Staples: Another Small Step in America's Battle Against Drunk Driving

STAPLES - FINAL (DO NOT DELETE)
2/1/2012 3:29 PM
Another Small Step in Americas Battle

Against Drunk Driving: How the
Spending Clause Can Provide More
Uniform Sentences for Drunk-Driving
Fatalities
AMANDA STAPLES
ABSTRACT
Thousands of Americans are victims of drunk-driving accidents every

year. In 2008 and 2009 alone, drunk driving claimed the lives of 22,550
Americans. That is almost three times the number of U.S. and coalition
forces that have died in Iraq and Afghanistan between March 2003 and July
2011. That is 22,550 people, and even more families, whose lives will never
be the same, and they have suffered because certain individuals made the
reckless decision to drink and drive. Every day drunk drivers are waging a
battle on U.S. roadwaysa battle that too many innocent people are losing.
In the last thirty years Congresss greatest weapon against drunk
driving has been the Spending Clause, which allows the federal
government to encourage states to enact tough drunk-driving legislation
by conditioning the receipt of federal highway funds on the adoption of
such legislation. Currently no two state statutes punish vehicular homicide
while driving under the influence in the same way. This Note argues that
Congress should adopt federal sentencing guidelines addressing drunkdriving fatalities and use its spending power to encourage uniform state
adoption of these guidelines. Such an approach would provide a better
deterrent for offenders and a greater feeling of justice for victims.
Candidate for Juris Doctor, New England Law | Boston (2012). B.A., History, Boston
University (2007). I dedicate this Note to my brother, Jeremy P. Staples, who was my
inspiration in writing this Note and going to law school. I would like to thank my mother for
instilling in me an amazing work ethic and for always believing in me. I would like to thank
my family and friends for their love and support. Finally, I would like to thank my colleagues
on the New England Law Review for their dedication throughout the writing and editing
process.
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INTRODUCTION
n June 17, 2010, Massachusetts State Police Sergeant Doug

Weddleton left his home in Brockton to work an overnight
construction detail in Mansfield on Route 95 North. 1 At
approximately 1:30 a.m., he exited his patrol car to approach the vehicle of
an alleged drunk driver.2 As he stood beside the vehicle, a pickup truck
crashed into it and caused the vehicle to strike Sergeant Weddleton. 3
Sergeant Weddleton was dragged to his death, leaving behind a wife and
four children.4 The pickup truck driver was suspected of being drunk
behind the wheel and failed a field sobriety test performed shortly after the
accident.5 Sergeant Weddleton was laid to rest on June 23, 2010 and given
what could only be described by the Massachusetts State Police
spokesperson as a heros sendoff.6
Like Sergeant Weddleton, thousands of Americans become the victims
of drunk-driving accidents every year. 7 In 2008 and 2009 alone, drunk
driving claimed the lives of 22,550 Americans.8 That is almost three times
the amount of U.S. and coalition forces that have died in Iraq and
Afghanistan between March 2003 and July 2011.9 From these numbers, it is
clear that drunk drivers are waging a battle on the roadways of the United
Statesa battle that too many Americans are losing.10
1 Amanda Reed, State Police Sgt. Doug Weddleton: Devoted to His Job, His Family, ENTERPRISE
(Brockton), June 19, 2010, at 1; Milton J. Valencia et al., Weddleton 'Touched Our Lives, Family
Friend Says of Slain State Police Sergeant, BOSTON.COM (July 21, 2010), http://www.boston.com/
news/local/breaking_news/2010/06/alleged_drunk_d_1.html.
2 Troopers Death Suspects Stopped 14 Times for Speeding, THEBOSTONCHANNEL.COM (June 19,
2010), http://www.thebostonchannel.com/news/23943705/detail.html; Valencia, et al., supra
note 1.
3
Valencia et al., supra note 1.

Id.
5 Troopers Death Suspects Stopped 14 Times for Speeding, supra note 2.
6 Valencia, et al., supra note 1; see also WPRI, Funeral Held for State Trooper Doug Weddleton,
YOUTUBE (June 23, 2010), http://www.youtube.com/watch?v=9S30oskGBCA&feature=fvw
(WPRI television broadcast June 23, 2010).
4
NATL HIGHWAY TRAFFIC SAFETY ADMIN., HIGHLIGHTS OF 2009 MOTOR VEHICLE CRASHES 2
tbl.3 (2010), available at http://www-nrd.nhtsa.dot.gov/Pubs/811363.pdf; see generally HCADW,
Deadly Decisions: Tribute to Drunk Driving Victims, YOUTUBE (Nov. 12, 2007),
http://www.youtube.com/watch?v=DO0m5d5hnwA.
8
NATL HIGHWAY TRAFFIC SAFETY ADMIN., supra note 7.

See Home and Away: Iraq and Afghanistan Casualties, CNN, http://www.cnn.com/
SPECIALS/war.casualties/index.html?country=iraq (last visited Jan. 31, 2012) (mapping the
deaths of 7381 soldiers who died serving their countries in Iraq and Afghanistan between
March 2003 and July 2011).
9
10
See Tina Wescott Cafaro, You Drink, You Drive, You Lose: Or Do You?, 42 GONZ. L. REV. 1,
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Americas Battle Against Drunk Driving
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To aid in the battle against drunk driving, states as well as the federal
government have developed campaigns designed to reduce the number of
drunk-driving fatalities.11 In the last thirty years, the U.S. Governments
greatest weapon against drunk driving has been the Spending Clause of
the U.S. Constitution, which allows the federal government to encourage
state adoption of tough drunk-driving regulations by attaching federal
highway funds to the legislation.12 Use of the Spending Clause has been
successful in establishing uniformity,13 and more importantly the U.S.
Supreme Court upheld it as constitutional.14 To date, congressional efforts
have led to a promising decrease in drunk-driving deaths since their alltime high in the 1980s,15 but the battle is not over.16
This Note argues that sentencing guidelines addressing drunk-driving
fatalities should be adopted on the federal level and that Congress should
use its spending power to encourage uniform state adoption of the
guidelines. This argument is supported by a continuously high number of
drunk-driving fatalities every year17 and the fact that many of those drunk
drivers serve minimal time in comparison to the devastation they have
2 (2006) (describing drunk driving as a widespread crime with no demographical boundaries);

Michael J. Watson, Note, Carnage on Our Nations Highways: A Proposal for Applying the
Statutory Scheme of Megans Law to Drunk-Driving Legislation, 39 RUTGERS L.J. 459, 460 (2008)
(classifying drunk driving as an epidemic taking lives across the country).
11 See, e.g., Cops Begin Annual Campaign Against Drunk Driving, MONTCLAIR TIMES (N.J.),
Dec. 10, 2010, http://www.northjersey.com/news/111672709_Cops_begin_annual_campaign_
against_drunk_driving.html; Press Release, Natl Highway Traffic Safety Admin., NHTSA
Urges Increased Use of Ignition Interlocks for Repeat Drunk Driving Offenders (Aug. 22,
2007), available at http://www.nhtsa.gov/About+NHTSA/Press+Releases/ 2007/NHTSA+Urges+
Increased+Use+of+Ignition+Interlocks+for+Repeat+Drunk+Driving+Offenders;
see
also
MBOYER64, Feds Plan More Drunk Driving Checkpoints, YOUTUBE (Dec. 13, 2010),
http://www.youtube.com/watch?v=RGq8GL5Sda0 (NBC television broadcast Dec. 13, 2010).
12 U.S. CONST. art. I, 8, cl. 1; see, e.g., National Minimum Drinking Age Act, 23 U.S.C.
158(a)-(b) (2006); 23 U.S.C. 163(a), (c) (encouraging states to adopt .08 Blood Alcohol
Concentration (BAC) as the standard for determining whether someone is driving while
intoxicated).
13 See Press Release, Judith Lee Stone, Advocates for Highway and Auto Safety, Advocates
Congratulates the Delaware Legislature on Becoming 50th State to Pass .08% BAC Law (July 1,
2004), available at http://www.saferoads.org/advocates-congratulates-delaware-legislaturebecoming-50th-state-pass-08-bac-law.
14
See, e.g., South Dakota v. Dole, 483 U.S. 203, 211 (1987).
See NATL HIGHWAY TRAFFIC SAFETY ADMIN., INITIATIVE TO ADDRESS IMPAIRED DRIVING 7
fig.3 (2003), available at http://www.nhtsa.gov/people/injury/alcohol/IPTReport/
FinalAlcoholIPT-03.pdf.
16 See Watson, supra note 10, at 503-25 (arguing there are still significant improvements
needed in the area of drunk-driving legislation).
15
17
See NATL HIGHWAY TRAFFIC SAFETY ADMIN., supra note 7.
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caused.18 Further, there is an illogical disparity among the states treatment

of these offenders, with some states adopting a tough stance 19 and others a
more lenient approach.20
Part I of this Note provides an overview of the Spending Clause and
how it has been used to combat drunk driving. Part II analyzes current
state vehicular-homicide statutes and the differences among the sentencing
structures for offenders who cause drunk-driving fatalities. Part II also
advocates for Congress to use its Spending Clause powers to provide
greater uniformity. Part III provides a sentencing proposal that Congress
could employ to help create greater accountability and deterrence amongst
drunk drivers. Finally, Part IV explains why this sentencing proposal is
necessary to help solve this national problem.
I.
Spending Power
A. The Spending Clause
1.
History
Congresss power to spend for the general welfare of the nation comes
from the U.S. Constitution.21 It states that Congress shall have Power To
lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United
States . . . .22 In modern times, Alexander Hamiltons reading of the
Spending Clause has come to be accepted as the correct interpretation of
the provision.23 Hamiltons interpretation recognizes that Congress
18 See, e.g., Toni Monkovic, MADD Doesnt Want Dont Stallworths Money, N.Y. TIMES
N.F.L. BLOG (June 17, 2009), http://fifthdown.blogs.nytimes.com/2009/06/17/madd-doesntwant-donte-stallworths-money/ (noting thirty-day jail sentence for NFL player who pled
guilty to DUI manslaughter).
19 See, e.g., People v. Brown, 519 N.W.2d 843, 844 (Mich. 1994) (upholding sentence of eight
to twenty years for convictions based on two drunk-driving fatalities); R.I. GEN. LAWS 31-272.2 (2010).
20 See, e.g., MASS. GEN. LAWS ch. 90, 24G(b) (2010) (prescribing a sentence of not less than
thirty days nor more than two and one-half years, or by a fine of not less than three hundred
nor more than three thousand dollars, or both).
21
U.S. CONST. art. I, 8, cl. 1.

