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### §410. Alcohol-impaired driving countermeasures

(a) General Authority.—Subject to the provisions of this section, the Secretary shall make grants to those States which adopt and implement effective programs to reduce traffic safety problems resulting from persons driving while under the influence of alcohol or a controlled substance. Such grants may only be used by recipient States to implement and enforce such programs.

(b) Maintenance of Effort.—No grant may be made to a State under this section in any fiscal year unless such State enters into such agreements with the Secretary as the Secretary may require to ensure that such State will maintain its aggregate expenditures from all other sources for alcohol traffic safety programs at or above the average level of such expenditures in its 2 fiscal years preceding the date of the enactment of the Intermodal Surface Transportation Efficiency Act of 1991.

(c) Maximum Period of Eligibility; Federal Share for Grants.—No State may receive grants under this section in more than 6 fiscal years beginning after September 30, 1992. The Federal share payable for any grant under this section shall not exceed—

(1) in the first fiscal year the State receives a grant under this section, 75 percent of the cost of implementing and enforcing in such fiscal year a program adopted by the State pursuant to subsection (a);

(2) in the second fiscal year the State receives a grant under this section, 50 percent of the cost of implementing and enforcing in such fiscal year such program; and

(3) in the third, fourth, fifth, and sixth fiscal years the State receives a grant under this section, 25 percent of the cost of implementing and enforcing in such fiscal year such program.

(d) Basic Grant Eligibility.—A State is eligible for a basic grant under this section in a fiscal year only if such State provides for 5 or more of the following:

(1) Establishes an expedited driver's license suspension or revocation system for persons who operate motor vehicles while under the influence of alcohol which requires that—

(A) when a law enforcement officer has probable cause under State law to believe a person has committed an alcohol-related traffic offense and such person is determined, on the basis of a chemical test, to have been under the influence of alcohol while operating the motor vehicle or refuses to submit to such a test as proposed by the officer, the officer shall serve such person with a written notice of suspension or revocation of the driver's license of such person and take possession of such driver's license;

(B) the notice of suspension or revocation referred to in subparagraph (A) shall provide information on the administrative procedures under which the State may suspend or revoke in accordance with the objectives of this section a driver's license of a person for operating a motor vehicle while under the influence of alcohol and shall specify any rights of the operator under such procedures;

(C) the State shall provide, in the administrative procedures referred to in subparagraph (B), for due process of law, including the right to an administrative review of a driver's license suspension or revocation;

(D) after serving notice and taking possession of a driver's license in accordance with subparagraph (A), the law enforcement officer immediately shall report to the State entity responsible for administering drivers’ licenses all information relevant to the action taken in accordance with this clause;

(E) in the case of a person who, in any 5-year period beginning after December 18, 1991, is determined on the basis of a chemical test to have been operating a motor vehicle under the influence of alcohol or is determined to have refused to submit to such a test as proposed by the law enforcement officer, the State entity responsible for administering drivers’ licenses, upon receipt of the report of the law enforcement officer—

(i) shall suspend the driver's license of such person for a period of not less than 90 days if such person is a first offender in such 5-year period; and

(ii) shall suspend the driver's license of such person for a period of not less than 1 year, or revoke such license, if such person is a repeat offender in such 5-year period; and

(F) the suspension and revocation referred to under subparagraph (D) shall take effect not later than 30 days after the day on which the person first received notice of the suspension or revocation in accordance with subparagraph (B).

(2)(A) For each of the first three fiscal years in which a grant is received, any person with a blood alcohol concentration of 0.10 percent or greater when driving a motor vehicle shall be deemed to be driving while intoxicated; and

(B) For each of the last 3 fiscal years in which a grant is received, any person with a blood alcohol concentration of 0.08 percent or greater when driving a motor vehicle shall be deemed to be driving while intoxicated.

(3)(A) A statewide program for stopping motor vehicles on a nondiscriminatory, lawful basis for the purpose of determining whether or not the operators of such motor vehicles are driving while under the influence of alcohol.

