Defending the CDL Holder for DUI

After a DUI arrest in a commercial vehicle or a personal vehicle (if the driver is a CDL holder), the arresting officer will read:

• the regular implied consent warning that applies to all drivers; and
• a special implied consent warning for any Commercial Driver License (CDL) holder.

The rules are complicated and officers in the field often make mistakes when it comes to advising a commercial driver or CDL driver about these special rules. Because a DUI in a commercial vehicle or CDL holder is less common, the arresting officer might forget to read both implied consent warnings or make other fatal mistakes.

Just like for a non-CDL holder, after the DUI arrest and notice of suspension and disqualification, you only have ten (10) days to request a formal hearing to contest both the suspension of your driver’s license and the disqualification of your CDL.

When a CDL holder is accused of DUI, they need an experienced attorney who can fight:

• the administrative suspension of the driving privileges at the DHSMV;
• the administrative disqualification of the CDL at the DHSMV; and
• the criminal case in the courtroom.

DUI Attorney for a CDL Holder in Tampa, FL

Call a DUI attorney experienced in representing the CDL holder or person driving a commercial vehicle at the Sammis Law Firm. We represent the CDL holder in DUI cases, other criminal traffic cases, and civil traffic violations. We represent CDL holders throughout Tampa, Hillsborough County, and the surrounding areas in the greater Tampa Bay area.

We fight DUI cases throughout Hillsborough County and the surrounding counties of Polk County, Hernando County, Pasco County, and Pinellas County, FL.

Our main office is located in downtown Tampa in Hillsborough County. We have additional offices in Clearwater and New Port Richey.

Our DUI defense attorneys can help you protect your driver’s license, your commercial driving privileges, and your career as a commercial driver. Let us put our experience to work for you.

Call (813) 250-0500.

Special Implied Consent Warning for the CDL Holder

In addition to the implied consent warning required to administratively suspend the driver’s license, the arresting officer must also read a special implied consent warning that applies only to a driver holding a Commercial Driver License (CDL).

That warning provides:

Failure to submit to such a breath or urine test or both, will result in the suspension of your privileges to operate a commercial motor vehicle for a period of one year for a first refusal, or in the case of a second refusal, your privileges to operate a commercial motor vehicle will be disqualified permanently.

A refusal to submit to a chemical breath or urine test upon request of a law enforcement officer as provided in this section shall be admissible into evidence in any criminal proceeding.

Officers in the field often make mistakes when dealing with the CDL holder or the driver of a commercial motor vehicle during a DUI investigation.

Notice of Commercial Driver’s License (CDL) Disqualification in Florida

You will receive a notice of commercial driver’s license privilege disqualification under Florida Statute 322.64. The Commercial Vehicle Citation for a BAC of .04 or above is typically hand-written on the form for HSMV 78005.

The notice is issued under one of the following circumstances:

• Refusal to Submit to Testing: CDL holder or commercial motor vehicle operator did refuse to submit to a breath, blood or urine test authorized in Section 322.63 or 316.1932, F.S. Effective this date, your commercial driving privilege is disqualified for one year for the first offense or permanently if you have been previously disqualified under Section 322.64 F.S.

• Driving with an Unlawful Blood / Breath Alcohol Level (DUBAL) – CDL holder or commercial motor vehicle operator driving with unlawful blood or breath alcohol level of .08 or higher. Effective this date, your commercial driving privilege is disqualified for one year for the first offense or permanently if you have been previously disqualified under Section 322.64 F.S.

The notice will also indicate whether the driver’s license was surrendered and whether the driver is eligible for a permit. Unless the driver is otherwise ineligible, the notice shall serve as a temporary driver’s license and will expire at midnight on the 10th day following the date of this notice. This permit does not, however, authorize the operation of a commercial motor vehicle.

The notice also provides that the driver can demand a review of disqualification by the Department of Highway Safety and Motor Vehicles within 10 days of the date of this notice.

The notice is identified as form number HSMV 78005 (Rev. 07/2009). One copy is provided to the DHSMV Hearing Officer. The other copies are provided to the driver and the officer’s agency.

