Page 191 TITLE 23—HIGHWAYS § 408

under this section. In developing such procedure, the Secretary shall consult with the

States and political subdivisions thereof, appropriate Federal departments and agencies, and

such other public and nonprofit organizations as

the Secretary deems appropriate.

(c) Any State, political subdivision thereof,

and nonprofit organization may make an application under this section to carry out an innovative project described in subsection (a) of this

section. Such application shall be in such form

and contain such information as the Secretary,

by regulation, prescribes.

(d) Not to exceed 2 per centum of the funds authorized to be appropriated to carry out this section shall be available to the Secretary for the

necessary costs of administering the provisions

of this section.

(e) The Secretary shall submit an annual report to the Congress which provides a description of each application received for a grant

under this section and an evaluation of innovative projects carried out with grants made under

this section.

(Added Pub. L. 95–599, title II, §208(a), Nov. 6,

1978, 92 Stat. 2732.)

§ 408. Alcohol traffic safety programs

(a) 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) 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 two fiscal years preceding the date of enactment of this section.

(c) No State may receive grants under this

section in more than 5 fiscal years. 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 per centum of

the cost of implementing and enforcing in

such fiscal year the alcohol and controlled

substance traffic safety program adopted by

the State pursuant to subsection (a);

(2) in the second fiscal year the State receives a grant under this section, 50 per centum of the cost of implementing and enforcing

in such fiscal year such program; and

(3) in the third, fourth, and fifth fiscal years

the State receives a grant under this section,

25 per centum of the cost of implementing and

enforcing in such fiscal year such program.

(d)(1) 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 (e)(1) shall equal

30 per centum of the amount apportioned to

such State for fiscal year 1983 under section 402

of this title.

(2) Subject to subsection (c), the amount of a

supplemental grant made under this section for

any fiscal year to any State which is eligible for

such a grant under subsection (e)(2) shall not exceed 20 per centum of the amount apportioned to

such State for fiscal year 1983 under section 402

of this title. Such supplemental grant shall be in

addition to any basic grant received by such

State.

(3) Subject to subsection (c), the amount of a

special grant made under this section for any

fiscal year to any State which is eligible for

such a grant under subsection (e)(3) shall not exceed 5 per centum of the amount apportioned to

such State for fiscal year 1984 under sections 402

and 408 of this title. Such grant shall be in addition to any basic or supplemental grant received

by such State.

(e)(1) For purposes of this section, a State is

eligible for a basic grant if such State provides—

(A) for the prompt suspension, for a period

not less than ninety days in the case of a first

offender and not less than one year in the case

of any repeat offender, of the driver’s license

of any individual who a law enforcement officer has probable cause under State law to believe has committed an alcohol-related traffic

offense, and (i) to whom is administered one or

more chemical tests to determine whether the

individual was intoxicated while operating the

motor vehicle and who is determined, as a result of such tests, to be intoxicated, or (ii) who

refuses to submit to such a test as proposed by

the officer;

(B) for a mandatory sentence, which shall

not be subject to suspension or probation, of

(i) imprisonment for not less than forty-eight

consecutive hours, or (ii) not less than ten

days of community service, of any person convicted of driving while intoxicated more than

once in any five-year period;

(C) that 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

(D) for increased efforts or resources dedicated to the enforcement of alcohol-related

traffic laws and increased efforts to inform the

public of such enforcement.

(2) For purposes of this section, a State is eligible for a supplemental grant if such State is

eligible for a basic grant and in addition provides for some or all of the criteria established

by the Secretary under subsection (f).