(B) A State shall be treated as having met the requirement of this paragraph if—

(i) the State provides to the Secretary a written certification that the highest court of the State has issued a decision indicating that implementation of subparagraph (A) would constitute a violation of the constitution of the State; and

(ii) the State demonstrates to the satisfaction of the Secretary that—

(I) the alcohol fatal crash involvement rate in the State has decreased in each of the 3 most recent calendar years for which statistics for determining such rate are available; and

(II) the alcohol fatal crash involvement rate in the State has been lower than the average such rate for all States in each of such calendar years.

(4) A self-sustaining drunk driving prevention program under which a significant portion of the fines or surcharges collected from individuals apprehended and fined for operating a motor vehicle while under the influence of alcohol are returned, or an equivalent amount of non-Federal funds are provided, to those communities which have comprehensive programs for the prevention of such operations of motor vehicles.

(5) An effective system for preventing operators of motor vehicles under age 21 from obtaining alcoholic beverages. Such system may include the issuance of drivers’ licenses to individuals under age 21 that are easily distinguishable in appearance from drivers’ licenses issued to individuals age 21 years of age or older.

(6) Establishment of a mandatory sentence, which shall not be subject to suspension or probation, of (A) imprisonment for not less than 48 consecutive hours, or (B) not less than 10 days of community service, of any person convicted of driving while intoxicated more than once in any 5-year period.

(7) Any individual under age 21 with a blood alcohol concentration of 0.02 percent or greater when driving a motor vehicle shall be deemed to be driving while intoxicated or driving under the influence of alcohol.

(e) Amount of Basic Grant.—Subject to subsection (c), the amount of a basic grant made under this section for any fiscal year to any State which is eligible for such a grant under subsection (d) shall equal 30 percent of the amount apportioned to such State for fiscal year 1992 under section 402 of this title.

(f) Supplemental Grants.—

(1) Open container laws.—Subject to subsection (c), a State shall be eligible to receive a supplemental grant in a fiscal year of 5 percent of the amount apportioned to the State in fiscal year 1992 under section 402 of this title if the State is eligible for a basic grant in the fiscal year and makes unlawful the possession of any open alcoholic beverage container, or the consumption of any alcoholic beverage, in the passenger area of any motor vehicle located on a public highway or the right-of-way of a public highway, except—

(A) as allowed in the passenger area, by persons (other than the driver), of any motor vehicle designed to transport more than 10 passengers (including the driver) while being used to provide charter transportation of passengers; or

(B) as otherwise specifically allowed by such State, with the approval of the Secretary, but in no event may the driver of such motor vehicle be allowed to possess or consume an alcoholic beverage in the passenger area.

(2) Suspension of registration and return of license plates.—Subject to subsection (c), a State shall be eligible to receive a supplemental grant in a fiscal year of 5 percent of the amount apportioned to the State in fiscal year 1992 under section 402 of this title if the State is eligible for a basic grant in the fiscal year and provides for the suspension of the registration of, and the return to such State of the license plates for an individual who—

(A) has been convicted on more than 1 occasion of an alcohol-related traffic offense within any 5-year period beginning after the date of the enactment of the Intermodal Surface Transportation Efficiency Act of 1991; or

(B) has been convicted of driving while his or her driver's license is suspended or revoked by reason of a conviction for such an offense.

A State may provide limited exceptions to such suspension of registration or return of license plates on an individual basis to avoid undue hardship to any individual (including any family member of the convicted individual and any co-owner of the motor vehicle) who is completely dependent on the motor vehicle for the necessities of life. Such exceptions may not result in unrestricted reinstatement of the registration of the motor vehicle, unrestricted return of the license plates of the motor vehicle, or unrestricted return of the motor vehicle.

(3) Mandatory blood alcohol concentration testing programs.—Subject to subsection (c), a State shall be eligible to receive a supplemental grant in a fiscal year of 5 percent of the amount apportioned to the State in fiscal year 1992 under section 402 of this title if the State is eligible for a basic grant in the fiscal year and provides for mandatory blood alcohol concentration testing whenever a law enforcement officer has probable cause under State law to believe that a driver of a motor vehicle involved in an accident resulting in the loss of human life or, as determined by the Secretary, serious bodily injury, has committed an alcohol-related traffic offense.

