First Offense DWIs and Texas CDL Holders

Rick FairDWI, Texas CDLLeave a Comment

Texas CDL DWI

One question I’ve heard numerous times by Texas CDL (Commercial Drivers License) holders is the potential penalties and pitfalls associated with a DWI charge.  In this first article of a series regarding the potential criminal and civil liabilities for Texas CDL holders, I’ll discuss what may occur if a Texas CDL holder is arrested for their first DWI.  In addition to the criminal penalties that occur with DWI charges in Texas, drivers may have their CDL disqualified for a specific amount of time depending on whether they meet certain criteria under the Texas Transportation Code.

DWIs, Texas CDL Holders, and the Transportation Code

For instance, CDL holders who are charged with their first DWI or alcohol-related offense will have their CDL disqualified for at least one year.  Section 522.081 of the Texas Transportation Code indicates that the following alcohol and drug-related events trigger the one year CDL disqualification:

  1. On first conviction of driving a CMV (commercial motor vehicle) or non-CMV while under the influence of alcohol or a controlled substance;
  2. Driving a CMV while your BAC (blood alcohol concentration) is 0.04 or more.  [It’s important to note that this is HALF of the statutory 0.08 BAC for non-CDL holders];
  3. Driving a non-CMV while your BAC is 0.08 or more.
  4. Refusing to submit to a test to determine your BAC or to determine the presence of a controlled substance or drug in your body while driving either a CMV or non-CMV. [Once again, this sharply contrasts to the 180 day suspension for non-CDL holders under the Texas ALR (Administrative License Revocation) process.]

The disqualification period is enhanced to at least three years for first time alcohol offenses if a CDL holder is operating a CMV with a hazardous materials placard.  It’s also important to note that the Texas CDL disqualifications listed above are additional restrictions to the Texas ALR process that non-CDL holders encounter after an arrest for DWI in Texas.

Joe the Trucker Gets Pulled Over for DWI

So, let’s take a hypothetical, but plausible, scenario for a Texas CDL holder.  Let’s say that Joe is a truck driver and gets pulled over in his company’s CMV.  He refuses to submit to field sobriety testing and portable breathalyzer testing, but the officer feels he has enough probable cause to arrest Joe for DWI anyway.  Furthermore, let’s say that Joe refuses to take a breathalyzer test at the county jail after being warned of the consequences by the arresting officer.

After being arrested, the officer will take possession of Joe’s Texas CDL and issue Joe a temporary driving permit that expires 41 days after the date of issuance.  It’s important to note that this temporary permit allows Joe to continue driving a CMV, as Texas and the Federal Motor Carrier Safety Administration (FMCSA) consider the temporary permit as an extension or “receipt” of Joe’s actual Texas CDL seized by the arresting officer.  In other words, Joe can continue to drive a CMV until the temporary permit expires.

Joe and the ALR Hearing

After bonding out of jail, Joe will have exactly 15 days from his date of arrest (not date of release) to request a Texas ALR hearing to contest the disqualification of his CDL and the suspension of his Texas Driver’s License (DL).  Requesting an ALR hearing also delays the ALR sanctions, while continues to allow Joe to drive under the temporary permit (and still drive a CMV) while awaiting a hearing.

These hearings typically take a month or so to schedule.  If Joe doesn’t request an ALR hearing within 15 days of arrest, Joe’s DL will automatically be suspended for 180 days (for refusal to submit to BAC testing) and he will be disqualified from driving a CMV for a year (also, for refusal to submit to BAC testing).

Let’s say that Joe hires an attorney, requests an ALR hearing, and argues at the hearing that the Texas Department of Public Safety (DPS) did not prove the following by a preponderance of the evidence:

  1. That the officer had  reasonable suspicion to stop, or probable cause to arrest the driver;
  2. That probable cause existed that indicates that you were driving or in actual physical control of a vehicle in public place while intoxicated;
  3. That you were placed under arrest and were offered an opportunity to submit to a breath or blood test after being notified orally and in writing of the consequences of refusing or failing a breath or blood test, and;
  4. EITHER — a) That you refused to submit to breath or blood test, OR b) you failed a breath or blood test by registering a BAC of 0.08 or above per 210 liters of breath or 100ml of blood.

That last point is particularly important if Joe did decide to submit to a breath or blood test.  Let’s say that Joe’s BAC was tested at 0.06 and 0.05 at the jail.  Despite the fact that Joe may be under a BAC of 0.08 and can potentially avoid the 90 day suspension for driving a non-CMV, Joe will still lose his ability to drive a CMV for one year, if his BAC was 0.04 or above.