Id.
23 See United States v. Butler, 297 U.S. 1, 66 (1936); Richard W. Garnett, The New Federalism,
the Spending Power, and Federal Criminal Law, 89 CORNELL L. REV. 1, 25-26 (2003); Terry Jean
Seligmann, Muddy Waters: The Supreme Court and the Clear Statement Rule for Spending Clause
Legislation, 84 TUL. L. REV. 1067, 1072 (2010). The other interpretation of the Spending Clause
was formulated by James Madison, who believed the Spending Clause was limited to enacting
the enumerated powers of Article I, such as establishing post offices and funding wars. See
U.S. CONST. art. I, 8; David E. Engdahl, The Spending Power, 44 DUKE L.J. 1, 32 (1994);
22
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possesses the power to spend for matters that the Constitution does not
specifically delegate to the federal government because the ends promoted
by the spending are immaterial.24 This understanding has led to strong U.S.
Supreme Court precedent upholding the use of federal dollars to promote
various policies amongst and within the states. 25
Since the 1930s, the Supreme Court has maintained that the Spending
Clause gives Congress the power to further broad policy objectives by
conditioning receipt of federal moneys upon compliance by the recipient
with federal statutory and administrative directives.26 During this eightyyear period, the spending power was used to encourage a variety of
congressional policies, including a nationwide minimum drinking age, 27
old-age benefits,28 a nationwide speed limit,29 and a uniform child support
collection structure.30 Congresss ability to encourage state action appears
unlimited,31 but the fact that Congress may only encourage is a limitation
unto itself.32
The Spending Clause does not give the federal government the ability
to compel the states into submission.33 The Spending Clause does not
compel the states to do anything; it is only a method of encouragement
used by Congress to improve the general welfare of the nation. 34 When
Congress chooses to invoke the Spending Clause, the states still remain free
to resist this financial temptation and continue to legislate as they see fit. 35
Seligmann, supra.
24
Engdahl, supra note 23, at 41, 46-48.

See, e.g., South Dakota v. Dole, 483 U.S. 203, 211-12 (1987); Helvering v. Davis, 301 U.S.
619, 640-42 (1937); Steward Mach. Co. v. Davis, 301 U.S. 548, 588-90 (1937).
25
26 Dole, 483 U.S. at 206 (quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (plurality
opinion)); see also Lau v. Nichols, 414 U.S. 563, 569 (1974); Oklahoma v. U.S. Civil Serv.
Commn, 330 U.S. 127, 143-44 (1947); Steward Mach. Co., 301 U.S. at 595.
27
See Dole, 483 U.S. at 211-12.

See Helvering, 301 U.S. at 640-44.
29 See Nevada v. Skinner, 884 F.2d 445, 447-49 (9th Cir. 1989).
30 See Kansas v. United States, 24 F. Supp. 2d 1192, 1195-97 (D. Kan. 1998).
31 See United States v. Butler, 297 U.S. 1, 66 (1936) (*T+he power of Congress to authorize
expenditure of public moneys for public purposes is not limited by the direct grants of
legislative power found in the Constitution.).
32 See Engdahl, supra note 23, at 20-21 (explaining that refusing financial incentives is
always a method for the state to frustrate any extraneous objective of federal spending).
28
33 See South Dakota v. Dole, 483 U.S. 203, 211 (1987) (*I+n some circumstances the financial
inducement offered by Congress might be so coercive as to pass the point at which pressure
turns into compulsion.).
34 See Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911, 1929
(1995).
35
See id.; Engdahl, supra note 23, at 21.
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Congresss power is just an offer, and it is only enforceable if the state

accepts the terms and the funding. 36 However, much like contract law, once
the state accepts funding, compliance with the terms is mandatory. 37
The Spending Clause is analogous to contract law between two private
parties in many ways.38 First, there are at least two parties involved when
Congress elects to use the Spending Clause.39 Second, the federal
government, the offeror, makes the initial offer spelling out a clear
statement of its terms and the funds to be allocated upon acceptance. 40
Finally, the state, the offeree, is free to reject or accept such terms, but upon
its acceptance, the terms become binding.41 As a result of this analogous
relationship, the Court has met the Spending Clause with increasing
approval over the twentieth century, providing a constitutional means to
achieve Congresss broad policy objectives.42
2.
The Supreme Courts Approval of Using the Spending

Clause to Deter Drunk Driving
In 1987, the U.S. Supreme Court heard arguments from the State of
South Dakota on the constitutionality of the National Minimum Drinking
Age Act.43 South Dakota focused its arguments on the scope of the Twentyfirst Amendment, claiming that the minimum drinking age was a subject
unequivocally reserved to the states. 44 The Court upheld the National
Minimum Drinking Age Act as constitutional, rejecting South Dakotas
Twenty-first Amendment argument.45 It chose instead to analyze this
statute under the Spending Clause, producing the modern precedent for
Spending Clause cases.46
36 See Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 DUKE L.J. 345,
391 (2008).
37
See U.S. Dept of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605 (1986); Consol.
Rail Corp. v. Darrone, 465 U.S. 624, 633 n.13 (1984); Grove City Coll. v. Bell, 465 U.S. 555, 575
(1984); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
38 See generally David E. Engdahl, The Contract Thesis of the Federal Spending Power, 52 S.D. L.
REV. 496, 496 (2007) (discussing the inherent similarities between the spending power and
contract law).
39
See id. at 502.

Seligmann, supra note 23, at 1077.
41 See Massachusetts v. Mellon, 262 U.S. 447, 480 (1923).
42 See, e.g., South Dakota v. Dole, 483 U.S. 203, 206-12 (1987); Pennhurst State Sch. & Hosp.,
451 U.S. at 17; Helvering v. Davis, 301 U.S. 619, 640-41 (1937); Mellon, 262 U.S. at 480.
43 Dole, 483 U.S. at 205.
44 Id.
45 Id. at 206.
46 Id. at 206-12; David Freeman Engstrom, Drawing Lines Between Chevron and Pennhurst:
A Functional Analysis of the Spending Power, Federalism, and the Administrative State, 82 TEX. L.
40
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Many of the limitations on Congresss use of the Spending Clause were

articulated by the Court in South Dakota v. Dole.47 First, the exercise of the
spending power must be made in the pursuit of the general welfare.48 To
determine what constitutes spending for the general welfare, the Court
should defer substantially to the judgment of Congress.49 In Dole, the
Court upheld Congresss determination that the states varying minimum
drinking ages created incentives for young people to combine their
drinking habits with their driving habits. 50 Subsequently, the Court went
on to determine that this problem required a national solution of raising
the drinking age to twenty-one to ensure safer highways.51
Second, if Congress plans to condition the receipt of federal funds, its
conditions must be clearly and fully disclosed.52 This limitation allows
states to exercise their choice knowingly, cognizant of the consequences of
their participation.53 In Dole, the Court held that the conditions of the
funds described in the National Minimum Drinking Age Act were clearly
stated by Congress.54 Section 158 states that the Secretary of Transportation
is authorized to withhold a specified percentage of highway funds, to
which the state would be otherwise eligible, if the state permits the
purchase or possession of alcohol by an individual less than twenty-one
years of age.55 The language in this statute unambiguously conveys the
funding conditions to the states and allows them to make a fully informed
decision.56
The third limitation is known as the nexus requirement.57 Under the
nexus requirement, conditions on federal grants might be illegitimate if
they are unrelated to the federal interest in particular national projects or
programs.58 In Dole, the Court found that Congresss interest in ensuring
REV. 1197, 1208 n.35 (2004).

47 483 U.S. at 207-08.
48 Id. at 207. In the past, the Court has questioned whether general welfare is a judicially
enforceable restriction. Id. at 207 n.2 (citing Buckley v. Valeo, 424 U.S. 1, 90-91 (1976) (per
curiam)).
49
Id. at 207.
Id. at 208.
51 Id. at 208-09.
52 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981); see, e.g., National
Minimum Drinking Age Act, 23 U.S.C. 158 (2006); see also Seligmann, supra note 23, at 1077.
53 Pennhurst State Sch. & Hosp., 451 U.S. at 17.
54 483 U.S. at 208.
55 23 U.S.C. 158(a)(1).
56 Id.
57 See Bagenstos, supra note 36, at 363-64.
58 Dole, 483 U.S. at 207-08 (internal quotation marks omitted); see also Massachusetts v.
United States, 435 U.S. 444, 461 (1978) (plurality opinion); Ivanhoe Irrigation Dist. v.
50
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safe interstate travel by means of safe national highways was reasonably

related to its encouragement of a nationwide drinking age. 59 All that must
be found is that the meansestablishing a minimum drinking ageare not
wholly unrelated to the ends, ensuring safe highways.60 Following this
decision, the Court has yet to define the outer limits of the nexus
requirement.61
The fourth limitation requires the Court to look to the Constitution to
determine if its other provisions provide an independent bar to the
conditional grant of federal funds.62 In Dole, South Dakota argued that the
Twenty-first Amendment constituted an independent constitutional bar to
the conditional grant of federal funds.63 However, the Court held that the
Twenty-first Amendment was not a bar because certain constitutional
limitations are far less rigorous when Congress acts indirectly through the
Spending Clause, as opposed to issuing a direct regulation on behalf of the
federal government.64 The Court declared that the Tenth Amendment65 was
not a bar to Congresss conditional spending, as the state is free to reject the
conditions of the grant and continue to legislate as it sees fit.66 In sum, the
McCracken, 357 U.S. 275, 295 (1958).

59
Dole, 483 U.S. at 208-09.

See Bagenstos, supra note 36, at 365-67 & n.101 (noting the hesitation of conservative
judges to require a tight means-ends fit).
60
61 See id. Scholars also argue that the current conservative Court is unlikely to do so
because it will require the Court to make policy judgments that are better suited for Congress.
Id.
62 Dole, 483 U.S. at 208; Lawrence Cnty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S.
256, 269-70 (1985); Buckley v. Valeo, 424 U.S. 1, 91, 96 (1976) (per curiam); King v. Smith, 392
U.S. 309, 333 n.34 (1968).
63 Dole, 483 U.S. at 209.
64 Id. The Eighteenth Amendment, which established prohibition in 1917, was repealed by
the Twenty-first Amendment. U.S. CONST. amend. XVIII, repealed by U.S. CONST. amend. XXI.
Prohibition prevented the sale, manufacture, and transportation of alcohol. Id.
65 U.S. CONST. amend. X (The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.). The Tenth Amendment often serves as the federal-state frontier, where states
rights proponents argue that the federal governments sovereignty ends and the states
sovereignty begins. See Calvin R. Massey, State Sovereignty and the Tenth and Eleventh
Amendments, 56 U. CHI. L. REV. 61, 74-75 (1989).
66
Dole, 483 U.S. at 210; see also Oklahoma v. Civil Serv. Commn, 330 U.S. 127, 143 (1947)
(noting that the Tenth Amendment does not forbid Congress from conditioning money
dispersals to the states); Steward Mach. Co. v. Davis, 301 U.S. 548, 595 (1937) (indicating that
the states have the choice to follow or disregard the conditions placed on the receipt of federal
funds); Massachusetts v. Mellon, 262 U.S. 447, 480 (1923) (stating that the states powers are
not infringed when they are given an option to accept or reject funds to which certain
conditions attach).
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true focus of the constitutional limitation is preventing Congress from

using the Spending Clause to encourage states to behave
unconstitutionally.67
The final limitation deals with the notion of coercion. 68 It occurs when
the level of financial inducement offered by Congress might be so coercive
as to pass the point at which pressure turns into compulsion.69 The Court
must be careful not to hold every temptation as the equivalent of coercion;
instead, it must recognize when choice no longer exists and act only to
prevent unduly burdensome action by Congress. 70 In Dole, the Court found
the 5% reduction in highway funds to be the equivalent of mild
encouragement, not coercion.71 Since Dole, many lower courts have
consistently failed to find impermissible coercion, even when a state
argues that the financial incentives have created almost a complete lack of
choice.72
3.
Criticism of Dole
Critics of recent Spending Clause precedent argue that these