(4) Drugged driving prevention.—Subject to subsection (c), a State shall be eligible to receive a supplemental grant in a fiscal year of 5 percent of the amount apportioned to the State in fiscal year 1992 under section 402 of this title if the State is eligible for a basic grant in the fiscal year and—

(A) provides for laws concerning drugged driving under which—

(i) a person shall not drive or be in actual physical control of a motor vehicle while under the influence of alcohol, a controlled substance, a combination of controlled substances, or any combination of alcohol and controlled substances;

(ii) any person who operates a motor vehicle upon the highways of the State shall be deemed to have given consent to a test or tests of his or her blood, breath, or urine for the purpose of determining the blood alcohol concentration or the presence of controlled substances in his or her body; and

(iii) the driver's license of a person shall be suspended promptly, for a period of not less than 90 days in the case of a first offender and not less than 1 year in the case of any repeat offender, when a law enforcement officer has probable cause under State law to believe such person has committed a traffic offense relating to controlled substances use, and such person (I) is determined, on the basis of 1 or more chemical tests, to have been under the influence of controlled substances while operating a motor vehicle, or (II) refuses to submit to such a test as proposed by the officer;

(B) has in effect a law which provides that—

(i) any person convicted of a first violation of driving under the influence of controlled substances or alcohol, or both, shall receive—

(I) a mandatory license suspension for a period of not less than 90 days; and

(II) either an assignment of 100 hours of community service or a minimum sentence of imprisonment for 48 consecutive hours;

(ii) any person convicted of a second violation of driving under the influence of controlled substances or alcohol, or both, within 5 years after a conviction for the same offense shall receive a mandatory minimum sentence of imprisonment for 10 days and license revocation for not less than 1 year;

(iii) any person convicted of a third or subsequent violation of driving under the influence of controlled substances or alcohol, or both, within 5 years after a prior conviction for the same offense shall—

(I) receive a mandatory minimum sentence of imprisonment for 120 days; and

(II) have his or her license revoked for not less than 3 years; and

(iv) any person convicted of driving with a suspended or revoked license or in violation of a restriction imposed as a result of a conviction for driving under the influence of controlled substances or alcohol, or both, shall receive a mandatory sentence of imprisonment for at least 30 days, and shall upon release from imprisonment receive an additional period of license suspension or revocation of not less than the period of suspension or revocation remaining in effect at the time of commission of the offense of driving with a suspended or revoked license;

(C) provides for an effective system, as determined by the Secretary, for—

(i) the detection of driving under the influence of controlled substances;

(ii) the administration of a chemical test or tests to any driver who a law enforcement officer has probable cause under State law to believe has committed a traffic offense relating to controlled substances use; and

(iii) in instances where such probable cause exists, the prosecution of (I) those persons who are determined, on the basis of 1 or more chemical tests, to have been operating a motor vehicle while under the influence of controlled substances and (II) those persons who refuse to submit to such a test as proposed by a law enforcement officer; and

(D) has in effect 2 of the following programs:

(i) An effective educational program, as determined by the Secretary, for the prevention of driving under the influence of controlled substances.

(ii) An effective program, as determined by the Secretary, for training law enforcement officers to detect driving under the influence of controlled substances.

(iii) An effective program, as determined by the Secretary, for the rehabilitation and treatment of those convicted of driving under the influence of controlled substances.

(5) Blood alcohol concentration level percentage.—Subject to subsection (c), a State shall be eligible to receive a supplemental grant in a fiscal year of 5 percent of the amount apportioned to the State in fiscal year 1992 under section 402 of this title if the State is eligible for a basic grant in the fiscal year and requires that any person with a blood alcohol concentration of .08 percent or greater when driving a motor vehicle shall be deemed to be driving while intoxicated in each of the first three fiscal years in which a basic grant is received.

