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When a Signed Waiver of Counsel May Not Be Sufficient to Enhance an OVI to a Felony With felony OVI arrests on the rise, practitioners need to look in depth at each client’s prior OVI convictions to…

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Two Strikes and You’re Out! Commercial Driver’s License and a second-offense OVI = Disqualification for life The intersection of Commercial Driver’s License (CDL) law and…

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Two Strikes and You’re Out!

Date:May 21, 2012 Posted By: James Publishing

Commercial Driver’s License and a second-offense OVI = Disqualification for life

The intersection of Commercial Driver’s License (CDL) law and OVI law is a tangled web for OVI practitioners. The law treats the CDL holder to a much higher burden than that of the ordinary driver—even when the CDL holder is not behind his “big-rig.”

A CDL holder does not have to be driving a commercial vehicle under the influence to trigger a suspension of his CDL. Under Ohio law, if a CDL holder is on his riding lawn mower (on his own private property), while consuming a few beers—he could get an OVI. Even an OVI on a riding lawnmower would produce devastating employment consequences for a CDL holder.

Upon refusal of a chemical test, or upon a prohibited concentration of a chemical test—a CDL permit holder automatically loses his CDL for one year—period. Regardless if the CDL holder is driving a commercial vehicle, a private vehicle, or a lawn mower. R.C. 4506.16 (D)(1).

Moreover, the CDL holder cannot get CDL driving privileges—by statute! R.C. 4506.161. Thus, a CDL permit holder loses his OCCUPATION for one year—without any CDL driving privileges, upon ARREST on a first-offense OVI.

In contrast, a traveling salesman, who must also drive for work, but does not operate a CDL, gets driving privileges to and from home, work, and sales calls in 15 days if he helped the officer by giving a blood, breath, or urine sample when requested. At most, the traveling salesman must wait 30 days for driving privileges if he refused a chemical test.

Now, hypothetically speaking, consider that the CDL holder is convicted of his first offense OVI, and gets his license back. He can no longer get convicted of an OVI or have a refusal of a breath test for the rest of his life!

Now consider a CDL holder that gets his permit back after a first offense OVI. If the CDL holder had a cold, and took some cold medicine—with a small but measurable amount of alcohol in it, he may lose his CDL for life if arrested for OVI as of September 30, 2005—even if not behind a commercial vehicle. R.C. 4506.16 (F)(2).

Herein lays a complicated defense from an OVI practitioner’s standpoint. How do we keep our CDL holders on the road when they have more than one hiccup in life?

The answer is that although the CDL driver has many more steps to take to have CDL privileges restored—there are many requirements that must be met for the CDL suspension to be valid in the first place. Thus, more room for defense strategy.

First, the police officers must read the proper consequences to a CDL holder from the 2255 form, which includes specific advice for CDL holders. R.C. 4506.17 (C). And, many police officers do not realize that the advice for CDL is applicable when the offender was operating an ordinary vehicle—not just a commercial vehicle. Accordingly the Administrative License Suspension (ALS) is improperly executed many times, because the officer fails to read the offender the pertinent sections on the BMV 2255 form. Appealing the ALS for failure to read the specific consequences and other procedural defects may result in a dismissal of the ALS – which will allow the offender to get back to work.

Additionally, if there are defects in the imposition of the ALS, filing an immediate “stay” of the ALS may be necessary to avoid due process violations to an offender prior to an ALS hearing (i.e. immediate loss of CDL driving employment).

Furthermore, all traditional OVI defenses will come to play related to the stop, including: lack of reasonable suspicion for a continued detention and/or lack of reasonable grounds to arrest.

But even assuming that those defenses cannot succeed, this can set the stage for a plea to an OVI “(A)(1)” section under a city ordinance instead of the state code section (R.C. 4511.19). The benefit is that a plea to an OVI under a city ordinance many times will not trigger a lifetime disqualification of the CDL, due to improper language in the Revised Code. This reading of the code is not only the authors, but has been the reading of the Bureau of Motor Vehicles. The BMV has acknowledged this, and has set aside disqualifications and issued reinstatements of CDL’s when appealed.

Prosecutors usually do not oppose a plea to a city ordinance because the state will end up with a conviction for OVI. But, be careful, because one cannot plead to the “per se” section (prohibited concentration) of the city code, for that would likely trigger the per se level prohibition under 4506.16 (D)(1)—which would lead to lifetime disqualification on a second offense.

With a second offense, although the Court may suspend a CDL holder’s license on a city ordinance OVI, and the defendant’s ability to drive during the suspension is gone—the lifetime disqualification on a second offense OVI can be avoided through appeal to the BMV.

Also, the defendant may apply for a regular license and then seek limited driving privileges as in an ordinary case. Although he will not be able to have privileges to operate a commercial vehicle, he can often work at the dock or in some other phase of the packing or distribution division without need for the CDL. This will save the defendant’s job in some instances. But, most important, it can save a disqualifying offense that triggers a lifetime disqualification of the CDL.

The sanctions for OVI have more overwhelming impacts on the commercial driver and his family than others with equally serious professions. Does Ohio law suspend the right to practice medicine or suspend a teacher’s certificate if one gets convicted for OVI? Of course not! Additionally, we have already seen the enforcement of driver’s license suspensions for other unrelated matters as in the child support department. And, under a Child Support Suspension—no CDL privileges!

The state is using the driver’s license as an unequal punishment in its application. Thus, the OVI practitioner must be aware of the nuances of the CDL law not only to keep clients out of jail—but also to prevent permanent disqualification of clients’ occupations.

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Trial Strategy
Client Testimony
Cross-Examination of the Arresting Officer on Field Sobriety Tests
Closing Arguments
Frequently Asked Questions