### §164. Minimum penalties for repeat offenders for driving while intoxicated or driving under the influence

(a) Definitions.—In this section, the following definitions apply:

(1) 24-7 sobriety program.—The term "24-7 sobriety program" has the meaning given the term in section 405(d)(7)(A).

(2) Alcohol concentration.—The term "alcohol concentration" means grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

(3) Driving while intoxicated; driving under the influence.—The terms "driving while intoxicated" and "driving under the influence" mean driving or being in actual physical control of a motor vehicle while having an alcohol concentration above the permitted limit as established by each State.

(4) Motor vehicle.—The term "motor vehicle" means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public highways, but does not include a vehicle operated solely on a rail line or a commercial vehicle.

(5) Repeat intoxicated driver law.—The term "repeat intoxicated driver law" means a State law or combination of laws or programs that provides, as a minimum penalty, that an individual convicted of a second or subsequent offense for driving while intoxicated or driving under the influence after a previous conviction for that offense shall—

(A) receive, for a period of not less than 1 year—

(i) a suspension of all driving privileges;

(ii) a restriction on driving privileges that limits the individual to operating only motor vehicles with an ignition interlock device installed, unless a special exception applies;

(iii) a restriction on driving privileges that limits the individual to operating motor vehicles only if participating in, and complying with, a 24-7 sobriety program; or

(iv) any combination of clauses (i) through (iii);

(B) receive an assessment of the individual's degree of abuse of alcohol and treatment as appropriate; and

(C) receive—

(i) in the case of the second offense—

(I) an assignment of not less than 30 days of community service; or

(II) not less than 5 days of imprisonment (unless the State certifies that the general practice is that such an individual will be incarcerated); and

(ii) in the case of the third or subsequent offense—

(I) an assignment of not less than 60 days of community service; or

(II) not less than 10 days of imprisonment (unless the State certifies that the general practice is that such an individual will receive 10 days of incarceration).

(6) Special exception.—The term "special exception" means an exception under a State alcohol-ignition interlock law for the following circumstances:

(A) The individual is required to operate an employer's motor vehicle in the course and scope of employment and the business entity that owns the vehicle is not owned or controlled by the individual.

(B) The individual is certified by a medical doctor as being unable to provide a deep lung breath sample for analysis by an ignition interlock device.

(b) Transfer of Funds.—

(1) Fiscal years 2001 and 2002.—On October 1, 2000, and October 1, 2001, if a State has not enacted or is not enforcing a repeat intoxicated driver law, the Secretary shall transfer an amount equal to 11⁄2 percent of the funds apportioned to the State on that date under each of paragraphs (1), (3), and (4) of section 104(b) 1 to the apportionment of the State under section 402—

(A) to be used for alcohol- or multiple substance-impaired driving countermeasures; or

(B) to be directed to State and local law enforcement agencies for enforcement of laws prohibiting driving while intoxicated, driving while multiple substance-impaired, or driving under the influence and other related laws (including regulations), including the purchase of equipment, the training of officers, and the use of additional personnel for specific alcohol- or multiple substance-impaired driving countermeasures, dedicated to enforcement of the laws (including regulations).

(2) Fiscal year 2022 and thereafter.—

(A) Reservation of funds.—

(i) In general.—On October 1, 2021, and each October 1 thereafter, in the case of a State described in clause (ii), the Secretary shall reserve an amount equal to 2.5 percent of the funds to be apportioned to the State on that date under each of paragraphs (1) and (2) of section 104(b) until the State certifies to the Secretary the means by which the State will use those reserved funds in accordance with subparagraphs (A) and (B) of paragraph (1), and paragraph (3).

(ii) States described.—A State referred to in clause (i) is a State—

(I) that has not enacted or is not enforcing a repeat intoxicated driver law; and

(II) for which the Secretary determined for the prior fiscal year that the State had not enacted or was not enforcing a repeat intoxicated driver law.

(B) Transfer of funds.—As soon as practicable after the date of receipt of a certification from a State under subparagraph (A)(i), the Secretary shall—

(i) transfer the reserved funds identified by the State for use as described in subparagraphs (A) and (B) of paragraph (1) to the apportionment of the State under section 402; and

(ii) release the reserved funds identified by the State as described in paragraph (3).

(3) Use for highway safety improvement program.—

(A) In general.—A State may elect to use all or a portion of the funds reserved under paragraph (2) for activities eligible under section 148.

(B) State departments of transportation.—If the State makes an election under subparagraph (A), the funds shall be transferred to the department of transportation of the State, which shall be responsible for the administration of the funds.

(4) Federal share.—The Federal share of the cost of a project carried out with funds transferred under paragraph (1) or (2), or used under paragraph (3), shall be 100 percent.

