February 3, 2005
OPEN ALCOHOL CONTAINERS IN MOTOR VEHICLES, CONNECTICUT LAW, AND FEDERAL REQUIREMENTS
By: James J. Fazzalaro, Principal Analyst
You asked several questions regarding possession of open containers of alcohol in motor vehicles including:
1. What does Connecticut law say regarding open alcohol containers in motor vehicles?
2. What does federal law require states to have with respect to open container laws?
3. What are the consequences for states that do not comply with the federal requirements?
4. How many states have open container laws that comply with the federal requirements?
5. How much federal funding is currently subject to the penalty transfer sanction in Connecticut?
It is illegal in Connecticut for someone operating a motor vehicle on a public highway, in a parking lot for 10 or more cars, on certain other classes of roads, or on school property to drink any amount of alcohol. It is legal for any vehicle occupant other than the driver to possess or consume an alcoholic beverage in a vehicle. A driver found consuming alcohol may be fined up to $500, imprisoned for up to three months, or both. Another law subjects any driver under age 21, under most circumstances, to a possible 60-day license suspension if a police officer finds any alcoholic beverages, either opened or unopened, anywhere in a vehicle, provided the driver knew or had reason to know it was there.
Federal law requires states to enact and enforce a law prohibiting any driver or passenger in a motor vehicle on a public highway or road shoulder from possessing an open alcoholic beverage container or consuming alcohol anywhere in the passenger area. To comply with the federal requirements, a state law must meet certain other criteria as well. Any state that is found not to have a complying law is subject to a transfer of 3% of the federal funds it receives in three highway construction categories—Interstate Maintenance, National Highway System, and Surface Transportation Program—to the state's Section 402 Highway Safety Grants Program.
These funds are not lost to the state. Rather they are redirected from construction programs to the safety grant program. However, once funds have been transferred to the Section 402 program, they are no longer subject to a 10-20% state matching requirement when spent.
Transferred funds may be (1) used for alcohol-impaired driving countermeasures; (2) directed to state and local law enforcement agencies for enforcement of drunk driving and related laws including activities such as equipment purchases, police training, and enforcement activities; or (3) expended on any activity that is eligible for funding under the hazard elimination program. States are free to determine how the funds will be distributed among these uses and, for example, may allocate all transferred funds for hazard elimination if they so choose.
Hazard elimination activities appear to be fairly broadly defined and some states have used transferred funds for projects like safety-related bridge improvements, truck lanes, guard rail and median barrier projects, deer accident prevention measures, highway safety data collection system improvements, and traffic signals, among other things.
In the current federal fiscal year, 36 states and the District of Columbia are considered to have laws that comply with the federal edict and thus are not subject to the penalty transfer. The other 14 states, including Connecticut, do not have complying laws and are subject to the transfer. In federal FY 2004, approximately $5.8 million in funds apportioned to Connecticut were transferred to its Section 402 Safety Grant Program. Currently, the amount under transfer appears slightly smaller (approximately $4.8 million) because temporary extensions to federal funding programs approved by Congress provide only a partial year allocation. The amount subject to transfer is likely to increase closer to last year's level once Congress enacts the complete reauthorization legislation later this year.
In Connecticut, it is illegal for someone to drink any alcoholic beverage while operating a motor vehicle on a public road; on a road of a specially chartered municipal association or of a fire, sewer, or other special district; in a parking area for 10 cars or more; on a private road on which a speed limit has been established according to law; or on any school property (CGS § 53a-213). It is a Class C misdemeanor punishable by a fine of up to $500, imprisonment for up to three months, or both. It is not illegal for a passenger other than the driver to possess or consume alcohol in a motor vehicle.
Under another law, anyone under age 21 driving a motor vehicle in which a police officer finds any alcoholic beverages, whether open or sealed, is subject to a 60 day license revocation unless the underage driver is either (1) accompanied by a parent or guardian, or (2) is over age 18 and is either a state liquor permit holder (wholesale or retail) or is performing services for such a permittee. The motor vehicle commissioner may revoke the driver's license if he finds at a hearing that the driver knew or had reason to know that the alcoholic beverages were anywhere in the vehicle (CGS § 14-111a).
