October/November 1999 State Legislatures magazine: TEA 21 provisions for federal funding

State Legislatures Magazine: October/November 1999

Editor's Note: This article appeared in the October/November 1999 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.

There's More to TEA-21 Than .08

The Good News—Incentives
The Bad News—Penalties

There's More to TEA-21 Than .08

There's funding to be gained and lost under TEA-21's drunk driving provisions.

By Jeanne Mejeur

The Transportation Equity Act for the 21st Century (TEA-21) became law in June 1998, creating massive challenges and opportunities for the states. TEA-21 includes mandates and funding for a wide variety of highway safety and transportation programs and also has provisions related to drunk driving. It's a complex law that basically comes down to two things: incentives and penalties.

THE GOOD NEWS—INCENTIVES
The best known drunk driving provision of TEA-21 is the incentive grant for adopting .08 as a state's blood alcohol concentration (BAC) limit. Currently 17 states have .08 laws on the books and are entitled to additional highway funding. The bonanza each state will receive varies based on the amount of their current Section 402 funding, which will make sense only to transportation fiscal gurus—it's a formula based on population and road miles. But suffice it to say, states that pass .08 illegal per se legislation will be splitting $500 million in incentive grants from 1998 to 2003. The amount will vary each year depending on the number of states splitting the pie. Illegal per se laws make it a crime to drive with a BAC level above a statutorily established limit, usually .08 or .10, and impairment need not be demonstrated.

The best-kept secret of TEA-21 is that there is $219.5 million available in additional incentive grants for states that adopt specific drunk driving countermeasures (Basic Grant A) or meet performance criteria in reducing drunk driving deaths (Basic Grant B). States that meet the requirements of either grant may also qualify for up to six types of supplemental grants through 2003.

To qualify for Basic Grant A, a state must implement at least five of the following seven criteria:

Administrative license revocation.
A program to prevent drivers under age 21 from obtaining alcoholic beverages.
A program for intensive enforcement of laws forbidding driving while impaired.
A graduated licensing law with nighttime driving restrictions and zero tolerance.
A program to target drivers with high BAC.
Programs to reduce impaired driving by young adults age 21 through 34.
An effective system for increasing the rate of testing for blood alcohol levels of drivers in fatal crashes; in FY 2001 and after, the testing rate must be above the national average.

To qualify for Basic Grant B, a state must demonstrate two things:

A reduction in its percentage of fatally injured drivers with .10 percent BAC or greater in each of the last three years, and
A lower percentage of drivers with .10 percent BAC or greater than the national average for each of the last three years.
States that qualify for either of the basic grants may also apply for one or more "supplemental grants," by implementing any of the following:
Videotaping of drunk drivers by police.
A self-sustaining program for preventing impaired driving.
Laws to reduce driving with a suspended license.
Use of passive alcohol sensors by police.
Effective system for tracking information on drunk drivers.
Other innovative programs.

THE BAD NEWS—PENALTIES
TEA-21 imposes penalties for states that don't enact both open container laws and specific penalties for repeat drunk driving offenders. To avoid the loss of highway funds, states must have these laws in place by Oct. 1, 2000. Failure to do so will result in a loss of 1.5 percent of highway construction and maintenance funds in 2001 and 2002 and 3 percent in subsequent years. A bit more bad news is that each of the provisions are more complex than they seem on the surface.

Open Container: While the National Highway Traffic Safety Administration (NHTSA) refers to this sanction as open container, a more careful reading of the details shows that it's also an anti-consumption requirement. The act requires that states pass laws that prohibit possession of "any open alcoholic beverage container, or the consumption of any alcoholic beverage, in the passenger area of any motor vehicle."

Forty states currently have anti-consumption laws prohibiting drinking alcohol in a car or truck, while only 28 states have open container laws.

Repeat Offenders: States must enact all of these penalties for repeat offenders, which TEA-21 defines as a second or subsequent drunk driving conviction:

Suspend the repeat offender's driver's license for not less than one year.
Impound or immobilize the driver's cars or have an ignition interlock installed on each of the vehicles.
Assess the driver's degree of alcohol abuse and provide appropriate treatment.
Impose not less than 30 days of community service or not less than five days of imprisonment for a second offense. For a third and subsequent offenses, not less than 60 days of community service or not less than 10 days of imprisonment would be imposed.

There's a lot to do by Oct. 1, 2000, to avoid losing federal highway funds. A summary of TEA-21 can be found on NHTSA's Website at http://www.fhwa.dot.gov/tea21/sumsafe.htm#ap.

More detailed information on each section of the act can be found through the table of contents at http://www.fhwa.dot.gov/tea21/sumtoc.htm. The sections are worth looking at, as most contain fact sheets that summarize the section and compliance guides that help explain the specific requirements.

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