(5) Derivation of amount to be transferred.—The amount to be transferred or released under paragraph (2) may be derived from the following:

(A) The apportionment of the State under section 104(b)(1).

(B) The apportionment of the State under section 104(b)(2).

(6) Transfer of obligation authority.—

(A) In general.—If the Secretary transfers under this subsection any funds to the apportionment of a State under section 402 for a fiscal year, the Secretary shall transfer an amount, determined under subparagraph (B), of obligation authority distributed for the fiscal year to the State for Federal-aid highways and highway safety construction programs for carrying out projects under section 402.

(B) Amount.—The amount of obligation authority referred to in subparagraph (A) shall be determined by multiplying—

(i) the amount of funds transferred under subparagraph (A) to the apportionment of the State under section 402 for the fiscal year, by

(ii) the ratio that—

(I) the amount of obligation authority distributed for the fiscal year to the State for Federal-aid highways and highway safety construction programs, bears to

(II) the total of the sums apportioned to the State for Federal-aid highways and highway safety construction programs (excluding sums not subject to any obligation limitation) for the fiscal year.

(7) Limitation on applicability of obligation limitation.—Notwithstanding any other provision of law, no limitation on the total of obligations for highway safety programs under section 402 shall apply to funds transferred under this subsection to the apportionment of a State under such section.

(Added Pub. L. 105–178, title I, §1406(a), as added Pub. L. 105–206, title IX, §9005(a), July 22, 1998, 112 Stat. 845; amended Pub. L. 109–59, title I, §1401(a)(3)(C), Aug. 10, 2005, 119 Stat. 1225; Pub. L. 110–244, title I, §115, June 6, 2008, 122 Stat. 1606; Pub. L. 112–141, div. A, title I, §1403, July 6, 2012, 126 Stat. 556; Pub. L. 114–94, div. A, title I, §§1414, 1446(a)(10), Dec. 4, 2015, 129 Stat. 1420, 1437; Pub. L. 117–58, div. A, title I, §11131(b), div. B, title IV, §24107, Nov. 15, 2021, 135 Stat. 510, 807.)

#### **Editorial Notes**

#### References in Text

Section 104, referred to in subsec. (b)(1), was amended generally by Pub. L. 112–141, div. A, title I, §1105(a), July 6, 2012, 126 Stat. 427. Other references to section 104 in this section were added concurrent with or subsequent to the general amendment of that section.

#### Amendments

2021—Subsec. (b)(1)(A). Pub. L. 117–58, §24107(1), substituted "alcohol- or multiple substance-impaired" for "alcohol-impaired".

Subsec. (b)(1)(B). Pub. L. 117–58, §24107(2), substituted "intoxicated, driving while multiple substance-impaired, or driving" for "intoxicated or driving" and "alcohol- or multiple substance-impaired" for "alcohol-impaired".

Subsec. (b)(2). Pub. L. 117–58, §11131(b)(1), substituted "2022" for "2012" in heading.

Subsec. (b)(2)(A). Pub. L. 117–58, §11131(b)(2), added subpar. (A) and struck out former subpar. (A). Prior to amendment, text read as follows: "On October 1, 2011, and each October 1 thereafter, if a State has not enacted or is not enforcing a repeat intoxicated driver law, the Secretary shall reserve an amount equal to 2.5 percent of the funds to be apportioned to the State on that date under each of paragraphs (1) and (2) of section 104(b) until the State certifies to the Secretary the means by which the States will use those reserved funds among the uses authorized under subparagraphs (A) and (B) of paragraph (1), and paragraph (3)."

Subsec. (b)(2)(B). Pub. L. 117–58, §11131(b)(3), substituted "subparagraph (A)(i)" for "subparagraph (A)" in introductory provisions.

2015—Subsec. (a)(1) to (4). Pub. L. 114–94, §1414(1), (2), added par. (1) and redesignated former pars. (1) to (3) as (2) to (4), respectively. Former par. (4) redesignated (5).

Subsec. (a)(5). Pub. L. 114–94, §1414(1), (3)(A), redesignated par. (4) as (5) and inserted "or combination of laws or programs" after "State law" in introductory provisions.

Subsec. (a)(5)(A). Pub. L. 114–94, §1414(3)(B), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: "receive—

"(i) a suspension of all driving privileges for not less than 1 year; or

"(ii) a suspension of unlimited driving privileges for 1 year, allowing for the reinstatement of limited driving privileges subject to restrictions and limited exemptions as established by State law, if an ignition interlock device is installed for not less than 1 year on each of the motor vehicles owned or operated, or both, by the individual;".

Subsec. (a)(5)(B). Pub. L. 114–94, §1414(3)(C), (D), redesignated subpar. (C) as (B) and struck out former subpar. (B), which read as follows: "be subject to the impoundment or immobilization of, or the installation of an ignition interlock system on, each motor vehicle owned or operated, or both, by the individual;".