FEDERAL OPEN CONTAINER LAW REQUIREMENTS
In 1998, Congress enacted legislation intended to increase the likelihood that states would adopt laws prohibiting open containers of alcohol in motor vehicles (23 USC § 154). Under the federal law, states must have adopted laws meeting certain criteria by October 1, 2000 or else undergo a diversion of a small percentage of federal highway construction grant funds to the states' highway safety grant programs. The states do not lose the funds; they are redirected from the construction programs to the safety grant program.
To comply with the federal mandate and thus avoid the penalty transfer, a state's open container law must:
● Prohibit both possession of any open alcoholic beverage container and consumption of any alcoholic beverage;
● Cover the passenger area of any motor vehicle, including unlocked glove compartments and any other areas of the vehicle that are readily accessible to the driver or passengers while in their seats;
● Apply to containers with any measurable amount of alcoholic beverage in them;
● Apply to all open alcoholic beverage containers and all alcoholic beverages, including beer, wine, and spirits that contain 0.5% or more of alcohol by volume (thus including 3.2% beer);
● Apply to all vehicle occupants except passengers of vehicles designed, maintained, or used primarily for transporting people for compensation (i.e., buses, taxicabs, and limousines) or the living quarters of motor homes;
● Apply to vehicles on a public highway or the right-of-way (limited to the road shoulder) of a public highway; and
● Require primary enforcement, rather than requiring probable cause that another violation had been committed before allowing enforcement of the open container law (i.e., secondary enforcement).
Federal regulations define a vehicle's passenger area as the area designed to seat the driver and passengers while the motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in their seating positions, including the glove compartment. An open container is defined as any bottle, can, or other receptacle that (1) contains any amount of alcoholic beverage and (2) is open or has a broken seal or the contents of which are partially removed. Alcoholic beverages include (1) beer, ale, and other similarly fermented beverages containing one-half of one percent or more alcohol by volume brewed or produced in whole or part from malt or any malt substitute (2) wine of not less that one half of one percent alcohol by volume, or (3) distilled spirits known as ethyl alcohol, ethanol, or spirits of wine in any form including any dilutions or mixtures (23 CFR § 1270).
The federal regulations specify that a qualifying open container law may contain an exception allowing an open alcohol container to be placed behind the last upright seat or in an area not normally occupied by the driver or passengers in a vehicle that is not equipped with a trunk.
CONSEQUENCES OF NONCOMPLIANCE
If a state does not have a law that complies with the federal mandate, a total of 3% of a its annual apportionment of federal funds in the Interstate Maintenance (IM), National Highway System (NHS), and Surface Transportation Program (STP) funding allocations must be transferred to the state's Section 402 Highway Safety Grant Program (23 U. S. C § 154). These funds are not lost to the state. The state continues to get all of these funds, but it must spend them differently than it might have had they not been subject to the transfer.
Allowable Uses For Transferred Funds
Funds transferred to the Section 402 program under this penalty provision may be (1) used for alcohol-impaired driving countermeasures or (2) directed to state and local law enforcement agencies for enforcement of laws prohibiting driving while intoxicated or other related laws, including the purchase of equipment, the training of officers, and the use of additional personnel for specific alcohol-impaired driving countermeasures dedicated to enforcement of the laws (23 U. S. C. § 154(c)). However, the law also states that, a state may elect to use “all or a portion of the funds transferred” for activities that are eligible expenditures under the hazard elimination program.
The federal share of the cost of a project carried out with transferred funds for any of these uses, including hazard elimination activities, is 100%, that is, no state match is required (23 CFR § 1270. 7(d)). Prior to being transferred to the Section 402 grant program, expenditure of any of these funds required a 10-20% state match, depending on the program category.
The types of construction projects that qualify for funding under the hazard elimination program appear quite broad, covering projects that resolve problems that constitute a danger to motorists, bicyclists, and pedestrians. Federal law allows them to be spent on any public road, public surface transportation facility or publicly owned bicycle or pedestrian pathway or trail, or for any traffic calming procedure.
An April 2003 Government Accountability Office (GAO) analysis examined how states subject to these penalty sanctions have allocated the transferred funds between the behavioral and safety construction
uses. The majority of the states had allocated at least part of the transferred funds to safety constructon with five allocating all of their transferred funds for these purposes.