In other words, Joe’s attorney may be able to argue against the suspension against Joe’s standard DL, but Joe may still be disqualified from driving a CMV. I know, it’s sort of confusing, but it’s the small distinctions that matter in these cases.

With that important tangent aside, let’s get back to Joe’s case.  If his attorney successfully argued that the DPS did not prove the above elements, Joe’s license will not be suspended and he will be able to continue driving both a CMV and a non-CMV.

ALR hearings are essentially approached from two angles: 1) attacking the paperwork filed by the officer, or 2) if the paperwork is sufficient, attacking the officer’s reasonable suspicion and probable cause in person.  Winning at the ALR hearing is possible, particularly if the officer’s paper is insufficient and/or the officer does not show up for the hearing after being subpoenaed.

Even if Joe loses as the ALR hearing, the process is worth the effort, as Joe’s attorney will be able to cross-examine the officer and help build a defense for the criminal charge associated with Joe’s DWI.  Additionally, Joe’s attorney could appeal the ALR Hearing decision within 30 days of receiving Joe’s suspension/disqualification letter after the hearing.  If Joe decides to appeal and the DPS approves the request, the DPS will remove Joe’s suspension for 90  days.

Although Joe won’t be able to drive a CMV for a year after an unsuccessful ALR hearing, Joe can still request his attorney to draft a petition for an occupational driver’s license to drive a non-CMV under restricted circumstances if he finds work other than driving a CMV.  Again, it’s important to note that a Texas occupational driver’s license only allows Joe to drive a non-CMV and does not allow him to drive a CMV during the CDL disqualification period.

More Penalties Await

So, to sum everything up, here’s what Joe’s facing if arrested for his first DWI, refused a breath or blood test, wasn’t driving a CMV with a haz-mat placard, and loses his ALR hearing on both his DL and CDL:

  1. Joe’s Texas driver’s license will be suspended for 180 days (per Tex. Trans. Code Sec. 724.035)
  2. Joe will be disqualified from driving a CMV for 1 year (per Tex. Trans Code Sec. 522.081)
  3. Joe will be facing a Class B misdemeanor for the criminal DWI offense, which carries a minimum term of confinement of 3 days, a jail sentence of not more than 180 days and/or a fine of not more than $2,000.  (per Tex. Penal Code Sec. 49.04)

However, more penalties may await Joe according to the federal regulations under the Federal Motor Carrier Safety Administration (FMCSA).  Specifically, Joe may be subject to additional civil penalties up to $5,391 for violations of 49 C.F.R. Part 383 (which include alcohol-related offenses), according to the Penalty Schedule listed in Appendix B to 49 C.F.R. Part 386.  A violation under Part 383 would likely occur if Joe gets disqualified in Texas and attempts to continue driving a CMV in Texas, or drives in another state during the disqualification period.

And, this is barely scratching the surface on Joe’s lost earning potential if he’s a professional truck driver and loses his job.  Let’s also not forget the monthly costs for probation, additional costs for drug and alcohol testing, and alcohol education classes that Joe will likely be responsible for if he goes on probation (roughly 2 years on average) for the criminal charge.  Furthermore, Joe still has to pay the mandatory reinstatement fees required after the suspension (DL – 180 days) and disqualification (CDL – 1 year) periods.

Summary

In closing, I’m sure a majority of us have seen the billboards on I-35 showing the cost of a DWI in Texas.  In fact, back in 2011, the figure was around $17,000.  I’ve always found those numbers are slightly above average for Texans without CDLs charged with a first offense, especially in the Waco, Temple, Killeen area.  However, if the marketing professionals for the State really wanted to send a message regarding DWI sticker shock, they could take up an entire billboard laying out the additional costs and lost earning potential for CDL holders.

Overall, if you have a Texas CDL and get arrested for DWI, it’s important that you consider hiring an attorney, and hiring one as early as possible after your arrest due to the time sensitivity of the ALR Hearing process, especially if you do not feel comfortable requesting an ALR hearing on your own.

It’s also worth noting that the time period for requesting an ALR hearing will likely pass before you are approved and assigned to a court-appointed attorney, if you choose that route.  Furthermore, if you’re a CDL holder and charged with a DWI or DUI, it’s important to find an attorney who understands the Transportation Code’s additional disqualifications, so that they can put on the best defense at every phase of your case.

 

If you would like to discuss your DWI charge, call Fair & Fair, PLLC at (254) 230-9865 to schedule a free initial consultation with our Central Texas DWI lawyers.

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