(3) For the purposes of this section, a State is

eligible for a special grant if the State enacts a

statute which provides that—

(A) any person convicted of a first violation

of driving under the influence of alcohol shall

receive—

(i) a mandatory license suspension for a

period of not less than ninety days; and either

(ii)(I) an assignment of one hundred hours

of community service; or

(II) a minimum sentence of imprisonment

for forty-eight consecutive hours;

(B) any person convicted of a second violation of driving under the influence of alcohol

within five years after a conviction for the
§ 408 TITLE 23—HIGHWAYS Page 192

same offense, shall receive a mandatory minimum sentence of imprisonment for ten days

and license revocation for not less than one

year;

(C) any person convicted of a third or subsequent violation of driving under the influence

of alcohol within five years after a prior conviction for the same offense shall—

(i) receive a mandatory minimum sentence

of imprisonment for one hundred and twenty

days; and

(ii) have his license revoked for not less

than three years; and

(D) any person convicted of driving with a

suspended or revoked license or in violation of

a restriction due to driving under the influence of alcohol conviction shall receive a mandatory sentence of imprisonment for at least

thirty 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.

(f) The Secretary shall, by rule, establish criteria for effective programs to reduce traffic

safety problems resulting from persons driving

while under the influence of alcohol, which criteria shall be in addition to those required for a

basic grant under subsection (e)(1). The Secretary shall establish such criteria in cooperation with the States and political subdivisions

thereof, appropriate Federal departments and

agencies, and such other public and nonprofit

organizations as the Secretary may deem appropriate. Such criteria may include, but need not

be limited to, requirements—

(1) for the establishment and maintenance of

a statewide driver recordkeeping system from

which repeat offenders may be identified and

which is accessible in a prompt and timely

manner to the courts and to the public;

(2) for the creation and operation of rehabilitation and treatment programs for those arrested and convicted of driving while intoxicated;

(3) for the impoundment of any vehicle operated on a State road by any individual whose

driver’s license is suspended or revoked for an

alcohol-related driving offense;

(4) for the establishment in each major political subdivision of a State of locally coordinated alcohol traffic safety programs which

are administered by local officials and are financially self-sufficient;

(5) for the grant of presentence screening authority to the courts;

(6) for the setting of the minimum drinking

age in such State at twenty-one years of age;

(7) for the consideration of and, where consistent with other provisions of State law and

constitution the adoption of, recommendations that the Presidential Commission on

Drunk Driving may issue during the period in

which rules are being made to carry out this

section; and

(8) for the creation and operation of rehabilitation and treatment programs for those arrested and convicted of driving while under

the influence of a controlled substance or for

the establishment of research programs to develop effective means of detecting use of controlled substances by drivers.

(g) There is hereby authorized to be appropriated to carry out this section, out of the

Highway Trust Fund, $25,000,000 for the fiscal

year ending September 30, 1983, and $50,000,000

per fiscal year for each of the fiscal years ending

September 30, 1984, and September 30, 1985. All

provisions of chapter 1 of this title that are applicable to Federal-aid primary highway funds,

other than provisions relating to the apportionment formula and provisions limiting the expenditures of such funds to Federal-aid systems,

shall apply to the funds authorized to be appropriated to carry out this section, except as determined by the Secretary to be inconsistent

with this section and except that sums authorized by this subsection shall remain available

until expended. Sums authorized by this subsection shall not be subject to any obligation

limitation for State and community highway

safety programs.

(Added Pub. L. 97–364, title I, §101(a), Oct. 25,

1982, 96 Stat. 1738; amended Pub. L. 98–363, §§4, 7,

July 17, 1984, 98 Stat. 436, 438; Pub. L. 100–17,

title II, §203(a), (b), Apr. 2, 1987, 101 Stat. 219.)

AMENDMENTS

1987—Subsec. (c). Pub. L. 100–17, §203(a), substituted

‘‘5’’ for ‘‘three’’ in introductory provisions and ‘‘third,

fourth, and fifth fiscal years’’ for ‘‘third fiscal year’’ in

par. (3).

Subsec. (g). Pub. L. 100–17, §203(b), inserted ‘‘and except that sums authorized by this subsection shall remain available until expended’’ before period at end of

second sentence.

1984—Subsec. (a). Pub. L. 98–363, §§4(a), 7(a), struck

out ‘‘basic and supplemental’’ after ‘‘Secretary shall

make’’ and inserted ‘‘or a controlled substance’’ after

‘‘alcohol’’.

Subsec. (c)(1). Pub. L. 98–363, §4(b), inserted ‘‘and controlled substance’’ after ‘‘alcohol’’.