(6) Video equipment for detection of drunk and drugged drivers.—Subject to subsection (c), a State shall be eligible to receive a supplemental grant in a fiscal year of 5 percent of the amount apportioned to the State in fiscal year 1992 under section 402 of this title if the State is eligible for a basic grant in the fiscal year and provides a program to acquire video equipment to be used in detecting persons who operate motor vehicles while under the influence of alcohol or a controlled substance and in effectively prosecuting those persons, and to train personnel in the use of that equipment.

(g) Administrative Expenses.—Funds authorized to be appropriated to carry out this section shall be subject to a deduction not to exceed 5 percent for the necessary costs of administering the provisions of this section.

(h) Applicability of Chapter 1.—

(1) In general.—Except as otherwise provided in this subsection, all provisions of chapter 1 of this title that are applicable to National Highway System funds, other than provisions relating to the apportionment formula and provisions limiting the expenditure of such funds to the Federal-aid systems, shall apply to the funds authorized to be appropriated to carry out this section.

(2) Inconsistent provisions.—If the Secretary determines that a provision of chapter 1 of this title is inconsistent with this section, such provision shall not apply to funds authorized to be appropriated to carry out this section.

(3) Credit for state and local expenditures.—The aggregate of all expenditures made during any fiscal year by a State and its political subdivisions (exclusive of Federal funds) for carrying out the State highway safety program (other than planning and administration) shall be available for the purpose of crediting such State during such fiscal year for the non-Federal share of the cost of any project under this section (other than one for planning or administration) without regard to whether such expenditures were actually made in connection with such project.

(4) Increased federal share for certain indian tribe programs.—In the case of a local highway safety program carried out by an Indian tribe, if the Secretary is satisfied that an Indian tribe does not have sufficient funds available to meet the non-Federal share of the cost of such program, the Secretary may increase the Federal share of the cost thereof payable under this title to the extent necessary.

(5) Treatment of term “state highway department”.—In applying provisions of chapter 1 in carrying out this section, the term “State highway department” as used in such provisions shall mean the Governor of a State and, in the case of an Indian tribe program, the Secretary of the Interior.

(i) Definitions.—For the purposes of this section, the following definitions apply:

(1) Alcoholic beverage.—The term “alcoholic beverage” has the meaning such term has under section 158(c) of this title.

(2) Controlled substances.—The term “controlled substances” has the meaning such term has under section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)).

(3) Motor vehicle.—The term “motor vehicle” has the meaning such term has under section 154(b) 1 of this title.

(4) Open alcoholic beverage container.—The term “open alcoholic beverage container” means any bottle, can, or other receptacle—

(A) which contains any amount of an alcoholic beverage; and

(B)(i) which is open or has a broken seal, or

(ii) the contents of which are partially removed.

(j) Authorization of Appropriations.—For purposes of carrying out this section, there is authorized to be appropriated out of the Highway Trust Fund (other than the Mass Transit Account) $25,000,000 for each of fiscal years 1994 through 1997, an additional $500,000 for fiscal year 1997, and $12,500,000 for the period of October 1, 1997, through March 31, 1998. Amounts made available to carry out this section are authorized to remain available until expended.

(Added Pub. L. 100–690, title IX, §9002(a), Nov. 18, 1988, 102 Stat. 4521; amended Pub. L. 101–516, title III, §336, Nov. 5, 1990, 104 Stat. 2186; Pub. L. 102–240, title II, §2004(a), Dec. 18, 1991, 105 Stat. 2073; Pub. L. 102–388, title VI, §§601–606, Oct. 6, 1992, 106 Stat. 1569, 1570; Pub. L. 104–59, title III, §324, Nov. 28, 1995, 109 Stat. 591; Pub. L. 105–18, title II, §8003, June 12, 1997, 111 Stat. 195; Pub. L. 105–130, §6(b), Dec. 1, 1997, 111 Stat. 2558.)

#### References in Text

The date of the enactment of the Intermodal Surface Transportation Efficiency Act of 1991, referred to in subsecs. (b) and (f)(2)(A), is the date of enactment of Pub. L. 102–240, which was approved Dec. 18, 1991.

