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Fiandach & Fiandach (Rochester NY)

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Commercial Driver's Licenses

February 13, 2008

Two issues ago we took a look at one of the more perplexing problems to confront the practitioner, the effects of the Interstate Compact. This week we look at an area which can be equally bewildering, Commercial Driver's Licenses.

Much of the difficulty which can arise in this area stems from the rather diffuse territory from which the controlling law stems. A good grasp of commercial issues requires a working relationship with Federal and State provisions as well as the ever present commercial per se statutes that exist within Vehicle and Traffic Law ' 1192.

Since New York's provisions relating to commercial licenses find their origins in Federal enactments, a brief look at these all encompassing provisions is in order. Our review commences at 49 USC ' 31308. It is this section which creates the Federally mandated Commercial Driver's License. In pertinent part, it sets forth that:

After consultation with the States, the Secretary of Transportation shall prescribe regulations on minimum uniform standards for the issuance of commercial drivers' licenses by the States and for information to be contained on each of the licenses. The standards shall require at a minimum thatC

 

(1) an individual issued a commercial driver's license pass written and driving tests for the operation of a commercial motor vehicle that comply with the minimum standards prescribed by the Secretary under section 31305(a) of this title;

 

(2) the license be tamper proof to the maximum extent practicable; and

 

(3) the license containC

 

(A) the name and address of the individual issued the license and a physical description of the individual;

 

(B) the social security account number or other number or information the Secretary decides is appropriate to identify the individual;

 


(C) the class or type of commercial motor vehicle the individual is authorized to operate under the license;

 

(D) the name of the State that issued the license; and

 

(E) the dates between which the license is valid.

 

Of practical significance is 49 USC ' 31301. This is the definitional section for the chapter entitled Commercial Motor Vehicle Operators. Of concern to our discussion today are subparagraphs three, four, six and twelve. These provide that:

(3) commercial driver's license means a license issued by a State to an individual authorizing the individual to operate a class of commercial motor vehicles.

 

(4) commercial motor vehicle means a motor vehicle used in commerce to transport passengers or property thatnn

 

(A) has a gross vehicle weight rating of at least 26,001 pounds or a lesser gross vehicle weight rating the Secretary of Transportation prescribes by regulation, but not less than a gross vehicle weight rating of 10,001 pounds;

 

(B) is designed to transport at least 16 passengers including the driver; or

 

(C) is used to transport material found by the Secretary to be hazardous under section 5103 of this title.

 

 

It should be noted that subdivision (C) contains various exceptions that may or may not be relevant depending upon the circumstances of your case. Excluded from the grasp of commercial motor vehicles are those which:

(I) the vehicle does not satisfy the weight requirements of subclause (A) of this clause;

 


(ii) the vehicle transporting material listed as hazardous under section 306(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 USC ' 9656(a)) and not otherwise regulated by the Secretary or transporting a consumer commodity or limited quantity of hazardous material as defined in section 171.8 of title 49, Code of Federal Regulations; and

 

(iii) the Secretary does not deny the application of this exception to the vehicle (individually or as part of a class of motor vehicles) in the interest of safety.

 

* * *

 

(12) serious traffic violation meansC

 

(A) excessive speeding, as defined by the Secretary by regulation;

 

(B) reckless driving, as defined under State or local law;

 

(C) a violation of a State or local law on motor vehicle traffic control (except a parking violation) and involving a fatality; and

 

(D) any other similar violation of a State or local law on motor vehicle traffic control (except a parking violation) that the Secretary designates by regulation as serious.

 


The foregoing having been said, let's look at those provisions which may prove dispositive in resolving a situation where the commercial driver you represent has been charged with an alcohol related operating offense. 49 USC ' 31310 instructs the State as to the essential prohibitions and sanctions. As a result of this section, an individual is disqualified from possessing a commercial driver's license for at least one year, and possibly longer when he or she commits a first violation of driving a commercial motor vehicle under the influence of alcohol or a controlled substance; commits a first violation of leaving the scene of an accident involving a commercial motor vehicle operated by the individual; or (with certain exceptions) uses a commercial motor vehicle in committing a felony. For the purpose of this section, under the influence is defined as having a blood alcohol concentration level at or above which an individual when operating a commercial motor vehicle is deemed to be driving under the influence of alcohol is .04 percent. It is important to note, however, that this reduced BAC applies only to the situation where a commercial vehicle, as earlier defined, is being operated. It is of no effect if the family auto is the means of transportation.

Far more onerous are the provisions of subdivision (C). This section requires the Secretary of the Treasury to revoke for life the commercial privileges of a commercial driver who (A) commits more than one violation of driving a commercial motor vehicle under the influence of alcohol or a controlled substance; commits more than one violation of leaving the scene of an accident involving a commercial motor vehicle operated by the individual; uses a commercial motor vehicle in committing more than one felony arising out of different criminal episodes; or commits any combination of these single violations.

