Section 164: Repeat Offender Provision

The repeat offender provision was initially authorized under the Transportation Equity Act of the 21st Century (TEA-21) and reauthorized under several subsequent surface transportation bills, most recently the Infrastructure Investment and Jobs Act (IIJA). This provision is jointly administered by the National Highway Traffic Safety AdministrationNational Highway Traffic Safety Administration (NHTSA) and the Federal Highway Administration (FHWA).

This provision encourages states to enact a repeat offender law.

This provision requires states to enact and enforce a law that provides specific minimum penalties to individuals convicted of a second or subsequent impaired driving offence. States that fail to comply with these minimum requirements have a portion of their highway funds reserved. Offenders are required to: 

• Receive for a period of not less than one year, one or more of the following penalties:
  • A suspension of all driving privileges,
  • A restriction of driving privileges that limits the individual to operating only motor vehicles with an ignition interlock device installed, unless a special exception of the section applies, or,
  • 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.
• Receive an assessment of their degree of alcohol abuse, and treatment as appropriate, and,
• Except as provided in section 1275.5, receive a mandatory sentence of:
  • Not less than five days of imprisonment or 30 days of community service for a second offense, and
  • Not less than ten days of imprisonment or 60 days of community service for a third of subsequent offense.

NHTSA and FHWA jointly published a Final Rule in February, 2019 governing Section 154 and 164 to implement the changes made to this program by the FAST Act.

A noncompliant state may elect to use all or a portion of the reserved funds for alcohol-impaired driving programs as restricted to the Section 402 programand for highway safety improvement program activities under Section 148 activities to the state Department of Transportation.

In Fiscal Year 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 reserved in the subsequent fiscal year.