Notice is Issued for CDL or any Person DUI in a CMV

Under Section 322.64, F.S., these notices are to be issued only to a driver who:

• operates or is in actual physical control of a COMMERCIAL MOTOR VEHICLE who refuse to submit to a breath, blood or urine test authorized in s. 322.63, F.S., and NO citation is issued for a violation of s. 316.193, F.S. This notice may be issued together with a citation for a violation of s. 322.62, F.S.

• who hold a COMMERCIAL DRIVER LICENSE, and operates or is in actual physical control of a non-commercial motor vehicle with an unlawful breath or blood alcohol level of .08 or higher, and are issued a citation for a violation of s. 316.193, F.S.

The notice also requires the officer to provide a description of facts supporting officer’s belief that driver was operating or in actual physical control of a CMV with any alcohol, chemical substance, or controlled substance in his/her body, including any citation issued to the driver.

FINAL ORDER

This serves as a notice of final order of license disqualification effective on the date it was issued to you. You may request a formal or informal review of the disqualification as follows:

INFORMAL REVIEW: If you want the department to conduct an informal review, you must request such review at the location indicated on the reverse side. Your request must be submitted in writing within ten calendar days after the date of disqualification, and include your complete name, address, date of birth, driver license number, residence and work telephone numbers, date of issuance of notice of disqualification, and county where disqualification occurred. This review shall consist solely of an examination of the materials submitted by you and the law enforcement officer or correctional officer.

FORMAL REVIEW: If you want to be heard or present witnesses in regard to this disqualification, you must request a formal review at the location indicated on the reverse side. Your request must be submitted in writing within ten calendar days following the date of disqualification and include your complete name, address, date of birth, driver’s license number, residence and work telephone numbers, date of issuance of notice of disqualification, and county where the disqualification occurred.

If you need reasonable facility accommodations due to a disability to appear for a hearing, include this information in your request. You will be advised of the review hearing date.

As a result of the informal or formal review, the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the disqualification.

An appeal of the Hearing Officer’s decision may be initiated by filing a Petition for Writ of Certiorari to the Circuit Court within 30 calendar days of the order as specified in s. 322.31, F.S.

FAILURE TO REQUEST A REVIEW WITHIN THE 10-DAY PERIOD SHALL RESULT IN THE WAIVER OF YOUR RIGHT TO A REVIEW OF THE DISQUALIFICATION.

Demanding a Formal Review Hearing to Contest the CDL Disqualification

After a DUI arrest, the commercial driver with a commercial driver’s license (CDL) faces both a suspension of their driving privileges and the disqualification of their CDL.

Call a DUI defense attorney in Tampa, FL, at the Sammis Law Firm to find out why we always recommend demanding a formal review hearing to contest the suspension and disqualification.

You only have ten (10) days after the arrest to protect your driving privileges and your commercial driving privileges. We can help you demand a formal review hearing at the Tampa Bureau of Administration Reviews (BAR).

During a Formal Review Hearing to contest the administrative disqualification of the CDL, the hearing is conducted under Chapter 15-A-6, Florida Administrative Code, Section 322.2615, and section 322.64 of the Florida Statutes.

If the CDL holder is accused of refusing to submit to a chemical test of his breath, blood, or urine, then in addition to being read the implied consent warning, the CDL holder must be told that as a Commercial License Holder or Commercial Motor Vehicle operator, if you refuse to submit to a chemical test, you will be disqualified for a one year period in the case of a first refusal or permanently if previously disqualified under section 322.64, F.S.

At these hearings, you can serve a subpoena on the arresting officer that issued the notice of the CDL disqualification after the DUI arrest. You can also serve a subpoena on other witnesses in the case including the stop officer, any civilian witnesses, the breath test operator, or any other people named in the police reports submitted to the DHSMV.

At the formal review hearing, the driver or his attorney is also allowed to present any evidence showing that the driver was not the holder of a commercial driver license (CDL) and/or was not operating a commercial motor vehicle at the time he was suspended and disqualified.

CDL Disqualification Formal Review Hearing

For the CDL disqualification formal review hearing, the hearing officer will refer to the clerical process when scheduling the formal or informal review for disqualification. If eligible for the 42-day permit, the driver must be downgraded to a 42-day Class E temporary permit restricted to business purposes only, effective when the request is received in the office.

When a CMV operator is disqualified and arrested for a violation of section 316.193, Florida Statutes, the reviews will be conducted as one using the appropriate script.

