President Obama just signed into law the first long-term highway bill in over a decade and the 24/7 Sobriety Program no longer has to overcome several federal road blocks that previously hindered greater implementation across the nation. The Fixing America’s Surface Transportation (FAST) Act will provide parity for the 24/7 Sobriety Program with ignition interlock devices (IIDs), not only removing the threat of penalty for states considering Program implementation, but providing dedicated grant funding to incentivize that implementation. Specifically, the Fast Act does the following:
1) Amends 23 U.S.C. 164 (Repeat Offender Criteria) to include a 24/7 Program in the list of minimum penalties for repeat intoxicated driver offenders;
2) Amends 23 U.S.C. 405(d) (Impaired Driving Countermeasures) to carve out a dedicated incentive grant for states adopting and enforcing a 24/7 Sobriety Program for all offenders.
3) Amends 23 U.S.C. 405(d)(7) to tighten the definition of what constitutes a 24/7 Sobriety Program to expand the scope of the Program and maintain Program fidelity.
This memo provides an overview of relevant provisions of the FAST Act and existing law and their potential impacts on the expansion of the 24/7 Sobriety Program.
Parity with Ignition Interlock Devices for Repeat Offenders (23 U.S.C. 164)
The most important change to current law for the growth of the 24/7 Sobriety Program is the inclusion of the Program in the definition of “Repeat intoxicated driver law” so the Program has parity with ignition interlock devices. Under current law, states are required to enforce laws against repeat impaired driving offenders that, as a minimum penalty, either revoke driving privileges for at least one year or allow for restricted driving privileges conditioned upon installation of an ignition interlock device for not less than one year. States offering alternatives to these two options, such as restricted driving privileges contingent upon enrollment in a 24/7 Sobriety Program, are subject to a “penalty transfer” of federal highway funds. When subject to this penalty, states must earmark 2.5 percent of their Highway Trust Fund apportionment, which is typically used for important construction and infrastructure projects, for alcohol-impaired driving countermeasures pursuant to 23 U.S.C 402. This penalty proved to be a significant impediment to greater statewide adoption of the Program.
The FAST Act amends 23 U.S.C 164(a)(4) to include a 24/7 Sobriety Program as an optional penalty for states to enforce against repeat offenders. Specifically, the language provides that the state’s repeat intoxicated driver law(s) or programs may provide for 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.”
Because Section 164 requires that these penalties be enforced for at least one year, it is important to note that the FAST Act also amends the definition of “Repeat intoxicated driver law” to mean “a state law or combination of laws or programs.” (emphasis added). On average, participants are not on the Program for such a lengthy period of time. This provision allows the 24/7 Sobriety Program to be used in conjunction with IIDs or license revocation to satisfy the year-long driving restriction required of repeat offenders.
The FAST Act also provides exceptions to the repeat offender IID law for individuals that have been certified by a medical doctor as unable to provide a deep breath samples and for individuals required to operate an employer’s vehicle in the scope of employment. These exceptions address the current challenges that states and ignition interlock stakeholders (i.e. providers and MADD) face when enforcing and supporting the repeat offender laws; these exceptions should not affect a state’s adoption or implementation of a 24/7 Program.
It is possible that the 24/7 Program can be used in combination with ignition interlocks. While requiring both programs concurrently was possible under the prior Federal Highway Bill it proved to be impractical and too expensive for the offender. However, encouraging that the repeat offenders to participate in the 24/7 Program before an ignition interlock is ordered to be installed has a number of benefits for the overall program.
A) If an offender is placed on 24/7 program first, all offenders would be identified as participating or non-compliant. Currently 45% to 70% of people sanctioned to be on IID’s never install them.
B) If an offender is placed on the 24/7 program first and then chooses not to participate in the IID program the offender is still sanctioned.
C) If the offender is on 24/7 for 90 days prior to going on the IID program, the data suggests that there is be a good chance that there will be long term impact on offender recidivist behavior – Current IID programs only appear to have an impact on recidivism while the IID is installed on the car.
