Section 164 Repeat Offender Transfer
History and Administration
The repeat offender transfer provision was initially authorized under the Transportation Equity Act of the 21st Century (TEA-21) and reauthorized under SAFETEA-LU and MAP-21. This transfer provision is jointly administered by the National Highway Traffic Safety Administration (NHTSA) and the Federal Highway Administration (FHWA).
This transfer provision encourages states to enact a repeat offender law.
This transfer provision requires states to enact and enfoce a law that provides specific minimum penalties to individuals convicted or a second or subsequent impaired driving offense.
Under MAP-21, these minimum penalties are:
- Suspension of driving privileges for not less than one year, “allowing for the reinstatement of limited driving privileges subject to restrictions and limited exemptions as established by state law, if an ignition interlock law is installed for not less than one year on each of the motor vehicles owned or operated, or both, by the individual.”
- The impoundment or immobilization of the offender's vehicle or the imposition of an ignition interlock only after the one-year suspension period. Impoundment, immobilization or ignition interlocks must apply to every vehicle owned by the offender.
- A mandatory alcohol assessment and any appropriate treatment.
- A sentence of not less than five days of imprisonment or 30 days of community service for a 2nd offense and 10 days of imprisonment or 60 days of community service for a 3rd or subsequent offense.
NHTSA has published guidance on “common pitfalls” for compliance with the minimum requirements of Section 164. States that fail to comply with these minimum requirements have a portion of their highway funds transfered into the state's Section 402 program.
Under MAP-21, the state may elect to use all or a portion of the penalty transfer funds for activities eligible under the Section 148 Highway Safety Improvement Program. If the state does so, then the funds are transferred from FHWA directly to the state department of transportation for the administration of those funds. SHSOs will no longer be required to track HSIP expenditures in that case.
States that failed to enact a repeat offender law by FY 2001 and FY 2002 had 1.5% of their National Highway System (NHS), Surface Transportation Program (STP) and Interstate Maintenance (IM) funds transferred to the Section 402 program. In subsequent years and under SAFETEA-LU, the amount transferred grew to 3%.
In FY 2012 and every year thereafter, if state is not in compliance with the revised repeat offender penalty provisions, then 2.5% of the National Highway System Performance Plan and the Surface Transportation Program funds are transferred to Section 402 in the subsequent fiscal year. (The amount of the transfer may actually be larger than under SAFETEA-LU since the two core highway programs from which funds are transferred are actually larger.)
Total dollar amounts transfered under SAFETEA-LU and MAP-21 are shown below. Click on a column header to see all federal highway safety funding for that fiscal year.
|23||10 + PR||13 + PR||11 + PR|
|12 + PR||11 + PR||11 + PR||11 + PR||13 + PR||15 + PR||16 + PR|