Sustaining a CDL Disqualification: If the hearing officer’s decision is to sustain the disqualification, the hearing officer will ensure that the final order used includes the CDL designation in the title. The hearing officer will Code FDLIS under the current coding guidelines.

If the driver fails to appear for a formal disqualification review, the hearing officer will code the driver record the same as for a standard administrative review. The disqualification will be invalidated if the arresting officer or breath test technician fails to appear without prior notification.

Invalidating a CDL Disqualification: An invalidation of a disqualification does not automatically mandate the invalidation of a corresponding suspension under section 322.2615, Florida Statutes. If the administrative suspension under section 322.2615 Florida Statutes is invalidated, the corresponding disqualification may or may not also be set aside.

When an administrative suspension for refusal or DUBAL is added to the driving record of a CDL holder, it generates a “conviction connector.” If the administrative suspension is invalidated, the “conviction connector” must be removed from the driving record.

Definition of Commercial Motor Vehicles

The term “Commercial Motor Vehicle” is defined in Section 316.003(66), Florida Statutes. Florida law provides:

• Violations committed by drivers of commercial motor vehicles shall be enforced in the same manner as for other drivers.

• Since most commercial motor vehicles require greater stopping distance, special attention should be given to violations involving excessive speed and following too closely.

• In cases involving serious equipment violations, a trooper with the Florida Highway Patrol may request the assistance of a Commercial Vehicle Enforcement (CVE) Trooper, if one is available.

• Members should ensure that the driver possesses the proper classification of a commercial driver license and that any required endorsements have been obtained.

• Alcohol or drug use violations:

• • When the driver of a commercial motor vehicle is charged with a violation of Section 316.193, Florida Statutes, the driver will be processed under standard DUI arrest procedures.

• • Under Section 322.63, Florida Statutes, the driver of a commercial motor vehicle can be required to submit to an approved Portable Breath Test (PBT) or chemical test anytime a member has reasonable suspicion to believe that the driver has any alcohol, chemical substance, or controlled substance in their body.

• • • If the PBT (Refer to 17.06.06(C)(1)(j) for Operation of PBT Instruments) or chemical test results indicate a blood alcohol level greater than 0.00 but less than 0.08, the driver will be issued a UTC for a violation of Sections 322.62(1) or 322.62(2)(b), Florida Statutes.
    • In addition, the driver will be placed out of service for a period of 24 hours.
    • If the driver is not being charged under Section 316.193, Florida Statutes, and has a breath alcohol level of 0.04 or higher or refuses to submit to a PBT or chemical test, he/she will be placed out of service for a period of 24 hours.
    • A Notice of Commercial Driver’s License/Privilege Disqualification (HSMV 78005) will be completed and forwarded to the appropriate DHSMV, Bureau of Administrative Review Hearing Office along with other required documentation within five (5) calendar days.
    • A UTC should be issued for a violation of Section 322.62(1), Florida Statutes.
    • Being placed out of service pursuant to Section 322.62, Florida Statutes, does not prohibit the driver from driving a noncommercial motor vehicle during the 24-hour period.

Federal Law for DUI in a Commercial Motor Vehicle

Federal law proscribes the operation of a commercial motor vehicle with more than 0.04 percent of blood alcohol (49 U.S.C. § 31310(a)) and includes provisions to induce state law compliance:

“To avoid having amounts withheld from apportionment under section 31314 of this title, a State shall comply with the following requirements: …

(3) The State shall have in effect and enforce a law providing that an individual with a blood alcohol … level at or above [0.04 percent] … when operating a commercial motor vehicle is deemed to be driving under the influence of alcohol.”

Id., § 31311(a).

Additional Resources

Attorneys for the Commercial Driver’s License (CDL) Holder – Learn more about enhanced direct and collateral consequences for civil traffic violations and criminal traffic infractions. Florida law provides for a sixty (60) day disqualification for two (2) traffic violations within three years. You will be subject to a disqualification for one-hundred and twenty (120) days for three (3) traffic violations within three years. You face a longer period of a disqualification after a conviction for a more serious qualifying conviction. Find information on penalties for a CDL driver who is arrested for DUI.

This article was last updated on Friday, January 7, 2022.