The Pew Charitable Trusts

Drunk driving may be a crime in every state, but drinking while driving is still legal in three of them Indiana, Mississippi and Montana -- as long as the driver is sober.

In America, in fact, the right to tipple a bit while breezing down the road still finds some strong support, especially in places where resentment of federal dictates is deeply ingrained.

In eight states Alaska, Connecticut, Delaware, Louisiana, Missouri, Tennessee, Virginia and Wyoming passengers may drink alcoholic beverages in a moving vehicle. And in Arkansas, Colorado and West Virginia, it's legal to have open containers of alcohol in vehicles, although no one may drink from them while the vehicle is moving.

Every other state strictly forbids open alcoholic beverages in motor vehicles. But lawmakers in the 14 states listed have given up millions in federal highway construction funding as their penalty for refusing to pass open container laws strict enough to meet federal requirements.

"People feel that as long as you're not driving under the influence or driving while impaired, you should not be restricted in your consumption of alcohol," says Mississippi state Representative Percy Watson.

The 1998 Transportation Equity Act for the 21st Century (TEA-21), which provides over $200 billion in federal highway funding to states, requires states to prohibit both the possession of any open alcoholic beverage and the consumption of alcohol in the passenger area of any motor vehicle operating on public roads.

That applies to any alcoholic beverage container that has been opened: A re-corked bottle of wine or flask of liquor would violate the federal open container ban.

States that refused to conform to this provision by October 2000 have had a small percentage of their federal highway construction funds transferred every year to highway safety programs to combat drunk driving and reduce road hazards. In October 2002, the penalty doubled from 1.5 percent to 3 percent of federal funds.

Thirty-six states have adopted open container laws that meet federal standards, but opposition has been surprisingly stiff in states that have refused to ban open containers.

"Open container laws really strike a nerve with some states," said Jonathan Adkins, a spokesman for the Governor's Highway Safety Association (GHSA), a nonprofit association of states that advocates national highway safety policies. "It's a cultural issue for a lot of states, and a lot of people think it's an infringement of their rights."

Mississippi and Montana are the only states that have not passed any laws restricting the consumption of alcohol in moving vehicles. Indiana forbids drinking and driving if your blood alcohol count is over .04 -- roughly equivalent to about two drinks in one hour.

Opposition to open container laws has been so strong in some state legislatures that most open container bills die in committee before coming to a vote, officials said.

Mississippi's Rep. Watson, Democratic chairman of the state's House Judiciary Committee, said open container bills have been introduced in every legislative session for the past decade, but rarely came to the floor for a vote.

"Most of the time it's difficult to get these bills out of committee because the people have told their representatives they feel like the law is not needed," Watson said.

Mississippi lawmakers did lower the legal blood alcohol content to .08 this year, meeting another federal mandate. But Watson said it's unlikely open containers will be banned any time soon.

Such a ban was one of Montana Republican Gov. Judy Martz's highest priorities for this spring's legislative session -- but despite the governor's personal lobbying, it became one of her worst defeats.

"This was the governors bill, it was a high priority for the governor and it failed," said David Galt, Montana director of transportation.

Martz's bill got stuck in the Senate Judiciary Committee, so passing it on the floor required a super-majority of 60 out of 100 votes. It lost last month by 48-50, failing to even gain a majority despite a direct personal appeal from the governor.

"There is a myth in Montana that drinking and driving is part of being a Montanan. I say that is nonsense," she said in legislative testimony. "It doesn't make sense to me that we do not tolerate driving drunk but are willing to accept drinking while driving."

Some Montana lawmakers feared the bill would expand policing powers without curbing drunk driving. But much of the resistance was simply against federal strong-arming.

"Folks here don't like blackmail from the federal government," Galt said. "They don't like the federal government withholding highway money to force them to pass laws they don't agree with."

Three percent of Montana's highway construction funds -- $5.6 million a year will be transferred to the state's highway safety account until it bans open containers. Martz has vowed to reintroduce the open container bill, Galt said, but she won't get another chance until the legislature reconvenes in 2005 (Montana's legislature meets every two years).

Supporters of open container laws say alcohol-related traffic accidents have dropped in states that have passed them. A U.S. Department of Transportation study found that states without open container laws have a 5 percent higher rate of alcohol-related fatalities than states with federally compliant laws.

The national average for alcohol-related traffic fatalities is 39 percent. Montana's 2001 average was among the highest in the country, at 45 percent of fatalities. But Mississippi was below the national average at 36 percent, as was Indiana at 37 percent.

Mothers Against Drunk Driving sponsored a study that found open container laws also reduced hit-and-run accidents in some states, including Maine, Rhode Island and South Dakota.

But some state transportation officials said these studies are inconclusive.

"I've never seen any studies that actually prove outright that reduction in alcohol-related death and injuries is caused by open container laws one way or the other," said Richard Squeglia, spokeman for the Connecticut Department of Transportation.

It's legal for passengers but not drivers -- to drink alcohol in motor vehicles in Connecticut. The state had the highest rate of alcohol-related traffic fatalities in 2001, at 51 percent.

Wyoming, like Montana, is known for its open roads and rowdy "cowboy culture," and only recently outlawed drinking and driving. State transportation officials said they are gradually seeing a change of attitude in their state regarding drunken driving.

"It is a cultural issue, but slowly we're starting to see the tide turn on our culture," said Lisa Murphy of the Wyoming Department of Transportation. "There is a shift starting in Wyoming and people are starting to say that it's not OK to drink and drive."