restrictions fail to provide any real consequences for congressional
spending.73 They argue that general welfare is not a judicially
manageable standard and that any attempt to declare a congressional
policy not in pursuit of the general welfare would lead to allegations of
Lochner-ism74 by the Court.75 Further critique has been focused on the nexus
67
See Dole, 483 U.S. at 210-11 (*A+ grant of federal funds conditioned on invidiously
discriminatory state action or the infliction of cruel and unusual punishment would be an
illegitimate exercise of the Congress broad spending power.). Arguably, the Bill of Rights is
the only true constitutional bar to Congresss exercise of the spending power. See Engdahl,
supra note 23, at 16.
68 Dole, 483 U.S. at 211; Steward Mach. Co., 301 U.S. at 590.
69 Dole, 483 U.S. at 211 (citation omitted) (internal quotation marks omitted).
70 See id.
71 Id.
72 Bagenstos, supra note 36, at 372; see also Nevada v. Skinner, 884 F.2d 445, 447-49 (9th Cir.
1989) (withholding 95% of federal highway funds does not amount to coercion); Kansas v.
United States, 24 F. Supp. 2d 1192, 1198-99 (D. Kan. 1998) (declining to evaluate whether states
had no choice or merely a hard choice). But see United States v. Sabri, 183 F. Supp. 2d 1145,
1156 (D. Minn. 2002) (withholding 99.97% of federal funds from the City of Minneapolis
amounted to impermissible coercion under Dole).
73 E.g., Bagenstos, supra note 36, at 355 (*N+either the general welfare, nexus, nor coercion
limitations impose any analytically tractable limitation on congressional power.); Lynn A.
Baker & Mitchell N. Berman, Getting Off the Dole: Why the Court Should Abandon Its Spending
Doctrine, and How a Too-Clever Congress Could Provoke It to Do So, 78 IND. L.J. 459, 464-68 (2003).
74
See generally Lochner v. New York, 198 U.S. 45 (1905). In *the Lochner] period, the
Supreme Court invalidated a wide range of regulatory measures, frequently by invoking
libertarian conceptions of private rights. The Lochner period is frequently understood as a
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requirement, where critics desire greater scrutiny to provide a tighter

means-ends fit.76
B. Congresss Use of the Spending Clause to Curb Drunk Driving
In response to the increasing threat of drunk driving, the federal
government began a Get Tough Campaign in the 1980s designed to help
reduce incidences of drunk driving.77 The first step was the Presidential
Commission on Drunk Driving, created by President Ronald Reagan in
1982.78 The Commissions mission was to raise public awareness about the
nations drunk-driving problem; to persuade states to attack the drunkdriving problem in a more unified manner; to encourage state officials to
use the latest techniques to solve the problem; and to generate public
support for better enforcement of drunk-driving laws.79
1.
National Minimum Drinking Age Act
Soon after the Commission was formed, it began recommending the

first solution to the nations problema nationwide minimum drinking
age.80 The Commission proposed uniformly raising the drinking age to
twenty-one to help combat the blood bordersborders between states
with differing drinking agesthat had been created between certain
states.81 In addition to these blood borders, there was significant evidence
of teens being involved in alcohol-related highway fatalities.82 Based on
lesson in institutional role, revealing the risks of an aggressive judicial function in overseeing
the political process. Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1579
(1988).
75 Bagenstos, supra note 36, at 357-59; see Buckley v. Valeo, 424 U.S. 1, 90-91 (1976) (per
curiam); Mark A. Graber, Does it Really Matter? Conservative Courts in a Conservative Era, 75
FORDHAM L. REV. 675, 685 (2006).
76 See, e.g., Dole, 483 U.S. at 214-18 (OConnor, J., dissenting) (arguing that 158 is overinclusive because it stops teenagers from drinking even when they are not driving and
contending that it is under-inclusive because teenagers are only a small percentage of drunk
drivers).
77 See ALAN A. CAVIOLA & CHARLES WUTH, ASSESSMENT AND TREATMENT OF THE DWI
OFFENDER 1 (2002).
78 Exec. Order No. 12,358, 47 Fed. Reg. 16,311 (Apr. 16, 1982).
79 Id.
80 H.R. REP. NO. 98-606, at 2-3 (1984).
81 Id. at 3. In 1982 a newspaper in Illinois published a special edition entitled Blood
Border, describing the carnage on the Illinois-Wisconsin border due to what it called the lure
of Wisconsins lower drinking age. Id. The newspaper described how many young people
would drive across the Illinois-Wisconsin border at night to drink and then drive back later
that night in an intoxicated condition. Id.
82
Id. (noting that, at the time, approximately 5000 of the 25,000 annual alcohol-related
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this evidence, Congress took the Committees recommendations and

proposed legislation that would encourage the states to adopt a minimum
drinking age of twenty-one by attaching the receipt of federal highway
funds to the legislation.83
This statute declares that the Secretary of Transportation shall
withhold a certain percentage84 of federal highway funds from any state in
which the purchase or public possession . . . of any alcoholic beverage by
a person who is less than twenty-one years of age is lawful.85 The states
were given a three-year window during which time they could still regain
the funds they had lost if they were in compliance with the federal
regulation by the closing date of September 30, 1988.86 The 5% loss of funds
coupled with the lack of direct enforcement by the federal government led
the Court to uphold this action as a constitutional use of Congresss
spending power.87
2.
Intoxication, Per Se
In 2000, Congress debated another proposed solution to the drunkdriving problem.88 Senator Michael DeWine of Ohio proposed a piece of
legislation that would use federal money to encourage the states to adopt a
.08 BAC level as the per se standard for drunk driving. 89 In his speech
before the Senate, he reminded his fellow senators that this was not the
first time this proposal had come before them and that in 1998 sixty-two
senators voted in favor of a uniform .08 law. 90 Despite the overwhelming
support, the measure was dropped in conference and replaced with an
incentive grant program that proved ineffective. 91 Senator DeWine
admitted this new measure would not completely solve the problem of
drunk driving, but it would save between 500 to 600 lives annually.92 The
highway fatalities involved individuals between the ages of sixteen and twenty-one).
83
See National Minimum Drinking Age Act, 23 U.S.C. 158 (2006).

The present amount to be withheld is 10%. Id. at (a)(1). The original amount to be
withheld was 5%. See, e.g., South Dakota v. Dole, 483 U.S. 203, 211 (1987).
85 158(a)(1).
86 Id. at (b).
87 Dole, 483 U.S. at 211-12.
88 146 CONG. REC. 13,947 (2000) (statement of Sen. DeWine).
89 Id.
90 Id.
91 Id. at 13,947-48 (acknowledging that the incentive grant measure had only been used by
Texas since it was implemented in 1998).
84
92 Id. at 13,947; see also NATL HIGHWAY TRAFFIC SAFETY ADMIN., TRAFFIC SAFETY FACTS: .08
BAC ILLEGAL PER SE LEVEL 1-3 (2004), available at http://www.nhtsa.gov/people/injury/newfact-sheet03/fact-sheets04/Laws-08BAC.pdf (discussing the benefits of implementing the .08
BAC as a per se standard for drunk driving).
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Senator mentioned several studies that found that a person with .08 BAC
level is severely impaired behind the wheel.93 These studies showed that
drunk drivers suffer from poor vision, balance, and reaction time, all of
which are needed to correctly handle the critical driving tasks of speed
control, stopping, and steering.94 Further, Senator DeWine, using the same
rationale behind the nationwide minimum drinking age, argued that it
made no sense for states to have differing BAC levels because it essentially
made a driver drunk in one state but sober just upon crossing the border. 95
This nonsensical reality was the driving force behind Congresss
monumental legislation in 2000 to implement a nationwide BAC level of
.08.96 The statute declares that the Secretary shall withhold a percentage of
federal highway funds from any state that fails to enact or enforce the .08
BAC as a per se standard for drunk driving. 97 The states were once again
given time to comply, as the funds would not be withheld until 2004.98
Additionally, if a state enacted a provision between 2004 and 2007, it
would be able to receive the funds that had been withheld in prior years. 99
However, at the end of the four-year period, withheld funds would cease
to be returned to any state that had not enacted or was not enforcing a law
requiring .08 BAC as the per se standard for drunk driving.100
Since 2005, all fifty states have imposed a .08 BAC as the per se
standard for drunk driving. 101 After this legislation was implemented,
drunk-driving fatalities fell nationwide from 16,885 in 2005 102 to 10,839 in
2009.103 While the decrease has been significant, there are many more steps
that should be taken to reduce drunk-driving fatalities.104
93
146 CONG. REC. 13,948 (statement of Sen. DeWine).

Id.
95 Id.
96 23 U.S.C. 163 (2006); Terence Hunt, Clinton Signs .08 Drunk Driving Standard,
ABCNEWS (Oct. 23, 2000), http://abcnews.go.com/US/story?id=95275&page=1.
94
97
163(e)(1).
Id. (e)(2)(A).
99 Id. (e)(3).
100 Id.
101
Sanctions Are Effective, SAFEROADS4TEENS.ORG, http://www.saferoads4teens.org/
sanctions-are-effective (last visited Jan. 31, 2012).
98
102 NATL HIGHWAY TRAFFIC SAFETY ADMIN., MOTOR VEHICLE TRAFFIC CRASH FATALITY
COUNTS AND ESTIMATES OF PEOPLE INJURED FOR 2005, at 19 (2006), available at http://wwwnrd.nhtsa.dot.gov/pubs/810639.pdf.
103

See, e.g., Cafaro, supra note 10, at 18-28; Ed Gebert, Senator Brown Throws Support Behind
ROADS SAFE Act, TIMES BULLETIN (Van Wert, Ohio), Feb. 10, 2011, http://www.times
bulletin.com/main.asp?SectionID=2&SubSectionID=4&ArticleID=164360; MBOYER64, supra
note 11.
104
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ANALYSIS
II. Using Federal Dollars in the Next Battle Against Drunk-Driving
Fatalities
A. Current Disconnect in Drunk-Driving Legislation
Currently in the United States, no two states possess the same
sentencing provision for the crime of vehicular homicide while under the
influence of alcohol.105 Recent case law shows states are lacking uniformity
in their sentencing measures for drunk drivers. 106 This lack of uniformity in
facing a national problem leads to variation in the types of convictions and
punishments that drunk drivers face.107
1.
Easy States
The easy approach does not allow defendants to be sentenced to more

than five years in prison for the crime of vehicular homicide while under
the influence.108 For example, in Delaware, one of the current statutes
provides: A person is guilty of vehicular homicide in the first degree
when while in the course of driving or operating a motor vehicle under the
influence of alcohol . . . the persons criminally negligent driving or
operation of said vehicle causes the death of another person.109 In
Delaware, vehicular homicide is a Class E felony, requiring a minimum
sentence of two years and a maximum of five years. 110 Delaware is not
alone in its lenient approach; in fact, several states have similarly weak
105 MADD, PENALTIES FOR DRUNK DRIVING VEHICULAR HOMICIDE 1 (2010), available at
http://www.madd.org/laws/law-overview/Vehicular_Homicide_Overview.pdf.
106 See, e.g., People v. Winningham, 909 N.E.2d 363, 370-72 (Ill. App. Ct. 2009) (upholding a
sentence of three years for aggravated driving under the influence causing the death of a
woman for a defendant with BAC of .227%); Tucker v. State, 245 P.3d 301, 315-16 (Wyo. 2010)
(upholding a sentence of twelve to twenty years for aggravated vehicular homicide for a
defendant with BAC of .26%).
107 Compare William Petroski, 100-Year Term Possible in Motorcycle Deaths, DES MOINES
REGISTER, Sept. 25, 2010, at A1 (facing up to 100 years in prison for four counts of vehicular
homicide with a BAC of .37), with Man Gets 60 Days Work for DUI Fatal, TIMES ARGUS (Vt.),
Mar. 18, 2010, at B3 (facing sixty days on a prison work crew for a conviction of drunk driving
with death resulting).
108 See, e.g., DEL. CODE ANN. tit. 11, 630, 630A (2007); OKLA. STAT. ANN. tit. 47, 11-903
(West 2010).
109
DEL. CODE ANN. tit. 11, 630A(a). The other applicable statute classifies the action as
just negligent as opposed to criminally negligent and requires a minimum sentence of one
year. Id. 630(a).
110
Id. 630A(b), 631, 4205(b)(5).
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statutory sentencing provisions.111 Additionally, weak sentencing statutes