D) If the offender cannot comply with the 24/7 program they can be referred to a more intensive program where they can get the proper support that they need. IID programs have little ability of intervening with offenders that are not properly suited for the program.
E) If an offender chooses to leave the 24/7 program, the cost of making certain that a functioning IID has been placed on the offenders vehicle will be reduced as the offender would have to prove to the 24/7 Test Site representative that the device had been installed before they would be removed from the requirement for testing under the 24/7 sobriety program. This would eliminate the need to have taxpayer funded FTEs running around the State to ensure compliance.
Overall, the changes made to Section 164 will offer states the flexibility to utilize a 24/7 Sobriety Program for repeat offenders without sacrificing important highway funds.
Funding for the 24/7 Sobriety Program (23 U.S.C. 402 and 405(d))
1) Highway Safety Programs (23 U.S.C. 402)
The largest pot of money available for states to help defray the costs of implementing a 24/7 Sobriety Program is under 23 U.S.C 402, which requires that states develop a highway safety program to be approved by the Department of Transportation. These programs must include initiatives to “reduce injuries and deaths resulting from persons driving motor vehicles while impaired by alcohol or a controlled substance.” The FAST Act makes the following totals available to states for execution of their 402 programs:
(A) $243,500,000 for fiscal year 2016;
(B) $252,300,000 for fiscal year 2017;
(C) $261,200,000 for fiscal year 2018;
(D) $270,400,000 for fiscal year 2019; and
(E) $279,800,000 for fiscal year 2020.
These funds are apportioned to each state according to a formula that considers the state’s relative population and total public road mileage to that of the entire country. Each state must submit a highway safety plan and the final grant allocation for each state is determined by the National Highway Transit Safety Administration (NHTSA). Grant funds issued to states for highway safety programs developed pursuant to Section 402 few to no strings attached. Other grants, such as those provided in Section 405, are more constrained in their permissible uses. Additionally, Section 402 provides states with significant discretion in how the funds are expended. For example, Wisconsin intends to use 402 grant funds to implement its five-county 24/7 Sobriety Pilot Program.
Congress has highlighted that the FAST Act increases emphasis on Section 402 to address each state’s unique highway safety challenges. An increased emphasis is demonstrated by the larger increase in percentage of funding per fiscal year under Section 402 (about 3.5 percent) compared to that under Section 405 (about 1.0 percent). Additionally, as discussed below, the incentive grant funds under Section 405(d)(6) (i.e. 24/7 Sobriety Program and ignition interlocks) can be used for the state’s 402 programs.
2) National Priority Safety Programs (23 U.S.C. 405)
The FAST Act authorizes the following grant funds to be available for National Priority Safety Programs under 23 U.S.C. 405:
(A) $274,700,000 for fiscal year 2016;
(B) $277,500,000 for fiscal year 2017;
(C) $280,200,000 for fiscal year 2018;
(D) $283,000,000 for fiscal year 2019; and
(E) $285,900,000 for fiscal year 2020.
The FAST Act states that in each fiscal year, 52.5% of the funds provided for Section 405 in general are to be allocated for impaired driving countermeasures under Section 405(d). In applying this percentage, the FAST Act then authorizes the following grant funds to be available for impaired driving countermeasures:
(A) $144,217,500 for fiscal year 2016;
(B) $145,687,500 for fiscal year 2017;
(C) $147,105,000 for fiscal year 2018;
(D) $148,575,000 for fiscal year 2019; and
(E) $150,097,500 for fiscal year 2020.
In general, these funds are available for states that adopt and implement effective programs (ex: 24/7 Sobriety Program) to reduce driving under the influence of alcohol, drugs, or the combination of alcohol and drugs. Federal grant funds issued under this section can be used to cover up to 80 percent of the costs associated with these programs.
Based on a determination of each state’s average impaired driving fatality rate (i.e. whether it is a low-range, mid-range, or high-range state), these grant funds may only be used for certain authorized programs. A low-range state is a state that has an average impaired driving fatality rate of 0.30 or lower; a mid-range state is a state that has an average impaired driving fatality rate that is higher than 0.30 and lower than 0.60. A high-range state is a state that has an average impaired driving fatality of 0.60 or higher.