Section 154 of this title, referred to in subsec. (i)(3), was repealed by Pub. L. 104–59, title II, §205(d)(1)(B), Nov. 28, 1995, 109 Stat. 577.

#### Amendments

1997—Subsec. (c). Pub. L. 105–130, §6(b)(1)(A), substituted “6 fiscal years” for “5 fiscal years” in introductory provisions.

Subsec. (c)(3). Pub. L. 105–130, §6(b)(1)(B), substituted “fifth, and sixth fiscal years” for “and fifth fiscal years”.

Subsec. (d)(2)(B). Pub. L. 105–130, §6(b)(2), substituted “3 fiscal years” for “two fiscal years”.

Subsec. (j). Pub. L. 105–130, §6(b)(3), substituted “1997,” for “1997, and” and inserted before period at end “, and $12,500,000 for the period of October 1, 1997, through March 31, 1998”.

Pub. L. 105–18 inserted “, and an additional $500,000 for fiscal year 1997” after “1997”.

1995—Subsec. (d)(1)(E). Pub. L. 104–59, §324(a), substituted “December 18, 1991” for “the date of enactment of this section” in introductory provisions.

Subsec. (d)(3). Pub. L. 104–59, §324(b)(1), designated existing provisions as subpar. (A) and added subpar. (B).

Subsec. (d)(7). Pub. L. 104–59, §324(b)(2), added par. (7).

Subsec. (f). Pub. L. 104–59, §324(c), redesignated pars. (2) to (7) as (1) to (6), respectively, and struck out former par. (1) which read as follows:

“(1) Blood alcohol concentration for persons under age 21.—Subject to subsection (c), a State shall be eligible to receive a supplemental grant in a fiscal year of 5 percent of the amount apportioned to the State in fiscal year 1992 under section 402 of this title if the State is eligible for a basic grant in the fiscal year and provides that any person under age 21 with a blood alcohol concentration of 0.02 percent or greater when driving a motor vehicle shall be deemed to be driving while intoxicated.”

1992—Subsec. (c). Pub. L. 102–388, §601(2), (3), added subsec. (c) and redesignated former subsec. (c) as (d).

Subsec. (d). Pub. L. 102–388, §§601(2), 602, redesignated subsec. (c) as (d), substituted “5 or more of the following” for “4 or more of the following” in introductory provisions, struck out “within the time period specified in subparagraph (F)” after “revocation” in par. (1)(C), and added par. (6). Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 102–388, §§601(2), 603, redesignated subsec. (d) as (e) and amended it generally. Prior to amendment, subsec. (e) read as follows: “Amount of Basic Grants.—The amount of a basic grant to be made in a fiscal year under this section to a State eligible to receive such grant shall be 65 percent of the amount of funds apportioned to such State in such fiscal year under this section.” Former subsec. (e) redesignated (f).

Subsec. (f). Pub. L. 102–388, §§601(2), 604, redesignated subsec. (e) as (f) and substituted “Subject to subsection (c), a State shall be eligible to receive a supplemental grant in a fiscal year of 5 percent of the amount apportioned to the State in fiscal year 1992 under section 402 of this title” for “A State shall be eligible to receive a supplemental grant in a fiscal year of 5 percent of the amount apportioned to the State in the fiscal year under this section” in pars. (1) to (7). Former subsec. (f) redesignated (g).

Subsec. (g). Pub. L. 102–388, §§601(1), (2), 605, redesignated subsec. (f) as (g), struck out “, and the remainder shall be apportioned among the several States” before the period at end, and struck out former subsec. (g) which provided for apportionment of the remainder of the funds authorized to be appropriated to carry out this section among the States according to certain formulas.

Subsec. (j). Pub. L. 102–388, §606, amended subsec. (j) generally. Prior to amendment, subsec. (j) read as follows: “Funding for Fiscal Years 1993–1997.—From sums made available to carry out section 402 of this title, the Secretary shall make available $25,000,000 for each of fiscal years 1993 through 1997 to carry out this section.”

