When you are arrested for a drinking and driving (DWI), there are two separate tracks – a criminal track and an administrative track. The criminal track concerns fines, penalties, and potential jail time while the administrative track deals with the suspension of your driver’s license. The suspension of a driver’s license always presents a difficult situation, but this is especially true if your job requires you to operate a commercial motor vehicle or you have a Class A, B, or C Commercial Driver’s License (CDL).
CDL AND A DWI ARREST
The consequences of a DWI arrest and conviction are more severe if you have a CDL. The consequences depend on a number of facts such as the nature of the offense and the cargo you were transporting at the time of your arrest for DWI.
Your CDL can be disqualified for one (1) year if for the first time reported on your driving record, you: refuse the test, or submit to the test and the blood alcohol concentration (BAC) results show a concentration of above .04% or above. For reference the BAC requirement for non-commercial licenses is .08% or above. If you were using your CDL while transporting any hazardous materials your CDL can be disqualified for three (3) years if you refuse the test or submit to the test and the BAC results show a concentration of .04% and above.
Your CDL can be disqualified for life if, for the second time reported on your driving record, you refuse the test or submit to the test and the results indicate a BAC of .04% or above.
REQUESTING AN ADMINISTRATIVE HEARING IF YOU REFUSED TO SUBMIT TO A BAC TEST
Although an officer will seize your CDL at the scene if you refuse a BAC at the scene of arrest, you will still be granted a temporary license, which has the full force and effect of a full license, until a determination is made at the administrative hearing. However, this administrative hearing must be timely requested. The requirements for the administrative hearing are as follows:
- The request for the administrative hearing must be made in writing.
- The request for the administrative hearing must be postmarked or received at the Office of Motor Vehicles within 30 calendar days from the date of your arrest.
If you fail to request an administrative hearing in accordance with the rules, the suspension of your CDL will automatically be enforced.
WHAT IS THE ADMINISTRATIVE HEARING ABOUT – AND DO I HAVE A RIGHT TO CHALLENGE THE SUSPENSION OF MY DRIVER’S LICENSE
The administrative hearing is not for the purpose of obtaining a hardship license. Rather, you must present facts and evidence on your behalf. The facts and evidence concern the following areas of the law:
- Whether law enforcement had reasonable grounds to believe you were driving or had been in control of a motor vehicle while under the influence of alcoholic beverages and/or any abused or illegal controlled dangerous substance.
- Whether you were placed under arrest.
- Whether you were warned by law enforcement of the consequences of your submission or refusal of the BAC and whether you were advised of your constitutional rights.
- Whether you voluntarily submitted to an approved chemical test and whether the test resulted in certain BAC levels.
- Whether you refused to submit to the chemical test upon request of the officer.
- Such additional matters that may relate to the reasonableness of a suspension of your license.
If you want a witness to appear at the administrative hearing, you must issue a subpoena for their attendance. However, La. R.S. 32:668(A) provides that no law enforcement officer shall be compelled to appear and testify at an administrative hearing. That’s right – neither you nor your lawyer can require the officer who arrested you to be present at the administrative hearing.
The administrative hearing is critical, because if you do not prevail at the administrative hearing, your CDL will be suspended for the time periods discussed earlier in this article. Administrative hearings are very difficult, especially when the officer cannot be compelled to testify. This is when it becomes helpful to have a lawyer.
For example, the law provides, in order to “operate” a motor vehicle, under the DWI law, the person must have exercised some control or manipulation over the vehicle, such as steering, backing, or any physical handling of the controls for the purpose of putting the car in motion. In one case, a person was found sitting in the driver’s seat of their vehicle while parked in front of their home, however, the vehicle was still running. The court found this insufficient to support a DWI conviction because there was no evidence the person was in the process of “operating” their vehicle.
THE TWO SEPARATE TRACKS
Even if the DWI charges are dropped against you in criminal court, you can still lose your license privileges at the administrative hearing. You must remember, there are two separate tracks. Whether you can prevail at an administrative hearing and/or the criminal hearing depends on many facts.
Most of our clients who come to us with a DWI arrest who carry CDLs, have very clear missions. First, they want to know if the arrest was valid in the first place and what they can do to get their license back so they can get back to earning a living. If an arrest was not properly conducted, there may be legal grounds to challenge the suspension and disqualification of your CDL. There may also be potential to have the case refused by the district attorney and if the case is refused at the outset, it would be as if the arrest was never made and your record will be kept clear.
At the Cardone Law Firm, we handle DWI criminal cases and the administrative hearing process for our clients. We also provide consultation pertaining to expungement, and requirements that you may be obligated to comply with in your employee handbook pertaining to a DWI arrest if you hold a CDL. All of our consultations are free. For your free DWI consultation, call Hannah Salter or Cliff Cardone at 504-522-3333.