certification or supplemental information necessitated by the review of the certifications as they are forwarded, State legislative changes that affects State compliance of this section, or changes in State enforcement activity shall be submitted within 90 days of the change being effective.
§ 192.6   Period of availability of withheld funds.
Funds withheld under § 192.4 from apportionment to any State will not be available for apportionment to the State and shall lapse immediately.
§ 192.7   Procedures affecting States in noncompliance.
(a) If FHWA determines that the State is not in compliance with 23 U.S.C. 159(a)(3), the State will be advised of the funds expected to be withheld under § 192.4 from apportionment, as part of the advance notice of apportionments required under 23 U.S.C. 104(e). This notification will normally occur not later than 90 days before the beginning of the fiscal year for which the sums to be apportioned are authorized. The State may, within 30 days of its receipt of the advance notice of apportionments, submit documentation demonstrating its compliance. Documentation shall be submitted electronically to the FHWA Division Administrator for that State. The FHWA Division Administrator shall retain an electronic copy and forward an electronic copy to both the FHWA Office of Safety and the FHWA Office of the Chief Counsel.
(b) Each fiscal year, each State determined not to be in compliance with 23 U.S.C. 159(a)(3), based on FHWA's final determination, will receive notice of the funds being withheld under § 192.4 from apportionment, as part of the certification of apportionments required under 23 U.S.C. 104(e), which normally occurs on October 1 of each fiscal year.