Subsec. (d)(3). Pub. L. 98–363, §7(b), added par. (3).

Subsec. (e)(3). Pub. L. 98–363, §7(c), added par. (3).

Subsec. (f)(8). Pub. L. 98–363, §4(c), added par. (8).

EFFECTIVENESS OF DRUNK DRIVING LAWS

Pub. L. 104–59, title III, §358(d), Nov. 28, 1995, 109 Stat.

626, provided that: ‘‘The Secretary shall conduct a

study to evaluate the effectiveness on reducing drunk

driving and appropriateness of laws enacted in the

States which allow a health care provider who treats

an individual involved in a vehicular accident to report

the blood alcohol level, if known, of such individual to

the local law enforcement agency which has jurisdiction over the accident site if the blood alcohol concentration level exceeds the maximum level permitted

under State law.’’

MINIMUM DRINKING AGE

Pub. L. 97–424, title II, §209, Jan. 6, 1983, 96 Stat. 2140,

provided that: ‘‘The Congress strongly encourages each

State to prohibit the sale of alcoholic beverages to persons who are less than 21 years of age.’’

REGULATIONS; CONGRESSIONAL VETO OF SUPPLEMENTAL

GRANTS

Section 101(c) of Pub. L. 97–364 provided that: ‘‘The

Secretary of Transportation shall issue and publish in

the Federal Register proposed regulations to implement section 408 of title 23, United States Code, not

later than November 1, 1982. The Secretary shall allow
Page 193 TITLE 23—HIGHWAYS § 410

public comment and hold public hearings on the proposed regulations to encourage maximum citizen participation. The final regulations shall be issued, published in the Federal Register, and transmitted to Congress before February 1, 1983. To the extent such regulations relate to the making of basic grants under such

section 408, such regulations shall become effective on

the date on which they are published in the Federal

Register. To the extent such regulations relate to the

making of supplemental grants under such section 408,

such regulations shall become effective April 1, 1983,

unless before such date either House of Congress by resolution disapproves such regulations to such extent. If

such regulations are so disapproved by either House of

Congress, the Secretary shall not obligate for such supplemental grants any amount authorized to carry out

such section 408 for the fiscal year ending September

30, 1983, or any subsequent fiscal year, unless specifically authorized to do so by a statute enacted after the

date of enactment of this Act [Oct. 25, 1982].’’

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 157 of this title.

§ 409. Discovery and admission as evidence of

certain reports and surveys

Notwithstanding any other provision of law,

reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying,

evaluating, or planning the safety enhancement

of potential accident sites, hazardous roadway

conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or

for the purpose of developing any highway safety construction improvement project which may

be implemented utilizing Federal-aid highway

funds shall not be subject to discovery or admitted into evidence in a Federal or State court

proceeding or considered for other purposes in

any action for damages arising from any occurrence at a location mentioned or addressed in

such reports, surveys, schedules, lists, or data.

(Added Pub. L. 100–17, title I, §132(a), Apr. 2,

1987, 101 Stat. 170; amended Pub. L. 102–240, title

I, §1035(a), Dec. 18, 1991, 105 Stat. 1978; Pub. L.

104–59, title III, §323, Nov. 28, 1995, 109 Stat. 591.)

AMENDMENTS

1995—Pub. L. 104–59 inserted ‘‘or collected’’ after

‘‘data compiled’’.

1991—Pub. L. 102–240 substituted ‘‘Discovery and admission’’ for ‘‘Admission’’ in section catchline and

‘‘subject to discovery or admitted into evidence in a

Federal or State court proceeding’’ for ‘‘admitted into

evidence in Federal or State court’’ in text.

EFFECTIVE DATE OF 1991 AMENDMENT

Amendment by Pub. L. 102–240 effective Dec. 18, 1991,

and applicable to funds authorized to be appropriated

or made available after Sept. 30, 1991, and, with certain

exceptions, not applicable to funds appropriated or

made available on or before Sept. 30, 1991, see section

1100 of Pub. L. 102–240, set out as a note under section

104 of this title.

§ 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;