are not the only problem, as even states with the ability to hand out
tougher sentences sometimes opt for the lighter sentence. 112 These short
sentences allow defendants to serve minimal time and get back to living
their lives, despite the fact that their victims will never have the same
opportunity.113
2.
Harsh States
On the other end of the spectrum are states that have a no-nonsense
approach when it comes to drunk drivers who cause a fatality while
behind the wheel.114 Rhode Island has taken one of the most direct and
toughest approaches in handling offenders who cause a drunk-driving
fatality.115 First, Rhode Islands statute is strictly tailored to handle those
offenders whose driving under the influence (DUI) of alcohol or drugs
causes death, unlike many other states statutes that address vehicular
homicide more broadly.116 Second, Rhode Island requires a minimum
sentence of five years for a DUI resulting in death. 117 Third, this statute
provides greater punishment for those defendants who committed this
same crime within the past five years, requiring a minimum sentence of ten
years.118 Fourth, the statute counts both convictions in its own state and
convictions in other states as a basis for heightening the sentence for the
second conviction.119 Finally, this statute requires the defendant undergo
mandatory alcohol or drug counseling, or both. 120 States like Rhode Island,
111
See, e.g., MASS. GEN. LAWS ch. 90, 24G(b) (2010) (sentencing vehicular homicide
offenders to no less than thirty days and no more than two and one-half years); OKLA. STAT.
ANN. tit. 47, 11-903(B) (sentencing negligent homicide offenders to not more than one year in
county jail).
112 See 18 PA. CONS. STAT. 1103 (2010); 75 PA. CONS. STAT. 3735 (2010); Riley Yates, Man
Sentenced in Drunk-Driving Fatality, MORNING CALL (Pa.), July 16, 2010, at 7 (discussing
sentence of three to six years for a defendant convicted of vehicular homicide, even though
statute allowed judge to sentence up to ten years).
113 See William Sherman, 1 Drunken Cop, 1 Death, 90 Days, N.Y. DAILY NEWS, Oct. 9, 2010, at
14 (Kelly, 32, pleaded guilty to vehicular manslaughter, with a maximum sentence of seven
years.).
114
See, e.g., TENN. CODE ANN. 39-13-218 (2010).

See R.I. GEN. LAWS 31-27-2.2 (2010).
116 Compare id. (affecting only those offenders found driving while under the influence of
alcohol or drugs), with OKLA. STAT. tit. 47, 11-903(A) (2010) (applying to any reckless driver
who kills behind the wheel of a vehicle).
115
117
118
119
120
R.I. GEN. LAWS 31-27-2.2(b)(1)(i).

Id. 31-27-2.2(b)(2).
Id.
Id. 31-27-2.2(b)(1)(ii), (b)(2).
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367
with a clear, tough message on drunk driving, hold their defendants more
accountable for the severity of their crime.121 These states take the stance
that drunk driving is a serious crime and that these incidents are not
accidents, but 100% preventable.122
3.
States Lacking a Clear Message
The third category of states can be broken down into two groups: (1)
states with no specific statute geared towards vehicular homicide resulting
from a DUI;123 or (2) states with a statute, but that choose at times to charge
their offenders with heightened crimes like murder or manslaughter. 124 The
first group consists of states such as Alaska, Arizona, and South Dakota. 125
Currently these states have no designated provision for vehicular
homicide, and this is a problem because it can lead to varying convictions
and sentences for similar behavior.126 For example, in 2009, forty-two
deaths occurred in Alaska as a result of drunk drivers, and because Alaska
had no specific statute tailored to drunk-driving fatalities, each of these
individuals may be punished differentlyallowing for forty-two unique
sentences for the exact same action.127
121
See, e.g., ARK. CODE ANN. 5-4-401(a)(3), 5-10-105(a)(1) (2011) (sentencing DUI death
resulting to no less than five years and no more than twenty years); MISS. CODE ANN. 63-1130(5) (2010) (sentencing DUI death resulting to no less than five years and no more than
twenty-five years); TENN. CODE ANN. 39-13-213(a)(2)-(b)(2), 40-35-112(a)(2) (2010)
(sentencing DUI death resulting to no less than eight years and no more than twelve years).
122
Cafaro, supra note 10, at 28 (Deaths, injuries and property damage caused by impaired
drivers are preventable crimes not accidents.).
123 MADD, supra note 105 (categorizing Alaska, Arizona, and South Dakota as states with
no specific statutory provision for punishing a DUI resulting in death).
124 Compare CAL. PENAL CODE 191.5(a)-(d) (2010), with Nick Adenharts Killer Sentenced,
ESPN.COM (Dec. 22, 2010), http://sports.espn.go.com/los-angeles/mlb/news/story?id=5946234
(discussing the sentence a drunk driver received when convicted of three counts of seconddegree murder).
125
See MADD, supra note 105.

Compare Laughter Over Death Leads to Longer Sentence, MSNBC.COM (Jan. 25, 2008),
http://www.msnbc.msn.com/id/22818852/ (discussing sentence of Arizona defendant serving
ten years in jail for negligent homicide after hitting a cyclist while under the influence of
alcohol), with Jim Seckler, Gibson Sentenced to County Jail Term for Fatal Buggy Crash, THE DAILY
NEWS (Ariz.), Mar. 18, 2011, http://www.mohavedailynews.com/articles/2011/03/18/
news/local/doc4d831a240ca31824519524.txt (discussing a sentence of 150 days in jail for
manslaughter after defendant killed his passenger while driving under the influence of
alcohol).
126
127
See Persons Killed, by Highest Driver Blood Alcohol Concentration (BAC) in the Crash, 19942009 - State: Alaska, NHTSA.GOV, http://www-fars.nhtsa.dot.gov/Trends/TrendsGeneral.aspx
(select Alaska from the drop-down box) (last visited Jan. 31, 2012); MADD, supra note 105.
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The second group is comprised of states like New York, California, and
Indiana.128 In New York, for example, a recent trend has emerged to convict
drunk drivers of murder.129 As a result of this trend, many people are now
asking whether a drunk driver can possess such depravity or malice.130
New Yorks Nassau County District Attorney, Kathleen Rice, believes they
can, and since becoming District Attorney in 2005 she has successfully
prosecuted two depraved indifference murder cases involving drunk
drivers.131 For the past two years, California and Indiana have also
followed this trend by charging drunk drivers who cause fatalities in their
states with murder.132 The message these states are sending is that drunk
driving is a serious crime, one that can lead to your death or anothers, and
the people who commit this crime deserve more than a slap on the wrist. 133
B. Congresss Ability to Fill That Disconnect by Spending
The use of federal grant money in the United States has been
increasing since the early 1900s, and in 2008 federal grants made up
approximately 32% of state revenues. 134 In addition to the number of grants
increasing, the amount of money increases every year, now reaching over
128 Compare N.Y. PENAL LAW 125.12, 125.13, 80.00 (McKinney 2011), CAL. PENAL CODE
191.5(a)-(d) (2010), and IND. CODE ANN. 9-30-5-5(a), 35-50-2-5 (LexisNexis 2010), with
Orta v. State, 940 N.E.2d 370, 379 (Ind. Ct. App. 2011) (upholding a sixty-five year murder
sentence for a drunk driver who killed one individual), Man Appeals Murder Conviction in
Notorious L.I. Crash, CBSNY.COM (Jan. 24, 2011), http://newyork.cbslocal.com/2011/01/24/manappeals-murder-conviction-in-notorious-l-i-crash/ (describing an accident which killed two
people and resulted in the drunk driver being sentenced to second-degree murder), and Nick
Adenharts Killer Sentenced, supra note 124.
129 See Editorial, Rice for Nassau DA: She Made Good on Her Promises and Deserves Another
Four Years, N.Y. DAILY NEWS, Oct. 31, 2009, at 18 [hereinafter Rice for Nassau DA]; Paul Vitello,
Man is Convicted of Two Counts of Murder in L.I. Drunken Driving Case, N.Y. TIMES, Oct. 18, 2006,
http://www.nytimes.com/2006/10/18/nyregion/18dwi.html.
130 See Bob Simon, DWI Deaths: Is It Murder?, CBSNEWS (Aug. 2, 2009), http://
www.cbsnews.com/stories/2008/12/31/60minutes/main4694666.shtml?tag=contentMain;conten
tBody; see also Lawrence Taylor, How to Convict a Drunk Driver of Murder, DUI BLOG (Oct. 9,
2008, 1:51 PM), http://www.duiblog.com/ 2008/10/09/how-to-convict-a-drunk-driver-ofmurder/; Lis Wiehl, Drunk, Driving and Depraved?, FOXNEWS.COM (Jan. 9, 2007),
http://www.foxnews.com/story/0,2933,242581,00.html.
131 Rice for Nassau DA, supra note 129.
132 See Orta, 940 N.E.2d at 379; supra note 128 and accompanying text.
133 See supra note 124 and accompanying text; see also Orta, 940 N.E.2d at 379; Simon, supra
note 130.
134 TAX POLICY CTR., URBAN INST. & BROOKINGS INST., THE TAX POLICY BRIEFING BOOK, at
IV-1-1 (2008), available at http://taxpolicycenter.org/briefing-book/TPC_briefingbook_full.pdf
(noting that most of the intergovernmental grants come in the form of federal grants to the
state, and only a small percentage come from the local governments).
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369
650 billion dollars.135 Most federal grants are conditional grants, requiring
the states to comply with certain terms before the funds will be
disbursed.136 These conditions are the federal governments way of
accomplishing indirectly those objectives that it may not achieve directly,
and each grant is made with the goal of improving the welfare of the
nation.137 Congress uses its spending power to create these grants,138 which
is only subject to a few limitations, none more powerful than the states
ability to decline the funding and its conditions.139
1.
General Welfare
The conditions imposed by Dole have been easily satisfied when it

comes to the national issue of drunk driving.140 When considering the
general welfare limitation,141 the Court typically defers to Congress.142
However, even without deferring to Congress, the Court can easily
determine that any measure that decreases the amount of fatalities on our
nations roadways relates to the general welfare of the nation. 143 Drunk
driving is a national problem that currently kills one person every fortyeight minutes.144 It is a crime that often occurs on our nations highways
roads connecting one state to anothermaking it a national problem that
135
Douglas A. Wick, Note, Rethinking Conditional Federal Grants and the Independent
Constitutional Bar Test, 83 S. CAL. L. REV. 1359, 1364 (2010) (In just ten years, total federal
grant expenditures went from $285 billion in fiscal year 2000, to $653 billion in fiscal year
2010.).
136 See RONALD L. WATTS, THE SPENDING POWER IN FEDERAL SYSTEMS: A COMPARATIVE
STUDY 11, 13 (1999); see also Massachusetts v. Mellon, 262 U.S. 447, 479 (1923).
137 See South Dakota v. Dole, 483 U.S. 203, 207 (1987); United States v. Butler, 297 U.S. 1, 66
(1936) (*T+he power of Congress to authorize expenditure of public moneys for public
purposes is not limited by the direct grants of legislative power found in the Constitution.);
see also Seligmann, supra note 23, at 1068.
138 U.S. CONST. art. I, 8.
139 See Dole, 483 U.S. at 207-11; Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17,
25 (1981); see also Baker, supra note 34, at 1929 (*A+ state always has the simple expedient of
not yielding to . . . federal coercion. (internal quotation marks omitted)).
140 See 483 U.S. at 205-12; see also New York v. United States, 505 U.S. 144, 158 (1992)
(explaining that spending power appears to be limitless despite Doles restrictions).
141 This limitation is taken directly from the text of the spending power: Congress shall
have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the . . . general Welfare of the United States. U.S. CONST. art. I, 8, cl. 1.
142
Helvering v. Davis, 301 U.S. 619, 640 (1937).