The specific types of projects varied considerably. The GAO found, for example, that California used transferred funds for construction of a truck lane on I-15, a median barrier project on I-5, and barrier guardrail on Route 160; Georgia used its transferred funds to improve its highway safety data collection system, red light running technology development, guardrail delineators, and deer accident prevention measures; Missouri used its transferred funds for traffic signals, slope grading, and paving to improve intersections; New York used its transferred funds for the safety aspects of a single bridge project; Ohio used 95% of its transferred funds for seven safety construction projects; and Texas used its transferred funds to establish a median barrier program and a road shoulder rumble strip program. The GAO report stated that states “may allocate funds back to the Federal-Aid Highway program where they are to be used for highway construction projects that address safety concerns, which could include almost any kind of unsafe road or bridge condition. ” (Better Guidance Could Improve Oversight of State Highway Safety Programs, GAO-03-474, April 2003, p. 7)
The Transfer And Allocation Process
As specified in federal regulations and guidance, the penalty transfer and funds allocation process is fairly simple, but requires coordination between the state's highway safety and construction officials. On the federal level, the transfer requires movement of funds from FHWA-administered highway construction programs to the NHTSA-administered safety grant program. On the state level, this could involve officials from more than one state agency, but in some states, like Connecticut, the construction officials and safety officials are within the same state agency.
When a state is notified of a penalty transfer, FHWA indicates how much is subject to transfer but the sanctioned state can determine the distribution of the transfers among the three affected programs. Procedurally, FHWA officially notifies the non-conforming state on October 1 of the amount being transferred to the Section 402 program. FHWA distributes the transfers proportionally among the three source programs. The state has until October 30 to notify FHWA through the Division Administrator if it would like to change the distribution. It can make any adjustments it wants, including taking no money from a program or taking all of the money from a single program.
After the funds have been transferred, the state must update its Highway Safety Plan, prepared pursuant to the requirements of 23 U. S. C § 402, to indicate how it intends to use the transferred funds. The Governor's Representative for Highway Safety and the chief official of the state's department of transportation must jointly identify how the transferred funds will be programmed between the behavioral-type alcohol-impaired driving programs, the safety construction-type projects under the hazard elimination program, and planning and administration costs and notify the NHTSA regional administrator and the FHWA division administrator within 60 days after the funds are transferred. Alternatively however, if a state knows that there will be a transfer of funds in October, it may choose to plan ahead and include a program plan for these funds in its highway safety plan submission the preceding September. The discussion of hazard elimination activities would have to include the total amount to be spent by program type, but does not need to include specific projects and locations.
The guidance materials on the transfer programs recognize that in some instances, the state's highway safety office is part of the DOT organization. This is the case in Connecticut. In such cases, projects internal to the organization typically may have little supporting paperwork and fund transfers are usually controlled electronically. When the highway safety office is part of the DOT structure, the federal guidance states that the highway safety office and highway agency should develop a written internal funding agreement to manage the hazard elimination transfer funds.
STATES WITH OPEN CONTAINER LAWS THAT COMPLY WITH FEDERAL REQUIREMENTS
According to the current Federal Highway Administration advance apportionment of federal funds for FY 2005 under the Surface Transportation Extension Act (Part V), a total of 36 states and the District of Columbia have open container laws that comply with the federal reqirements and thus are not subject to the 3% penalty transfer. The 36 states are: Alabama, Arizona, California, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Vermont, Washington, and Wisconsin.
CONNECTICUT FUNDING CURRENTLY SUBJECT TO PENALTY TRANSFER
In federal FY 2004, a total of $5,842,406 in federal funds from the Interstate Maintenance, National Highway System, and Surface Transportation Program appportionments for Connecticut was transferred to the Section 402 safety grant program under the 3% transfer requirement. According to the FHWA's Advance Apportionment Notice dated October 28, 2004, in the current fiscal year (FFY 2005), which began on October 1, 2004, a slightly smaller amount of $4,852, 254 was designated for transfer to Section 402 programs. This appears primarily due to the fact that the current apportionments are based on a partial allocation of funds under the latest program extension approved by Congress pending enactment of the full multi-year transportation funding reauthorization bill. When the full reauthorization is enacted (possibly sometime in the Spring), apportionments will be adjusted for the full fiscal year and the amount transferred is likely to increase closer to the amount transferred in FY 2004.