The Pew Charitable Trusts

Imagine yourself behind the wheel of a beer delivery truck in New Mexico. At a stop, you find a cracked bottle that you don't want leaking on the rest of your stock. State law lets you bring the bottle and what remains of its contents into your cab without running afoul of the statute banning open containers of alcohol in motor vehicles, but it does so at the cost of $3.3 million to the state's highway construction and maintenance fund.

Never mind that New Mexico's motor vehicle operating code goes a step beyond several other states' statutes, which prohibit drivers - but not passengers - from imbibing on the road. The loophole for employees of licensed liquor operators puts New Mexico on a flaw list with 20 other states that will now have fewer of the federal dollars they use to repair aging roads and bridges and build new highways.

As of Sunday, Oct. 1, 33 states and the District of Columbia were scheduled to lose nearly $300 million in federal funds from their highway construction budgets for failing to meet precise standards regarding open containers and penalties for repeat driving while intoxicated (DWI) offenders. Non-compliance in either category results in a 1.5 percent deduction from a state's share of the federal roadbuilding outlay.

But here's a curious twist: state transportation officials don't seem deeply troubled.

That's because the states won't really lose a dime. Federal law simply redirects the money to traffic safety, where it is put toward programs often designed in consultation with the National Highway Traffic Safety Administration ( NHTSA ).). Gavin noted that some states will be more affected than others by the money shift.

States may use the money to bankroll drunk driver education, purchase breathalyzer equipment or dedicate additional officers to sobriety checkpoints . They may also use it to make their roads safer.

"We're actually kind of glad about it," says Mike Cross of the Department of Transportation in Texas, which fell short in both categories and stands to see more siphoned out of its construction tank this year than any other state: over $48 million.

Cross says that Texas plans to spend the bulk of its detoured highway cash on safety-related road improvements. Instead of a few extra lane-miles of interstate, Texans will see beefed-up spending on new turn lanes and signals at dangerous intersections, additional guard rails and rumble strips, and reduced roadway hazards.

Lost construction funds "could hurt a little bit," a transportation official told reporters in Virginia, where debate over funding new road construction dominated the 2000 General Assembly and continues to be an issue in the fall U.S. Senate campaign between Democratic incumbent Chuck Robb and Republican challenger George Allen. Virginia's willingness to let automobile passengers consume alcohol will reduce the state's share of federal highway constructions funds by $7.5 million. But officials say nearly half of that sum -- $3.8 million -- will simply be redirected into road safety enhancements, according to The Associated Press .

That doesn't mean state and local officials don't balk at what they see as inappropriate interference by federal officials wielding Federal Highway Administration funds as a club. National organizations representing governors, and state legislators have all protested federal funding penalties over what they consider local issues.

"It's not that we support drunk driving. But drunk driving is a state issue. By tying it to funding it has the effect of creating a national mandatory standard," said Jeanne Mejeur of the National Conference of State Legislatures ( NCSL )."Naturally the state would rather make the decisions on how the money is going to be spent and we'd prefer to keep it in construction," said New Mexico transportation programs director Chip Fenner.

Since passage of the Transportation Equity Act for the 21st Century ( TEA-21 ) two years ago, 16 states revamped their open container laws and 19 states changed their repeat offender laws to meet the new standards, according to NHTSA. But NHTSA has also rejected many other state laws. Among those that didn't make the cut are Texas' penalties for repeat offenders.

Cross said that by some measures, the Texas statute is "a little stiffer than what the federal government is calling for." For example, while federal regulations spell out a minimum 5-day prison sentence or 30 days of community service for a second offense, Texas judges have no community service option. But Texas law allows a fine of up to $4,000, up to one year in jail or a two-year license suspension, all of which exceed federal requirements.

NHTSA rewarded 17 states Alabama, California, Florida, Hawaii, Idaho, Illinois, Kansas, Maine, New Hampshire, New Mexico, North Carolina, Oregon, Texas, Utah, Vermont, Virginia and Washington and the District of Columbia with $69.7 million for lowering the legal blood alcohol level for motorists from .10 to .08.

Texas' $11.5 million bonus, which it received by virtue of the .08 law it passed in 1999, was second only to California's $16.4 million. New Mexico and Virginia will get $1.4 million and $3.8 million respectively.

But pending federal legislation sponsored by departing New Jersey Sen. Frank Lautenberg (D) and supported by Transportation Secretary Rodney Slater would drop the incentive in favor of a five percent highway funding cut for states that do not jump on the .08 wagon.

Mothers Against Drunk Driving ( MADD ), the prominent-Dallas based advocacy group, estimates that a uniform .08 law covering the fifty states could save as many as 500 lives every year and a NHTSA study released Sept. 19 concluded that "crucial driving skills are seriously impaired" above that blood alcohol limit.

"Every state should have a .08 law to help get unsafe drivers off the road," Slater said in an August news release.

State and local groups, along with the liquor and restaurant industries, are again teaming up to oppose the new mandate. "We prefer incentives to sanctions in nearly every instance where state-federal relations are concerned," said Gavin.

NCSL's Mejeur says that many state lawmakers view the .08 standard as "still somewhat controversial."

A database outlining major state drunk driving initiatives, co-sponsored by NCSL and NHTSA may be found at www.nhtsa.dot.gov/ncsl/ .