1991—Pub. L. 102–240 substituted section catchline for one which read: “Drunk driving prevention programs” and amended text generally, substituting present provisions for provisions authorizing grants to those States which adopt and implement drunk driving prevention programs described in this section, requiring States to maintain expenditures for drunk driving prevention programs, providing for Federal share payable, maximum amount of basic grants and eligibility for basic grants, providing for supplemental grants to States which implement specific measures to fight drunk driving, and providing for definitions and appropriations for this section.

1990—Subsec. (e)(1)(C). Pub. L. 101–516 struck out “within the time period specified in subparagraph (F)” after “revocation”.

Subsec. (e)(2). Pub. L. 101–516 inserted “a significant portion of” after “under which” and substituted “apprehended and fined for” for “convicted of”.

#### Effective Date of 1992 Amendment; Transition Provisions

Section 607 of title VI of Pub. L. 102–388 provided that:

“(a) Effective Date.—The amendments made by sections 601 through 606 [amending this section] shall take effect October 1, 1992.

“(b) States Eligible for Basic Grants Under Section 410 Before Date of Enactment.—A State that received a basic grant in fiscal year 1992 under section 410 of title 23, United States Code, as in effect on September 30, 1992, and that continues to meet the criteria for a basic grant, as in effect on September 30, 1992, shall be eligible for a basic grant under such section 410, as amended by this title.”

#### Effective Date of 1991 Amendment

Amendment by Pub. L. 102–240, except as otherwise provided, effective Dec. 18, 1991, and applicable to funds authorized to be appropriated or made available after Sept. 30, 1991, and not applicable to funds appropriated or made available on or before Dec. 18, 1991, see section 2008 of Pub. L. 102–240, set out as a note under section 402 of this title.

#### States Eligible for Grants Before December 18, 1991

Section 2004(b) of Pub. L. 102–240 provided that: “A State which, before the date of the enactment of this Act [Dec. 18, 1991], was eligible to receive a grant under section 410 of title 23, United States Code, as in effect on the day before such date of enactment, may elect to receive in a fiscal year grants under such section 410, as so in effect, in lieu of receiving in such fiscal year grants under such section 410, as amended by this Act.”

#### Issuance of Regulations

Section 9002(c) of Pub. L. 100–690 provided that: “The Secretary of Transportation shall issue and publish in the Federal Register proposed regulations to implement section 410 of title 23, United States Code, not later than 6 months after the date of the enactment of this section [Nov. 18, 1988]. The final regulations for such implementation shall be issued, published in the Federal Register, and transmitted to Congress not later than 12 months after such date of enactment.”

#### Alcohol Impairment Standards and Information Exchange

Section 9003 of Pub. L. 100–690 provided that:

“(a) Alcohol Impairment Standards.—

“(1) Study.—Not later than 30 days after the date of enactment of this Act [Nov. 18, 1988], the Secretary of Transportation shall undertake to enter into appropriate arrangements with the National Academy of Sciences to conduct a study to determine the blood alcohol concentration level at or above which any individual when operating any motor vehicle should be deemed to be driving while under the influence of alcohol.

“(2) Report.—In entering into any arrangement with the National Academy of Sciences for conducting the study under this subsection, the Secretary shall request the National Academy of Sciences to submit, not later than 15 months after the date of the enactment of this Act, to the Secretary a report on the results of such study. Upon its receipt, the Secretary shall immediately transmit the report to Congress.

“(b) Federal-State Exchange of Information.—

“(1) Study.—The Secretary of Transportation shall conduct a study regarding the exchange of information between the Federal Government and State law enforcement officials on all arrests for drunk driving offenses in all States. In conducting such study, the Secretary shall consider the usefulness of such information to law enforcement officials as well as any legal restraints on the exchange or use of such information. One purpose of such study shall be to identify effective methods, if any, for the exchange of such information.

“(2) Report.—Not later than 1 year after the date of the enactment of this Act [Nov. 18, 1988], the Secretary shall transmit to Congress a report on the results of the study conducted under this section.

“(c) Authorization of Appropriation.—There is authorized to be appropriated to carry out this section $300,000 for fiscal year 1989.”