See Dole, 483 U.S. at 208-09 (spending federal dollars to ensure safe interstate travel
relates directly to the concept of general welfare).
144 NATL HIGHWAY TRAFFIC SAFETY ADMIN., ALCOHOL-IMPAIRED DRIVING 1 (2010),
available at http://www-nrd.nhtsa.dot.gov/Pubs/811385.pdf.
143
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only Congress can uniformly address.145 Thus, it is well within the general
welfare of the nation to reduce the instances of drunk-driving fatalities by
creating regulations designed at curbing such behavior. 146
Further, Congress has already enacted two provisions encouraging the
states to adopt uniform drunk-driving legislation by attaching the receipt
of federal highway funds to the states acceptance of the terms.147 Both the
nationwide minimum drinking age and the .08 BAC limit were enacted
with the purpose of promoting the general welfare of travelers on the
nations roads by taking one small step towards reducing the number of
fatalities that occur every year due to drunk drivers. 148 Hundreds of lives
could be saved every year by instituting further provisions, and even if the
amount saved is only a fraction of the amount lost, it is still sparing
hundreds of victims and families from needless suffering.149
2.
Clear Statement
The second limitation requires Congress to make a clear and

unequivocal statement of conditions to the states, allowing the states to
make a knowing and voluntary acceptance of the terms. 150 To make a clear
statement Congress ought to model the language and style of the National
Minimum Drinking Age Act,151 because the Court in Dole held that this
Acts conditions could not be more clearly stated by Congress.152 The
limitation of a clear and unequivocal statement is minimal and can easily
be satisfied by Congress as long as the conditions of the contract are
sufficiently explained prior to the states acceptance or rejection.153
145 See Valencia et al., supra note 1 (describing a drunk-driving fatality that occurred on
Interstate 95, which parallels the east coast running from Maine to Florida).
146 See 131 CONG. REC. 21,772 (1985) (statement of Sen. Hollings) (*W+hen the Federal
Government can act to save a substantial number of lives, then I believe it should act. Indeed
this is a paramount function of Government.).
147
See National Minimum Drinking Age Act, 23 U.S.C. 158(a) (2006); id. 163.
See 146 CONG. REC. 13,947 (2000) (statement of Sen. DeWine) (insisting small steps must
be taken to combat drunk driving).
149 See id. (noting that a .08 BAC limit could save between five hundred to six hundred
lives annually).
148
150 South Dakota v. Dole, 483 U.S. 203, 207 (1987); Pennhurst State Sch. & Hosp. v.
Halderman, 451 U.S. 1, 17 (1981).
151
23 U.S.C. 158.
483 U.S. at 208.
153 Cf. Brian Galle, Getting Spending: How to Replace Clear Statement Rules with Clear Thinking
About Conditional Grants of Federal Funds, 37 CONN. L. REV. 155, 157 (2004) (In effect, the
Supreme Court has given Congress free reign to legislate under the Spending Clause . . . .).
152
2012
3.
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371
Nexus Requirement
The third limitation provides that conditions on federal grants might

be illegitimate if they are unrelated to the federal interest in particular
national projects or programs.154 It is one of the more difficult spending
limitations, although it did not stand as a bar to the National Minimum
Drinking Age Act and would likely not stand as a bar to further drunkdriving legislation by the federal government. 155 This is because the Court
provides a loose form of analysis, not looking for a direct means-ends
connection, but rather only that the conditions are not wholly unrelated to
the purposes of the grants.156 Conditions on drunk driving are undoubtedly
related to the main purpose of highway funds: the promotion of safe
interstate travel.157 While a limitation that only focuses on a small aspect of
the drunk-driving epidemic, such as the .08 BAC, may be criticized as both
under- and over-inclusive, that does not mean it will not be a valid exercise
of the spending power.158 After all, Justice OConnor argued in Dole that the
National Minimum Drinking Age Act was both under- and over-inclusive,
but her opinion was outnumbered by the majoritys support of the Act.159
Thus, precedent will not require that grant initiatives under the Spending
Clause be narrowly tailored, only that the conditions be not wholly
unrelated to the purpose.160
154 Dole, 483 U.S. at 207-08 (1987) (quoting Massachusetts v. United States, 435 U.S. 444, 461
(1978) (plurality opinion)); see also Invanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295
(1958) (*T+he Federal Government may establish and impose reasonable conditions relevant
to federal interest in the project and to the over-all objective thereof.).
155
See Dole, 483 U.S. at 208-09; Bagenstos, supra note 36, at 363-71 (discussing the emptiness
of the nexus requirement because the Court often takes Congress at its word in regards to its
policy choices and means of securing those policies).
156 See Dole, 483 U.S. at 208-09. The Court refused to define the outer bounds of the nexus
limitation, not addressing whether conditions less directly related to the particular purpose
of the expenditure would be outside the power of Congress under the Spending Clause. Id.
at 208 n.3.
157 Id. at 208-09; H.R. REP. NO. 98-606, at 6-7 (1984) (*H+ighways used by and the highway
traffic of those who drink and drive and become involved in drunk driving accidents are
interstate.); 146 CONG. REC. 13,948-49 (2000) (statement of Sen. DeWine).
158 Compare Bagenstos, supra note 36, at 365 (Because legislation can rarely if ever achieve
its purposes with precision, most if not all laws are over- and underinclusive to some
degree.), with Christopher ONeill, Note, Legislating Under the Influence: Are Federal Highway
Incentives Enough to Induce State Legislatures to Pass a 0.08 Blood Alcohol Concentration Standard?,
28 SETON HALL LEGIS. J. 415, 425-26 (2004) (determining .08 BAC to be over-inclusive because
it applies not only to those on interstate highways but also those on intrastate roads, and
under-inclusive because drivers with a BAC between .08-.10 are just a small piece of the
problem).
159
160
483 U.S. at 212-18 (OConnor, J., dissenting).

See id. at 208-09 (majority opinion).
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4.
v. 46 |353
Independent Constitutional Bar
The fourth limitation will not pose a hurdle to any conditional grant
based on curbing drunk-driving fatalities because the Twenty-first
Amendment, the Bill of Rights, and the Tenth Amendment do not apply.161
First, the Twenty-first Amendment is not a bar primarily because it is not
part of the Bill of Rights,162 and moreover, the Twenty-first Amendment
does not speak in regard to the federal governments ability to offer money
to the states to promote uniform sentencing for drunk-driving fatalities.163
Second, a drunk-driving sentencing regulation can avoid conflict with the
Bill of Rights by making the regulations punishment proportional to the
crime.164
Third, the Tenth Amendment is not implicated because the federal
government is not forcing the states to act. 165 By using the Spending Clause,
Congress has left the states with the option to decline the funding and
proceed on their usual course.166 Further, the Spending Clause allows
Congress to regulate in areas traditionally reserved to the states, as long as
its power is conditioned upon the states acceptance of the funds.167 In
Oklahoma v. Civil Service Commission, the Court considered the validity of
the Hatch Act, which allowed the federal government to withhold certain
federal funds unless a state official was removed, and held that although
the federal government has no power to [directly] regulate local political
activities, Congress may nevertheless fix the terms upon which [federal]
161
See id. at 209-11.

See Engdahl, supra note 23, at 16 (arguing that the Bill of Rights is the only true bar to
Congresss use of the spending power).
162
163 Cf. U.S. CONST. amend. XXI (focusing on the importation and sale of alcohol); Cal.
Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 110 (1980) (The Twentyfirst Amendment grants the States virtually complete control over whether to permit
importation or sale of liquor and how to structure the liquor distribution system.).
164
See U.S. CONST. amend. VIII; Graham v. Florida, 130 S. Ct. 2011, 2021 (2010).
New York v. United States, 505 U.S. 144, 176 (1992) (explaining that Tenth Amendment
protection arises when Congress compels the states to act, but that it fails to arise when
Congresss action is conditional and not absolute).
166 Dole, 483 U.S. at 210; see also Oklahoma v. Civil Serv. Commn, 330 U.S. 127, 143 (1947);
Steward Mach. Co. v. Davis, 301 U.S. 548, 595 (1937); Massachusetts v. Mellon, 262 U.S. 447,
480 (1923).
165
167 See Civil Serv. Commn, 330 U.S. at 143-44; see also No Child Left Behind Act of 2001, Pub.
L. No. 107-110, 115 Stat. 1425 (codified as amended in scattered sections of 20 U.S.C.)
(implementing federal standards for education, a traditional state concern, on the receipt of
federal funds); Padavan v. United States, 82 F.3d 23, 29 (2d Cir. 1996) (approving federal
Medicaid regulations requiring states to provide emergency medical services to illegal
immigrants because the regulation is voluntary and not mandatory).
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373
money is disbursed to states.168 In sum, based on the fact that Congress is

using federal money and cannot enforce its policies without the states
acceptance of the terms, the Tenth Amendment does not apply. 169
5.
Coercion
The final limitation of Dole recognizes that at some point financial

inducement offered by Congress might be so coercive as to pass the point
at which pressure turns into compulsion.170 The Supreme Court has yet
to dictate at what point financial incentive might become too much for the
states to resist but has held 5% to be a relatively small amount.171 Since
1987, the lower courts have increasingly dismissed the coercion
argument,172 even upholding measures that deny states up to 95% of funds
if they decline to accept Congresss terms.173 In Nevada v. Skinner, the
federal regulation at issue was the Emergency Highway Energy
Conservation Act, requir[ing] the States as a precondition to receiving
federal funds to post a maximum speed limit of 55 miles per hour (mph) on
all highways . . . .174 Nevada brought suit claiming this new federal
provision was coercive because it threatened to withhold approximately
95% of the states highway funds.175 In reviewing the states claims, the
court held that this provision was not coercive, and questioned whether the
court was ever truly capable of determining when temptation becomes
coercion.176 In light of this decision, and many others, it is not surprising
that over the last decade Congress has frequently used its ability to offer
mild encouragement to the states to enact the type of policies it deems
necessary for the national welfare.177 Thus, it is reasonable to conclude that
168
330 U.S. at 143.