Low–range and medium-range states, as well as high-range states if it is included in the state wide plan, may use of these grant funds for “costs associated with a 24/7 Sobriety Program.” Additionally, low-range states may use up to 50 percent of grant funds awarded under impaired driving countermeasures for any uses approved under Section 402. To note, these funds can also be used for alcohol ignition interlock programs.
Until the FAST Act, impaired driving grant funds could only be used for activities related to alcohol; now, under Section 405(d), the use of these funds has been expanded for drugs in addition to alcohol. Low–range and medium-range states, as well as high-range states if it is included in the state wide plan, may use the grant funds for “hiring a full-time or part-time impaired driving coordinator of the State’s activities to address the enforcement and adjudication of laws regarding driving while impaired by alcohol, drugs, or the combination of alcohol or drugs.”
The FAST Act also amends 23 U.S.C. 405(d)(6) to create a dedicated incentive grant for states adopting and enforcing a 24/7 Sobriety Program for all offenders. The funds designated for this grant were carved out of the existing incentive grant for IIDs, which still exists, but with a reduced total of available funds. The funds made available to states under these two dedicated grants are derived from the total pot designated for 405(d), with a maximum of three percent of those funds available to states with the 24/7 Sobriety Program and a 12 percent maximum for states with qualifying IID laws. The specific totals are:
Grant funds available for States Adopting 24/7 Sobriety Program (FAST Act)
(A) $4,326,525 for fiscal year 2016;
(B) $4,370,625 for fiscal year 2017;
(C) $4,413,150 for fiscal year 2018;
(D) $4,457,250 for fiscal year 2019; and
(E) $4,502,925 for fiscal year 2020.
Grant funds available for States Adopting and Enforcing IID Laws (FAST Act)
(A) $17,306,100 for fiscal year 2016;
(B) $17,482,500 for fiscal year 2017;
(C) $17,652,600 for fiscal year 2018;
(D) $17,829,000 for fiscal year 2019; and
(E) $18,011,700 for fiscal year 2020.
These funds are available to states in proportion to the state’s apportionment under Section 402 for fiscal year 2009.
Grant funds awarded under these dedicated grants may be used for any activities eligible under Sections 405(d) or 402. Intoximeters should encourage the state consultants to highlight for state legislatures and agencies that the state would be free to use every dollar of grant funds awarded under Section 405(d)(6) for any purpose approved under a state’s highway safety program plan pursuant to Section 402 – providing the state with additional flexibility and funding for the Program and other safety programs.
Similar to those provided for repeat offenders under Section 164, the FAST Act also allows for exceptions to the all-offender IID law for individuals that have been certified by a medical doctor as unable to provide a deep breath samples and for individuals required to operate an employer’s vehicle in the scope of employment. This section also provides an additional exception for when a state-certified ignition interlock provider is not available within 100 miles of the individual’s residence. These exceptions are intended to make it easier for states to qualify for this grant funding after only 14 states previously applied for the grant and as few as three qualified to receive it.
Definition of 24/7 Sobriety Program
The FAST Act amends 23 U.S.C 405(d)(7) to makes minor changes to the definition of a 24/7 Sobriety Program in order to better capture existing Programs and to maintain Program fidelity. The changes will expand the Program’s defined scope to the pre-sentencing context, as well as further clarify that twice-daily testing must occur “at a testing location.” How NHTSA interprets “testing location” will be an important factor in how well future Programs adhere to the current evidence-based best practices
The FAST Act specifies that amendments related to Sections 164, 402, and 405 will not take effect until October 1, 2016. This coincides with the start of the federal government’s 2017 fiscal year. NHTSA will be charged providing rulemaking and guidance in advance of the FAST Act’s implementation. NHTSA would have to begin its rulemaking before states are required to submit their FY 2017 safety plans; however, it is questionable if NHTSA can complete its rulemaking processes in time.