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2001 North Carolina Attorney General Reports and Opinions 1 (2001)

handle is hein.sag/sagnc0038 and id is 1 raw text is: Telephone: (919) 716-6900 Fax: (919) 716-6763 January 2, 2001 Honorable President Pro Tempore of the Senate Marc Basnight Honorable Speaker of the House of Representatives James Black 16 West Jones Street Raleigh, North Carolina 27601-1096 Re: Advisory Opinion; Congress' Power to Require States to Enact Open Container Restrictions; 23 U.S.C. § 154; S.L. 2000-155 Dear Senator Basnight and Speaker Black: In the 1999 Session of the General Assembly, House Bill 1499 was enacted as Session Law 2000-155 to implement the recommendations of the Governor's DWI Task Force, to provide for a challenge to the transfer of federal funds, and to clarify the effective date for commercial motor vehicle insurance provisions of Session Law 330 of the 1999 General Assembly. Section 19 of this act requested the Attorney General to initiate litigation to challenge the constitutionality of the federal government's intrusion into the State's authority to enact and enforce its own laws regarding motor vehicles and traffic safety, particularly Section 154 of Title 23 of the United States Code. This request is being interpreted initially as a request for our opinion on the constitutionality of the open container requirements in 23 U.S.C § 154, and hence the likelihood of a successful challenge to that provision in court. In 1998, Congress enacted Section 1405 of the Transportation Equity Act for the 21 Century and amended Title 23 of the United States Code by adding a new Section 154. The new section provides for the transfer of a percentage of a State's allocation of federal highway construction funds to State and local law enforcement agencies for the enforcement of drunk driving laws or to fund alcohol-impaired driving countermeasures if a State has not enacted or is not enforcing a conforming open container law. To avoid the transfer of funds, a State must enact and enforce a law that prohibits the possession of any open alcoholic beverage container, or the consumption of any alcoholic beverage, in the passenger area of any motor vehicle (including possession or consumption by the driver of the vehicle) located on a public highway, or the right-of-way of a public highway, in the State. 23 U.S.C. § 154(b)(1). Failure to enact or enforce a conforming law would result in a 1.5% transfer of funds in fiscal years 2001 and 2002; for fiscal year 2003 and thereafter the transfer would be 3% of the funds. Effective September 1, 2000, the General Assembly conformed the State's existing open container law, N.C. GEN STAT. § 20-138.7, to the federal requirements. The open container requirements are an exercise of Congress' power under the Federal Constitution's spending clause. (Art. 1, 8, cl 1). Whether this is a valid exercise of the spending

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