See Steward Mach. Co., 301 U.S. at 595 (There is only a condition which the state is free
at pleasure to disregard or to fulfill.).
170 483 U.S. at 211 (quoting Steward Mach. Co., 301 U.S. at 590).
171 Id.
172 See, e.g., Kansas v. United States, 214 F.3d 1196, 1198, 1201-02 (10th Cir. 2000); California
v. United States, 104 F.3d 1086, 1092 (9th Cir. 1997); Nevada v. Skinner, 884 F.2d 445, 448-49
(9th Cir. 1989); cf. Oklahoma v. Schweiker, 655 F.2d 401, 414 (D.C. Cir. 1981) (The courts are
not suited to evaluating [sic] whether the states are faced here with an offer they cannot refuse
or merely a hard choice.).
169
173
Skinner, 884 F.2d at 448-49.

Id. at 446.
175 Id.
176 Id. at 448.
177 See 23 U.S.C. 163 (2006) (conditioning the receipt of federal highway funds on state
adoption and enforcement of .08 BAC); see also No Child Left Behind Act of 2001, Pub. L. No.
107-110, 115 Stat. 1425 (codified as amended in scattered sections of 20 U.S.C.) (conditioning
the receipt of federal funds upon the states adoption of federal educational standards);
174
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if Congress keeps its financial inducement to a minimum, coercion will not

present a problem for future federal drunk-driving legislation.178
C. Federalism Concerns
States rights supporters vehemently oppose federal government
efforts to spend money to promote federal policies throughout the states. 179
These individuals argue that the Spending Clause is being abused, that it
was never intended to allow Congress to legislate in realms traditionally
reserved for the states.180 However, this understanding is missing the value
of the states ability to reject the terms of the Spending Clause legislation.181
When Congress uses the Spending Clause, states are not forced to accept
anything; instead, they have a choicewhether it is more important to
hold onto their local regulation or more beneficial to forfeit those
regulations for federal funding.182 To date, the Court has found this choice
voluntary, especially where the state is fully aware of the ramifications of
its consent and the governments temptation does not reach the level of
coercion.183
American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115 (codified as
amended in scattered sections of 6, 7, 19, 26, 42, and 47 U.S.C.) (conditioning the receipt of
federal funds on states agreement to spend the funds according to federal economic recovery
guidelines).
178
See Bagenstos, supra note 36, at 372-74 (*T+he lower courts have consistently failed to
find impermissible coercion, even when a state has demonstrated that either the absolute
amount or percentage of federal money at stake is so large that it has no choice but to accept
the *federal legislations+ many requirements. (footnote omitted)); see also Kathleen M.
Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1450 (1989) (To hold that
conditions coerce recipients because they make them worse off with respect to a benefit than
they ought to be runs against the ground rules of the negative Constitution on which the
unconstitutional conditions problem rests.).
179 See Ilya Somin, Closing the Pandoras Box of Federalism: The Case for Judicial Restriction of
Federal Subsidies to State Governments, 90 GEO. L.J. 461, 464-67 (2002) (explaining how federal
grants undermine state responsiveness to diverse local preferences).
180 See Engdahl, supra note 23, at 27-29 (stating that spending is limited to Congresss
enumerated powers, such as raising an army or regulating interstate commerce). But see
United States v. Butler, 297 U.S. 1, 66 (1936) (rejecting such a limitation and holding that the
spending power is not limited to the direct grants of power found in the Constitution);
Michael T. Gibson, Congressional Authority to Induce Waivers of State Sovereign Immunity: The
Conditional Spending Power (and Beyond), 29 HASTINGS CONST. L.Q. 439, 456 n.83 (2002)
(presenting Supreme Court precedent in favor of the broad view of the spending power).
181 See Oklahoma v. Civil Serv. Commn, 330 U.S. 127, 143 (1947); Steward Mach. Co. v.
Davis, 301 U.S. 548, 595 (1937); Massachusetts v. Mellon, 262 U.S. 447, 480 (1923).
182
See South Dakota v. Dole, 483 U.S. 203, 205-12 (1987); see also New York v. United States,
505 U.S. 144, 166 (1992) (noting that while Congress may not commandeer the states to act, it
may offer incentives to encourage a State to regulate in a particular way).
183
See Dole, 483 U.S. at 205-12; Helvering v. Davis, 301 U.S. 619, 640-42 (1937); Steward
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375
Moreover, national control over the problem of drunk driving is

increasingly necessary.184 Drunk driving is not a crime that stops at the
borders of one state, but rather its destruction continues from one state to
another, threatening both interstate commerce and the lives of those on our
nations roads.185 As a nation we need to deter this crime, and over the last
twenty to thirty years uniform regulations have proven the most effective
means of deterrence.186 For example, the adoption of a .08 BAC nationwide,
through Congresss use of the Spending Clause, undoubtedly contributed
to a reduction in drunk-driving fatalities from 16,885 in 2005187 to 10,839 in
2009.188 The success of past federal initiatives is overwhelming, especially
when Congress uses the Spending Clause, but the battle is ongoing. 189 To
fight this battle effectively it is imperative that we use conditioned federal
funds to encourage the states to adopt these programs because other
methods have not proven as effective.190
Mach. Co., 301 U.S. at 588-90; see also Kansas v. United States, 214 F.3d 1196, 1198, 1201-02 (10th
Cir. 2000); Nevada v. Skinner, 884 F.2d 445, 447-49 (9th Cir. 1989).
184 See Dole, 483 U.S. at 208; 146 CONG. REC. 13,948 (2000) (statement of Sen. DeWine) (The
problem is bigger than the individual states . . . . Its a grave national problem, and it touches
all our lives. (internal quotation marked omitted)).
185 H.R. REP. NO. 98-606, at 2-7 (1984) (advocating that interstate commerce is affected by
drunk driving accidents); Watson, supra note 10, at 460 (Drinking and driving has become an
epidemic in this country. It takes lives, shatters families, and costs our nation hundreds of
billions of dollars.).
186 See, e.g., National Minimum Drinking Age Act, 23 U.S.C. 158 (2006); 23 U.S.C. 163;
see also ALEXANDER C. WAGENAAR & AMY L. TOBLER, POLICY BRIEF ON: DUI POLICY 1-2 (2009),
available at http://www.ncdhhs.gov/mhddsas/statspublications/reports/dui_policy_policybrief
report.pdf.
187

NATL HIGHWAY TRAFFIC SAFETY ADMIN., supra note 7; see 146 CONG. REC. 13,947 (2000)
(statement of Sen. DeWine) (proposing that the adoption of .08 BAC nationwide would save
500 to 600 lives annually).
189 See Press Release, Natl Highway Traffic Safety Admin., U.S. Transportation Secretary
LaHood Announces Lowest Traffic Fatalities in Six Decades (Sept. 9, 2010), available at
http://www.nhtsa.gov/PR/DOT-165-10; see also 146 CONG. REC. 13,948 (statement of Sen.
DeWine) (noting a reduction in alcohol-related fatalities but not conceding that the battle has
been won).
188
190 Compare 23 U.S.C. 163, with 146 CONG. REC. 13,947-48 (statement of Sen. DeWine)
(noting that Congress originally adopted an incentive grant program to encourage the
adoption of the .08 BAC and that the program was ineffective because only one state took
advantage of it over a two-year period).
376
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III. Proposal: Sentencing Guidelines for Drunk Drivers that Cause a

Fatality
Below is a federal proposal to help curb drunk-driving fatalities. It
begins by mimicking the language from previous drunk-driving
legislation, such as the National Minimum Drinking Age Act, by
incorporating the right to withhold federal highway funds as a means of
encouraging the states to adopt this regulation.191 The proposal also adopts
much of the language from Rhode Islands DUI death resulting statute,
to provide a comprehensive definition of the crime and its appropriate
punishment.192 Furthermore, the proposal incorporates language from a
provision before Congress in 2009, which used federal money to encourage
the states adoption of an ignition interlock program that affects drunk
drivers once their licenses have been initially restored following a
suspension related to their drunk-driving incident.193 Finally, the proposal
creates a national database that will contain conviction information on all
offenders found in violation of this proposal, to help promote better
communication between the states as to the circumstances surrounding the
individuals offense.194
(a) General authority: The Secretary shall withhold five (5) per
centum of the amount apportioned to each state under
section 402 beginning on May 1, 2013 and on May 1 of each
fiscal year thereafter, from any State that has not enacted or
is not enforcing the nationwide sentencing guidelines for
driving under the influence, resulting in death.195
(b) Driving under the influence, resulting in death defined: As
used in this section, the term driving under the influence,
resulting in death meanswhen the death of any person
other than the operator ensues as a proximate result of an
injury received by the operation of any vehicle, the operator
of which is per se intoxicated with a BAC of .08 or greater.196
(c) Any person charged with the commission of the offense set
forth in subsection (b) of this section shall, upon conviction,
be punished as follows197:
191
See 158(a), 163(e).

See R.I. GEN. LAWS 31-27-2.2 (2010).
193 See Drunk Driving Repeat Offender Prevention Act of 2009, S. 2920, 111th Cong. (2009),
available at http://www.gpo.gov/fdsys/pkg/BILLS-111s2920is/pdf/BILLS-111s2920is.pdf.
194 See Watson, supra note 10, at 506-18 (proposing a public notification system featuring
drunk drivers).
192
195
196
197
See 23 U.S.C. 158(a); see also South Dakota v. Dole, 483 U.S. 203, 205-12 (1987).
See 163(a); R.I. GEN. LAWS 31-27-2.2(a).
See 31-27-2.2(b).
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377
(1) (i) Every person convicted of a first violation shall be

punished by imprisonment in the state prison for not less
than five (5) years and for not more than fifteen (15) years, in
any unit of the adult correctional institutions in the
discretion of the sentencing judge, by a fine of not less than
five thousand dollars ($5,000) nor more than ten thousand
dollars ($10,000), and his or her license to operate a motor
vehicle shall be revoked for a minimum period of ten (10)
years.198
(ii) In addition, the person convicted is required to
successfully complete an alcohol treatment program, at his
or her own expense, in a program established by the director
of the Department of Corrections, and must successfully
complete the program before any license to operate a motor
vehicle is renewed.199
(2) Every person convicted of a second or subsequent violation
within a twenty (20) year period in this state or any other
state, shall be punished by imprisonment in the state prison
for not less than ten (10) years and for not more than twenty
(20) years, in any unit of the adult correctional institutions in
the discretion of the sentencing judge, by a fine of not less
than ten thousand dollars ($10,000) nor more than twenty
thousand dollars ($20,000) and his or her license to operate a
motor vehicle shall be revoked for a minimum period of
fifteen (15) years. In addition, the person convicted is
required to successfully complete alcohol or drug treatment,
at his or her own expense, in a program established by the
director of the Department of Corrections.200
(3) Every person who has his or her license reinstated after
successfully completing an alcohol or drug treatment
program, shall have to affix an ignition interlock device upon
his or her vehicle, at his or her own expense, for a minimum
period of six (6) months and for not more than two (2) years
following the reinstatement of his or her license. The penalty
for a failure to do so within a 30 day period will result in
automatic suspension of the license for a minimum period of
one (1) year.201
(4) All offenders convicted under (1)(i) or (2) shall be listed in a
national registry, which will provide adequate detail for the
basis of the conviction to all 50 states and territories. Before
sentencing a drunk driver, states shall perform a search on
198
See id. 31-27-2.2(b)(1)(i).