While the following is perhaps a gross oversimplification, placing the foregoing into proper perspective requires recognition of the following. There is no longer a Federal Commercial Driver's License. What the 1994 legislation did was to turn the matter of issuing commercial licenses to the States. The motorist now receives a single state driver's license. Even so, this does not mean that Federal action will not be taken as a result of a state court conviction. In the event that the commercial driver commits any one of the violations set out above, the information is reported to the commercial driver's license information system. While, as we will soon see, this act has little immediate effect for a New York motorist convicted in New York, for the out of state motorist, it means that the information will be made available to the commercial driver's home state who can thereafter take conforming action. It also means that if the home state has no corresponding legislation, the Secretary of the Treasury will have the power to impose the licensing sanctions which have been set forth above.


While, as we have said, there is no longer a nationwide Federal Commercial Driver's License, 49 USC ' 31311 mandates that Federal Highway Funds be withheld unless the State establishes, among other things, a law providing that an individual with a blood alcohol concentration level at or above the level established by section 31310(a) of this title when operating a commercial motor vehicle is deemed to be driving under the influence of alcohol,. thus enactment in New York of Vehicle and Traffic Law ' 1192 subdivisions (5) and (6). Even so, and this is essential stuff given the interstate nature of trucking, these provisions are not essential to the Federal mandate. Subdivision (5) reads:

5. Commercial motor vehicles: per se ‑ level I. Notwithstanding the provisions of section eleven hundred ninety‑five of this article, no person shall operate a commercial motor vehicle while such person has .04 of one per centum or more but not more than .07 of one per centum by weight of alcohol in the person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety‑four of this article; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section.

 

Subdivision (6) sets forth:

 

6. Commercial motor vehicles; per se ‑ level II. Notwithstanding the provisions of section eleven hundred ninety‑five of this article, no person shall operate a commercial motor vehicle while such person has more than .07 of one per centum but less than .10 of one percentum by weight of alcohol in the person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety‑four of this article; provided, however, nothing contained in this subdivision shall prohibit the imposition of a charge of a violation of subdivision one of this section.

 


To integrate the new commercial sanctions into the existing legislative scheme, entirely new subsections were added to Vehicle and Traffic Law ' 1193. Effective November 1, 1996, the criminal sanction for violating Vehicle and Traffic Law ' 1192(5) is found in Vehicle and Traffic Law ' 1193(d)(2). This statute can be extremely misleading and counsel must take great care! Confusion can arise over the fact that a violation of Vehicle and Traffic Law ' 1192(5) is defined as a traffic infraction. Do not be misled by this declaration into believing that the licensing penalty is identical to that imposed for a violation of Vehicle and Traffic Law ' 1192(1), Driving While Ability is Impaired. Although Vehicle and Traffic Law ' 1193(1)(d)(2) declares that it shall be a traffic infraction punishable as provided in paragraph (a) of this subdivision. The licensing penalty as set out in Vehicle and Traffic Law ' 1193(2)(b)(5)(I) is more severe than that which is established for a misdemeanor violation such as Vehicle and Traffic Law ' 1192(2). Section 1193(2)(b)(5)(I) mandates when the motorist is convicted of any subdivision of section eleven hundred ninety‑two and such violation was committed while the holder was operating a commercial motor vehicle and the holder is sentenced pursuant to subparagraph two of paragraph (d) of subdivision one the licensing sanction shall be one year. Thus, the penalty has been brought into line with the Federally required mandate. When the ' 1192(5) violation occurs while the commercial vehicle is hauling hazardous materials, the license shall be revoked for three years notwithstanding that the offense is defined as a traffic infraction.

There is also a strange twist to revocations when the revocation is for a conviction for Driving While Intoxicated, per se, level I. Notwithstanding the overlap with Vehicle and Traffic Law ' 1192(1), Driving While Ability is Impaired, Vehicle and Traffic Law ' 1193(2)(b)(11) sets forth that the revocation runs only to the commercial driving privileges. The section further provides that the commissioner shall immediately issue a license, other than a commercial driver's license, to such person provided that such person is otherwise eligible to receive such license and further provided that issuing a license to such person does not create a substantial traffic safety hazard.


When the conviction is for a violation of Vehicle and Traffic Law ' 1192(6), Commercial Vehicles, per se, Level II, criminal sentencing is also controlled by Vehicle and Traffic Law ' 1193(d)(2). The second section of this subdivision declares that operation of a commercial vehicle with a BAC of more than .07 but less than .10 shall be a misdemeanor. Unlike a violation of Vehicle and Traffic Law '' 1192(2), 1192(3) or 1192(4), however, the initial occurrence is punishable by a fine of not less than five hundred dollars nor more than fifteen hundred dollars or by a period of imprisonment not to exceed one hundred eighty days, or by both such fine and imprisonment. If, however, such conduct is repeated within five years of a conviction for Driving While Ability is Impaired, Driving While Intoxicated, Driving While Ability is Impaired by Drugs or Driving While Intoxicated, per se, level II, the second conviction is still a misdemeanor but is punishable by a fine of not less than five hundred dollars nor more than fifteen hundred dollars or by a period of imprisonment as provided in the Penal Law, or by both such fine and imprisonment. While it may be redundant, it is important to point out that a prior conviction for Driving While Intoxicated, per se, level I does not act as a predicate.