Subsec. (a)(5)(C). Pub. L. 114–94, §1414(3)(D), redesignated subpar. (D) as (C). Former subpar. (C) redesignated (B).

Subsec. (a)(5)(C)(i)(II). Pub. L. 114–94, §1414(3)(E)(i), inserted before semicolon "(unless the State certifies that the general practice is that such an individual will be incarcerated)".

Subsec. (a)(5)(C)(ii)(II). Pub. L. 114–94, §1414(3)(E)(ii), inserted before period at end "(unless the State certifies that the general practice is that such an individual will receive 10 days of incarceration)".

Subsec. (a)(6). Pub. L. 114–94, §1414(4), added par. (6).

Subsec. (b)(3)(A). Pub. L. 114–94, §1446(a)(10)(A), substituted "reserved" for "transferred".

Subsec. (b)(5). Pub. L. 114–94, §1446(a)(10)(B), inserted "or released" after "transferred" in introductory provisions.

2012—Subsec. (a)(3). Pub. L. 112–141, §1403(a)(1), (2), redesignated par. (4) as (3) and struck out former par. (3) which defined "license suspension".

Subsec. (a)(4). Pub. L. 112–141, §1403(a)(2), (3), redesignated par. (5) as (4), added subpar. (A), and struck out former subpar. (A) which read as follows: "receive—

"(i) a driver's license suspension for not less than 1 year; or

"(ii) a combination of suspension of all driving privileges for the first 45 days of the suspension period followed by a reinstatement of limited driving privileges for the purpose of getting to and from work, school, or an alcohol treatment program if an ignition interlock device is installed on each of the motor vehicles owned or operated, or both, by the individual;".

Former par. (4) redesignated (3).

Subsec. (a)(5). Pub. L. 112–141, §1403(a)(2), redesignated par. (5) as (4).

Subsec. (b)(2). Pub. L. 112–141, §1403(b)(1), added par. (2) and struck out former par. (2). Prior to amendment, text read as follows: "On October 1, 2002, and each October 1 thereafter, if a State has not enacted or is not enforcing a repeat intoxicated driver law, the Secretary shall transfer an amount equal to 3 percent of the funds apportioned to the State on that date under each of paragraphs (1), (3), and (4) of section 104(b) to the apportionment of the State under section 402 to be used or directed as described in subparagraph (A) or (B) of paragraph (1)."

Subsec. (b)(3). Pub. L. 112–141, §1403(b)(2), added par. (3) and struck out former par. (3). Prior to amendment, text read as follows: "A State may elect to use all or a portion of the funds transferred under paragraph (1) or (2) for activities eligible under section 148."

Subsec. (b)(5). Pub. L. 112–141, §1403(b)(3), added par. (5) and struck out former par. (5). Prior to amendment, text read as follows: "The amount to be transferred under paragraph (1) or (2) may be derived from one or more of the following:

"(A) The apportionment of the State under section 104(b)(1).

"(B) The apportionment of the State under section 104(b)(3).

"(C) The apportionment of the State under section 104(b)(4)."

2008—Subsec. (a)(5)(A), (B). Pub. L. 110–244 added subpars. (A) and (B) and struck out former subpars. (A) and (B) which read as follows:

"(A) receive a driver's license suspension for not less than 1 year;

"(B) be subject to the impoundment or immobilization of each of the individual's motor vehicles or the installation of an ignition interlock system on each of the motor vehicles;".

2005—Subsec. (b)(3). Pub. L. 109–59 substituted "148" for "152".

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 2021 Amendment

Amendment by section 11131(b) of Pub. L. 117–58 effective Oct. 1, 2021, see section 10003 of Pub. L. 117–58, set out as a note under section 101 of this title.

#### Effective Date of 2015 Amendment

Pub. L. 114–94, div. A, title IV, §4015, Dec. 4, 2015, 129 Stat. 1513, provided that: "Notwithstanding any other provision of this Act [div. A of Pub. L. 114–94, see Tables for classification], except for the technical corrections in section 4014 [amending sections 402, 403, and 405 of this title], the amendments made by this Act to sections 164, 402, and 405 of title 23, United States Code, shall be effective on October 1, 2016."

#### Effective Date of 2012 Amendment

Amendment by Pub. L. 112–141 effective Oct. 1, 2012, see section 3(a) of Pub. L. 112–141, set out as an Effective and Termination Dates of 2012 Amendment note under section 101 of this title.

#### Effective Date

Section effective simultaneously with enactment of Pub. L. 105–178 and to be treated as included in Pub. L. 105–178 at time of enactment, see section 9016 of Pub. L. 105–206, set out as an Effective Date of 1998 Amendment note under section 101 of this title.

1 See References in Text note below.