See id. 31-27-2.2(b)(1)(ii).
200 See id. 31-27-2.2(b)(2).
201 See Drunk Driving Repeat Offender Prevention Act of 2009, S. 2920, 111th Cong. (2009),
available at http://www.gpo.gov/fdsys/pkg/BILLS-111s2920is/pdf/BILLS-111s2920is.pdf.
199
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this database for any previous convictions.202
First, this proposal suggests 5% as the amount to be withheld from the

states until their acceptance of the terms because 5% is the only amount
that has been upheld by the U.S. Supreme Court as not coercive. 203 Second,
this proposal clearly defines the crime of DUI death resulting by
tailoring the statute strictly to those drunk drivers who kill behind the
wheel, thereby implementing the language of the Rhode Island statute. 204
The statute suggests a minimum sentence of five years and raises the
sentence for a second offense, in an attempt to stress the severity of this
crime and to improve the deterrent effect on the public.205 The drug
treatment program provision, taken from the Rhode Island statute, has
been adopted here because alcohol abuse is often a significant cause of this
crime.206 The proposal also implements an ignition interlock device
program to take effect after the driver has had his license restored. 207 This
component is important because it will allow the state to initially monitor
the offender when he returns to driving to ensure he is not resuming the
same reckless behavior.208 Finally, the proposal ends with the creation of a
national database that records and shares information about these
offenders between the states.209 This final provision is important to improve
communication both within and between the states, so that offenders are
not able to manipulate the system by moving from state to state. 210
202
See Watson, supra note 10, at 506-18 (proposing a public notification system featuring
drunk drivers).
203
South Dakota v. Dole, 483 U.S. 203, 211 (1987).

See R.I. GEN. LAWS 31-27-2.2(a).
205 See Watson, supra note 10, at 498 (*D+rivers with prior DWI convictions are overrepresented in fatal crashes and have a greater relative risk of involvement in a fatal crash.
(internal quotation marks omitted)); Daniela Altimari, Victims Relatives: Stiffen Penalties,
HARTFORD COURANT, Mar. 19, 2011, at B1.
204
206
Adam Lamparello, Note, Reaching Across Legal Boundaries: How Mediation Can Help the
Criminal Law in Adjudicating Crimes of Addiction, 16 OHIO ST. J. ON DISP. RESOL. 335, 349 &
n.90 (2001) (explaining that jail does not cure the underlying cause of the drunk drivers
actions and suggesting treatment would provide a better solution to the addiction).
207
See supra note 201 and accompanying text.

See Mary Forgione, Ignition Interlocks Curb Number of Repeat Arrests for Convicted Drunk
Drivers, Study Finds, L.A. TIMES, Feb. 22, 2011, http://articles.latimes.com/2011/feb/22/news/laheb-ignition-locks-20110222.
209 See supra note 202 and accompanying text.
210 See Karin Crompton, Familys Wound From Drunken-Driving Death Can't Heal, THE DAY
(Conn.), Apr. 18, 2010, at B1.
208
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379
IV. This Federal Proposal Is Necessary to Help Combat Drunk-Driving

Fatalities.
A. A National Problem Requires a National Solution.
Drunk driving is a national problem claiming the lives of more than
10,000 people annually in America.211 It is a crime that occurs on our
nations interstate roadways at an alarming rate, with no regard for the
innocent drivers sharing those same roads. 212 Much like rampant
unemployment213 and poor educational standards,214 drunk driving does
not stop at the border to ask permission to enter before wreaking havoc on
the states citizens.215 It is a force that can only be fought by uniform
national action, legislation that treats all drunk driving the same and
punishes it with equal force.216 A national solution is nothing more than
common sense: as a family drives from one state to another, the same
standardsthe same tough lawswill apply.217
B. Why This Proposal?
While there are many more steps to be taken in the battle against
drunk driving,218 this should be the next step in fighting the seemingly
never-ending amount of fatalities that occur every year. 219 With each state
211

See supra note 145 and accompanying text; see also H.R. REP. NO. 98-606, at 6-7 (1984);
wlkytv, Survivors Mark 20th Anniversary of Deadly DUI Crash, YOUTUBE (May 14, 1988),
http://www.youtube.com/watch?v=1RT5JSBWCuo&feature=related (WLKYTV television
broadcast May 14, 1988).
212
213
Helvering v. Davis, 301 U.S. 619, 639-45 (1937).

See generally No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425
(codified as amended in scattered sections of 20 U.S.C.) (attempting to remedy poor
educational standards).
215 See Breithaupt v. Abram, 352 U.S. 432, 439 (1957); see also Mich. Dept of State Police v.
Sitz, 496 U.S. 444, 451 (1990) (Media reports of alcohol-related death and mutilation on the
Nations roads are legion.); 146 CONG. REC. 13,948 (2000) (statement of Sen. DeWine); cf.
Helvering, 301 U.S. at 639-45 (increasing unemployment across the nation required a national
solution); see also Steward Mach. Co. v. Davis, 301 U.S. 548, 586-89 (1937).
214
216
See South Dakota v. Dole, 483 U.S. 203, 205-12 (1987); see also 23 U.S.C. 163 (2006).
146 CONG. REC. 13,947.
218 See Cafaro, supra note 10, at 18-28 (proposing various solutions to the current DUI
problem in America); Watson, supra note 10, at 460 (stating that current DUI laws do not
provide effective deterrents).
219
Compare, e.g., Brian Shane, Remorseful Drunk Driver Sentenced in Cyclists Death,
SALISBURY DAILY TIMES (Md.), Oct. 12, 2010, available at 2010 WLNR 20371344 (sentencing a
drunk driver to eighteen months for vehicular homicide), with Marcela Rojas, Family Still in
Anguish 1 Year After Brewster DWI Killings, J. NEWS (N.Y.), June 6, 2010, available at 2010 WLNR
11558201 (sentencing drunk driver to eight to twenty-five years for vehicular manslaughter).
217
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having a different standard for the crime of vehicular homicide stemming

from a DUI, it creates a system where a life becomes more valuable in one
state than it is in another.220 The proposed provision in Part III would
prevent this sort of inequality by creating sentencing guidelines for all
states to follow.221 Additionally, this provision would require all states that
accept federal funding to create a crime of DUI death resulting and to
sentence drunk-driving fatality convictions according to this statute.222 The
uniformity resulting from this would deter drunk driving and promote
greater communication between the states in their unified fight.223
Moreover, this statute should be upheld by the Court, as the
limitations of Dole would create no sufficient obstacle.224 First, this statute is
clearly focused on promoting the general welfare.225 It is designed to
combat drunk-driving fatalities by holding offenders equally responsible
for their reckless crimes and by recognizing that a life in one state is just as
valuable as a life in the next. 226 Currently, the states have erected borders
similar to the blood borders that existed prior to the National Minimum
Drinking Age Act.227 These borders are set up between those states that
take a lenient stance on drunk driving and those that take a harsh stance,
and the result of this is drunk drivers are able to take advantage of the
states failure to produce a unified message. 228 Further, these harsher
penalties and greater restrictions on license reinstatement will undoubtedly
save lives, and saving lives is a noble goal of the federal government. 229
220
See supra note 107 and accompanying text.

See supra Part III.
222 See supra Part III. This would help to cure the checkered effect that current drunkdriving legislation has created across the nation. See supra Part II.A.
221
223 See supra Part III; see also Adam Silberlight, Preventing the Inevitable and Avoiding the
Protected: The Potential Use of the Inevitable Discovery Theory in Relation to Non-Privileged Blood
Samples for Use in Drinking and Driving Related Prosecutions, 19 ST. JOHNS J. LEGAL COMMENT.
507, 507-08 (2005) (preventing drinking and driving has captured significant interest from the
governmental branches). Greater communication is necessary because drunk-driving records
are generally not shared between the states, and if they are, only a limited amount of
information appears, which does not always adequately describe the incident for authorities.
See Crompton, supra note 210.
224
See South Dakota v. Dole, 483 U.S. 203, 205-12 (1987).

Id. at 207-08.
226 See supra Part III; see also 146 CONG. REC. 13,948 (2000) (statement of Sen. DeWine).
227 See H.R. REP. NO. 98-606, at 3 (1984); supra Part II.A.
228 See Crompton, supra note 210.
229 See 131 CONG. REC. 21,772 (1985) (statement of Sen. Hollings) (advocating that a
nationwide minimum drinking age will help save lives and that it is the function of the federal
government to enact such legislation to save those lives).
225
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381
Second, the language of the statute is clear and unambiguous.230 The

language is modeled after the National Minimum Drinking Age Act, which
was upheld in Dole, clearly providing what would be required of the states
if they accepted these funds.231 Moreover, the governmental agency in
charge of enforcing this statute is aware that the regulation is meant to
impose conditions on the states. 232 In reading this statute, the states will be
able to make an informed and voluntary decision, which is the premise of
the clear-statement requirement.233
Third, the legislation is not wholly unrelated to the goal of highway
safety.234 By putting these offenders behind bars for a considerable amount
of time, requiring them to undergo alcohol treatment, and revoking their
licenses, there is less likelihood that these offenders will be released to
commit this crime again.235 Further, requiring states to obtain information
regarding a defendants driving record prior to sentencing will ensure that
defendants are not able to hide their past DUI offenses. 236 Undoubtedly,
such a law will be criticized as under-inclusive because it is focused only
on those drunk drivers who cause a fatality.237 However, underinclusiveness has never been grounds for rejecting a congressional measure
under the Spending Clause.238
Finally, this statute is likely to survive the fourth and fifth limitations,
as it does not come into conflict with the Bill of Rights 239 and its financial
incentive does not rise to the level of coercion. 240 In Dole, the Court held
that a 5% financial incentive, equivalent to that of the proposal, only rose to
230
See supra Part III.

23 U.S.C. 158 (2006); South Dakota v. Dole, 483 U.S. 203, 208-09 (1987).
232 See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 25 (1981) (holding state
understanding as an important factor in interpreting the clarity of the regulations conditions).
231
233
See id. at 17.

Dole, 483 U.S. at 208-09.
235 Cf. Watson, supra note 10, at 498-500 (DUI recidivism is not just a threat; it is
anticipated.).
237 See Bagenstos, supra note 36, at 365.
238 See Dole, 483 U.S. at 208-09; Steward Mach. Co. v. Davis, 301 U.S. 548, 573, 589-90 (1937)
(upholding a provision regulating only employers of eight or more, which is undoubtedly
under-inclusive as employers of fewer than eight still contribute to unemployment).
234
239 See Engdahl, supra note 23, at 16. Sentencing provisions do occasionally come into
conflict with the Eighth Amendments Cruel and Unusual Punishment Clause, but these
sentences are unlikely to rise to the level of sentences previously struck down by the Court.
See, e.g., Graham v. Florida, 130 S. Ct. 2011, 2030 (2010) (striking down a life sentence for a
non-homicide juvenile offender); Kennedy v. Louisiana, 554 U.S. 407, 413 (2008) (holding the
death penalty unconstitutional for the crime of raping a child).
240
See Dole, 483 U.S. at 211-12.
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the level of temptation.241 Moreover, since Dole, measures depriving states