When the motorist is convicted of Vehicle and Traffic Law ' 1192(6) after having been previously convicted of two or more violations of Vehicle and Traffic Law ' 1192 subdivisions one, two, three, four or six within the preceding five years, he or she is guilty of a class E felony, which is punishable by a fine of not less than one thousand dollars nor more than five thousand dollars, or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment.

Licensing sanctions for Driving While Intoxicated, per se, level II falls within the purview of ' 1193(2)(b)(5) and therefore are initially identical to that had for Driving While Intoxicated, per se, level I.


One point we should make as we pass through per se level I and per se level II sentencing is that a plea bargain to simple Driving While Ability is Impaired (Vehicle and Traffic Law ' 1192[1]) may not be enough to avoid the imposition of the one-year revocation. We have been informed that if the charge was originally written for per se level I or per se level II and the Uniform Traffic Ticket (UTT) is filled out to indicate that the operator was convicted of simple Driving While Ability is Impaired, Albany will nonetheless impose the one year sentence mandated under Vehicle and Traffic Law ' 1193(2)(b)(5) when the UTT indicates that a commercial vehicle was being driven at the time of the offense. While we cannot be certain as to why, it may be that the rather unusual wording chosen by the Legislature in drafting subdivision (2)(b)(5) begs this outcome. Vehicle and Traffic Law ' 1193(2)(b)(5) provides that it is applicable when the holder is convicted of a violation of any subdivision of section eleven hundred ninety‑two of this article, such violation was committed while the holder was operating a commercial motor vehicle and the holder is sentenced pursuant to subparagraph two of paragraph (d) of subdivision one of this section. While the countervailing argument can be made that the motorist must be sentenced under ' 1193(1)(d)(2), by definition sentencing under this section mandates that, from a criminal standpoint, the motorist be sentenced as though he or she had been convicted of simple Driving While Ability is Impaired. Therefore, if the one year revocation is to be avoided altogether, it may be necessary to amend the UTT so as to remove any reference to the operation of a commercial vehicle at the time of the offense. This ministerial operation, as we will see, can also be of dispositive significance when lifetime revocation becomes an issue


While on the subject of plea bargaining, Vehicle and Traffic Law ' 1192(10) contains an interesting gem. As we well know, subdivision (10)(a) embodies the Legislative direction that when the charge before the Court is a violation of Vehicle and Traffic Law ' 1192 subdivisions (2), (3) or (4), the ultimate disposition must include a ' 1192 offense unless a review of the available evidence determines that the charge of a violation of this section is not warranted. Subdivision (10)(b) continues this Legislative policy in regard to commercial motor vehicles. Oddly, however, this section provides that when the charge laid before the court alleges a violation of subdivision one or six of this section while operating a commercial motor vehicle, any plea of guilty . . . must include at least a plea of guilty to the violation of the provisions of one of the subdivisions of this section. On its face, therefore, it seems that when the charge before the court is a violation of Vehicle and Traffic Law ' 1192(5), Commercial Vehicle, per se, level I, that an alternative non-1192 disposition may be had.

Another point worthy of note is that Vehicle and Traffic Law '' 1192(5) and 1192(6) clearly proscribe the operation of commercial motor vehicles with specified blood alcohol levels. Neither statute references operation with a commercial driver's license. Thus, the sanctions set forth above will apply irrespective of the type of license possessed at the time of operation provided that the motorist is operating a commercial motor vehicle as that term is defined by Vehicle and Traffic Law ' 510-a(4) et. seq.


Without question, the toughest sanction that can be imposed upon a commercial driver is permanent disqualification from operating a commercial motor vehicle. As presently written, the law is harsh and replete with land mines for unsuspecting counsel. If the motorist is convicted of any subdivision of ' 1192 while operating a commercial motor vehicle and has any prior conviction for any violation of ' 1192 or any prior finding of refusal to submit to a chemical test pursuant to ' 1194 while operating a commercial motor vehicle or any violation of ' 600(2) or has a prior conviction of any felony involving the use of a commercial motor vehicle pursuant to ' 510-a(a), he or she will be disqualified from operating a commercial motor vehicle for life. This lifetime prohibition may only be lifted after the passage of ten years provided the motorist has no additional alcohol related operating incidents, including a chemical test refusal. Waiver by the Commissioner will also require a showing that the motorist is not in need of alcohol or drug treatment or that he or she has satisfactorily completed a prescribed course of alcohol treatment and a certificate of relief from civil disabilities from the court where he or she was last convicted. In the event that the motorist has a third finding of refusal and/or conviction of any of the offenses which require a permanent commercial driver's license revocation, such permanent revocation may not be waived by the Commissioner under any circumstances whatsoever.

Next issue we'll look at provisions relating to school buses and special vehicles.



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