of over 90% of federal funds have been upheld by the lower courts. 242 Since
Dole, despite the Courts warning that at some point pressure turns into
compulsion, coercion has yet to be found.243
C. A State Solution Is Not Sufficient Because Disparities Result in a
Lack of Deterrence, Appropriate Monitoring, and Justice.
Drunk-driving fatality sentences vary widely, ranging from thirty days
to life in prison.244 Some states have even been unable to send a unified
message within their own state. 245 In New York, for example, Suffolk
County takes a drastically different stance on drunk driving than Nassau
County.246 That disconnect amongst and within the states fails to
adequately put drunk drivers on notice as to the consequences of their
actions.247 Consistent with the theory of deterrence, an important goal of
any criminal sentence,248 these offenders must be able to predict the
punishment they will receive for their actions.249 Federal legislation, such as
241
Id.
See, e.g., Nevada v. Skinner, 884 F.2d 445, 447-49 (9th Cir. 1989) (concluding that the
withholding of 95% of federal highway funds does not amount to coercion); Kansas v. United
States, 24 F. Supp. 2d 1192, 1198-99 (D. Kan. 1998) (declining to evaluate whether states had no
choice or merely a hard choice with respect to regulating in order to qualify for the receipt of
federal funds).
242
243 Dole, 483 U.S. at 211 (quoting Steward Mach. Co., 301 U.S. at 590); see Baker & Berman,
supra note 73, at 467-69 & n.54.
244
Compare Long Beach Man Gets Life Sentence for DUI Crash that Killed Girl, 1, CBSLOCAL
(L.A.) (Mar. 8, 2011), http://losangeles.cbslocal.com/2011/03/08/long-beach-man-gets-lifesentence-for-dui-crash-that-killed-girl-1, with Monkovic, supra note 18.
245 Compare Joe Dowd & Joseph Pinciaro, Update: Plainview Drunk Driver Gets 1 1/2 - 4 Years
in Cops Death; Family Wants Stiffer Laws, BAYPORT-BLUEPOINTPATCH (Jan. 14, 2011),
http://bayport.patch.com/articles/update-drunk-driver-sentenced-to-1-12-4-years-in-suffolkofficers-death-2 (convicting a drunk driver who caused a fatality of first-degree
manslaughter), with Press Release, Nassau Cnty. Dist. Attorneys Office, Deer Park Man
Indicted for Murder After Drunk Driving Wrong-Way Crash that Killed His Friend (Feb. 10,
2011), available at http://www.nassaucountyny.gov/agencies/DA/NewsReleases/2011/021110
cruz.htm (proposing a charge of second-degree murder for a drunk driver who killed his
passenger).
246 See supra note 245 and accompanying text.
247 See Harmelin v. Michigan, 501 U.S. 957, 1007 (1991) (Kennedy, J., concurring in part)
([B]road and unreviewed discretion exercised by sentencing judges leads to the perception
that no clear standards are being applied . . . .).
248
See JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 37 (5th ed. 2009)
(asserting that incarcerating criminals can be justified by both general and specific deterrence).
249 Elizabeth S. Scott & Laurence Steinberg, Social Welfare and Fairness in Juvenile Crime
Regulation, 71 LA. L. REV. 35, 53 (2010) (contending that sentencing must be both predictable
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the Anti Car Theft Act of 1992,250 has had success in deterring crime by
providing uniform methods of detection and punishment. 251 Thus, federal
action would provide more effective deterrence, as the law would be
uniformly applied as opposed to a state-by-state or county-by-county
determination.252
Better communication is needed amongst the states. 253 States currently
sentence drunk drivers who cause fatalities under a variety of statutes that
impose different sentencing schemes.254 This results in an inaccurate
picture of what the defendant did to receive the conviction. 255 For example,
if New York tells Massachusetts that Driver X was convicted of depravedindifference murder, and no further description is attached to it,
Massachusetts may assume it had nothing to do with his driving record
and permit the defendant to drive.256 The proper solution is to have all
states sentence under the same statute, ensuring the ability of other states
to quickly recognize the offense and properly regulate the defendant based
on his previous record.257
Finally, this proposal recognizes the dramatic loss to the victims and
their families.258 In 2009 alone, 10,839 people died senselessly due to the
actions of drunk driversmeaning 10,839 funerals could have been
and frequently imposed to have any deterrent effect).

250
Pub. L. No. 102-519, 106 Stat. 3384 (codified as amended in scattered sections of 18
U.S.C.).
251 See NATL HIGHWAY TRAFFIC SAFETY ADMIN., AUTO THEFT AND RECOVERY: EFFECTS OF
THE ANTI CAR THEFT ACT OF 1992 AND THE MOTOR VEHICLE THEFT LAW ENFORCEMENT ACT OF
1984, at xiv (1998), available at http://www-nrd.nhtsa.dot.gov/pubs/808761.pdf (discussing the
deterrent effects of the federal marked parts regulations).
252 Cf. PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003) (enacting federal legislation
to assist law enforcement nationwide in the fight against child sex abuse); Erik Luna & Paul G.
Cassell, Mandatory Minimalism, 32 CARDOZO L. REV. 1, 11 (2010) (explaining how mandatory
minimums send a clear message to offenders).
254 See supra Part II.A.
255 See, e.g., Crompton, supra note 210 (discussing an incident in which a Rhode Island
database noted that a conviction was the result of negligent driving, while an equivalent
Connecticut database failed to provide any additional details concerning the accident).
256
See id.
Cf. Rebecca Rader Brown, Note, The Gangs All Here: Evaluating the Need for a National
Gang Database, 42 COLUM. J.L. & SOC. PROBS. 293, 297 (2009) (Federal funding and oversight
can improve information sharing and uniformity across jurisdictions . . . .); Jean Peters-Baker,
Comment, Challenging Traditional Notions of Managing Sex Offenders: Prognosis Is Lifetime
Management, 66 UMKC L. REV. 629, 669 (1998) (arguing that consistent sentencing of sex
offenders from state-to-state would aid in the nations fight against sex crimes).
257
258
See HCADW, supra note 7.
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avoided had other individuals chosen not to drink and drive. 259 The
proposal heightens sentencing to acknowledge this loss and with the hope
of deterring future losses.260
CONCLUSION
The increasing slaughter on our [nations] highways, most of which
[is] avoidable, now reaches the astounding figures only heard of on the
battlefield.261 Drunk driving has claimed the lives of over 75,000 people in
America since 2004.262 Those 75,000 individuals were important to
someone, and each family endured a needless loss because of another
individuals selfish decision to drink and drive. Those same families will go
to court hoping to receive justice, and many of them will leave feeling
justice was not served.263 Feeling the justice system turned its back on them,
families may look to their states wondering why they are not doing more
to impose more stringent sentences upon those convicted of drunk-driving
fatalities.264 The problem is that the state justice systems are not the best
weapon against a national problemfederal attention is necessary to
properly address this injustice.265
The federal governments indirect regulation of drunk driving is not a
new idea; in fact it has been sanctioned by the Court as a legitimate use of
the Spending Clause since 1987.266 The Spending Clause has been used to
encourage a uniform standard amongst the states in areas such as the
259 See NATL HIGHWAY TRAFFIC SAFETY ADMIN., supra note 7; Watson, supra note 10, at 460
(As survivors, we try to block out the fact that a loved ones death occurred for no reason
other than that someone felt entitled to drink in excess and then drive.).
260
Family Outrage at Prison Sentence for Drunk Driver, FOX NEWS (Mar. 3, 2011),
http://video.foxnews.com/v/4565924/family-outrage-at-prison-sentence-for-drunk-driver
(reporting familys desire for drunk driver to serve heightened sentence for his killing of their young
daughter).
261 Breithaupt v. Abram, 352 U.S. 432, 439 (1957) (footnote omitted); see also Mich. Dept of
State Police v. Sitz, 496 U.S. 444, 451 (1990) (No one can seriously dispute the magnitude of
the drunken driving problem or the States interest in eradicating it. Media reports of alcoholrelated death and mutilation on the Nations roads are legion.); South Dakota v. Neville, 459
U.S. 553, 558 (1983).
262 See NATL HIGHWAY TRAFFIC SAFETY ADMIN., FARS ENCYCLOPEDIA: TRENDS-ALCOHOLUSA 2009, http://www-fars.nhtsa.dot.gov/Trends/TrendsAlcohol.aspx (last visited Jan. 31,
2012).
263
See, e.g., Jim Shannon, Family Upset Over Sentencing in Deadly DWI Crash, WAFB
CHANNEL 9 (Jan. 21, 2009), http://www.wafb.com/Global/story.asp?S=9674730.
264 See, e.g., Larry Kusch, Seeking Justice for Their Friends: Group Demands Tougher Penalties
for Drunk Drivers, WINNIPEG FREE PRESS, Dec. 29, 2010, at 7.
265
266
See 131 CONG. REC. 21,772 (1985) (statement of Sen. Hollings).

See South Dakota v. Dole, 483 U.S. 203, 205-12 (1987).
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385
minimum drinking age and per se intoxication levels. 267 These regulations
were small steps in the fight against drunk driving, but they have aided in
the decline of drunk-driving fatalities since the 1980s.268 However, the fight
against drunk driving is not over and the next logical step is to ensure
uniform sentencing for the worst offenders. Uniform sentencing will
provide equal recognition of the harm caused, greater communication
between the states, and will put drunk drivers on sufficient notice of the
ramifications of their actions. Of course, stiffer sentences for the worst
offenders will not completely solve the problem, but any step forward in
the fight against drunk driving is essential to ensure the greater welfare of
the American people.269
267
See 23 U.S.C. 158, 163 (2006).

See Larry Copeland, Drunken Driving Fatalities Down 7% in USA, USA TODAY, Dec. 8,
2009, at 3A.
268
269 See 146 CONG. REC. 13,948 (2000) (statement of Sen. DeWine) (Despite all of our past
efforts, alcohol involvement is still the single greatest factor in motor vehicle deaths . . . . [We]
must continue to take small, but effective . . . steps forward in the battle against drunk
driving.).

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Another Small Step in Americas Battle

Thousands of Americans are victims of drunk-driving accidents every

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n June 17, 2010, Massachusetts State Police Sergeant Doug

Valencia et al., supra note 1.

NATL HIGHWAY TRAFFIC SAFETY ADMIN., supra note 7.

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2 (2006) (describing drunk driving as a widespread crime with no demographical boundaries);

See NATL HIGHWAY TRAFFIC SAFETY ADMIN., supra note 7.

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caused.18 Further, there is an illogical disparity among the states treatment

U.S. CONST. art. I, 8, cl. 1.

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Engdahl, supra note 23, at 41, 46-48.

See Dole, 483 U.S. at 211-12.

See id.; Engdahl, supra note 23, at 21.

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Congresss power is just an offer, and it is only enforceable if the state

The Supreme Courts Approval of Using the Spending

See id. at 502.

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Many of the limitations on Congresss use of the Spending Clause were

REV. 1197, 1208 n.35 (2004).

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safe interstate travel by means of safe national highways was reasonably

McCracken, 357 U.S. 275, 295 (1958).

Dole, 483 U.S. at 208-09.

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true focus of the constitutional limitation is preventing Congress from

Critics of recent Spending Clause precedent argue that these

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requirement, where critics desire greater scrutiny to provide a tighter

National Minimum Drinking Age Act

Soon after the Commission was formed, it began recommending the

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this evidence, Congress took the Committees recommendations and

See National Minimum Drinking Age Act, 23 U.S.C. 158 (2006).

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146 CONG. REC. 13,948 (statement of Sen. DeWine).

NATL HIGHWAY TRAFFIC SAFETY ADMIN., supra note 7.

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The easy approach does not allow defendants to be sentenced to more

Id. 630A(b), 631, 4205(b)(5).

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statutory sentencing provisions.111 Additionally, weak sentencing statutes

See, e.g., TENN. CODE ANN. 39-13-218 (2010).

R.I. GEN. LAWS 31-27-2.2(b)(1)(i).

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