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Administrative Per Se Hearing and the Commercial Driver

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How is a Commercial Driver affected by an APS Hearing at the DMV?

Any driver in the State of California, who holds a Commercial Driver License (CDL), has achieved a level of training, certification, and competence that far exceeds that of a regular “everyday” driver. Commercial drivers may operate semi tractor-trailer rigs, school buses or limousines. Often times, these professional drivers may be trusted to move large or hazardous materials, or even something as precious as school children. Because the actions of a commercial driver may have a very real impact on public safety, they are held to a higher set of standards that the average Class “C” driver. Whether they are driving a semi-truck or Volkswagen sedan, the holder of a commercial driver license is subject to more scrutiny and more severe penalties whenever they commit a traffic violation.

The California Department of Motor Vehicles (DMV) will seek to suspend, revoke, or disqualify a commercial driver license for a variety of reasons. The most common reasons for the DMV to suspend, revoke, or disqualify a commercial driver are:

  • Operating a commercial vehicle with a blood/alcohol concentration (BAC) of .04% or greater.
  • Operating any motor vehicle with a BAC of .08% or greater.
  • Refusing to submit to a chemical test of his or her blood or breath at the lawful request of a peace officer.
  • Operating a commercial vehicle with a suspended, revoked or disqualified commercial driver license.
  • Using a motor vehicle in the commission of any felony.
  • Leaving the scene of a collision involving a motor vehicle being operated by the driver.
  • Causing or contributing to a fatal or serious injury traffic collision.
  • Accumulating too many points as a result of moving violations or traffic collisions.
  • Transporting more than 10,000 pounds of dangerous fireworks.
  • Operating a commercial vehicle when manufacturing, distributing or dispensing a controlled substance.

In this chapter, we focus on the most common cause for commercial driver to lose their CDL. Without question, the single greatest cause of the DMV stripping a commercial driver license is the result of a DUI arrest.   If a commercial driver has been arrested for DUI and is found to have been driving a commercial vehicle with a BAC of .04% or greater, the DMV will be coming for his commercial driver license. What many people don’t understand however, is if that same commercial driver is arrested for DUI after driving ANY VEHICLE with a BAC of .08% or greater, the DMV will target his commercial driver license just the same. This means that a commercial driver could be enjoying a weekend with friends and get arrested for DUI while driving a motorcycle. He may be nowhere near a commercial vehicle, but can still completely lose his commercial driver license. This is a perfect example of the DMV holding commercial drivers to a higher standard.

If arrested for DUI the only way for a commercial driver to avoid the loss of their commercial driver license is to schedule, fight, and win an Administrative Per Se (APS) hearing before the California Department of Motor Vehicles. If the driver wins his APS hearing, his driver license is reinstated and this commercial endorsement remains safe (subject to the outcome of the separate court case). However, if the involved driver loses his APS hearing, he will be disqualified to operate a commercial vehicle.

 

Consequences of losing a 1st Offense APS Hearing

As with any California driver accused of DUI, a commercial driver is permitted to be represented at a DMV Administrative Per Se hearing by a DMV Defense Expert. All of the rules of evidence are the same as with any other driver and the commercial driver’s APS Hearing is conducted in a manner identical to any other driver. Where things get dicey is with the severity of penalties imposed on the commercial driver.

Assuming a commercial driver has suffered no prior DUI convictions or APS suspensions, he is subject to the penalties directed by section 15300(a) of the California Vehicle Code (CVC). This section of the Vehicle Code reads:

“A driver shall not operate a commercial motor vehicle for a period of one year if the driver is convicted of 23152, 23153, or refuses a chemical test at the request of a peace officer.”

This means that upon conviction of a 1st offense DUI or upon the loss of an APS Hearing, a person who holds a commercial driver license WILL BE “disqualified” to operate a commercial motor vehicle for a period of one year…… Period!

If the accused driver is willing to downgrade his driving privilege from a Class “A” driver license to a Class “C” driver license, he becomes eligible to drive Class “C” vehicles on a restricted privilege after serving 30 days of a hard suspension. If the commercial driver downgrades to the Class “C” driver license he is then eligible to re-apply for a commercial driver license after one year. At that point, the driver must begin the commercial driver license process from the very beginning.

If the accused driver prefers to “sit out” the entire year and not drive any motor vehicles, whatsoever, he is then eligible for a full reinstatement of his Class “A” driver license after filing proof of completing a DUI School, Proof of Filing an SR-22 Form, and Proof of Filing a $155 re-issuance fee. It goes without saying that most drivers prefer to “downgrade” to a Class “C” driver license and then reapply for their commercial license after the one-year period has passed.

HAZARDOUS MATERIAL ENHANCEMENT:

In addition to the one-year commercial disqualification that can follow a first offense DUI, if the disqualifying event occurred while the commercial driver was transporting “hazardous materials” the period of commercial disqualification is for three years.

California Vehicle Code (CVC) section 15300 (10) (b) reads:

If a violation listed in section 15300 occurred while transporting a hazardous material, the period specified in subdivision (a) shall be three years.

What are the consequences of losing a Multiple Offense APS Hearing?

As with all APS Hearings, the accused Commercial Driver is entitled to be represented by a DMV Defense Expert and to mount a vigorous defense in an attempt to win the APS Hearing. In 2008, the California Vehicle Code was amended to reflect a change in the law affecting commercial drivers who suffer multiple DUI offenses. For the purpose of commercial licensing, the DMV is not permitted to allege prior DUI convictions or APS suspensions occurring before September 1, 2005. However, as of January 1, 2008, all commercial drivers are subject to the provisions of California Vehicle Code (CVC) section 15302. CVC section 15302 reads:

“A driver shall not operate a commercial motor vehicle for the rest of his or her life if convicted of more than one violation of 23152, 23153 or if refusing to submit to a chemical test of his blood or breath at the request of a peace officer.”

So, let’s be clear. If you are the holder of a California commercial driver license who is arrested for suspicion of DUI; and if you have a prior DUI conviction or APS suspension that occurred AT ANY TIME after September 1, 2005, you must schedule, fight and win an APS hearing to prevent the disqualification of your commercial driver license. If you do not win your APS hearing, or if you are convicted in court of a subsequent count of DUI, you WILL BE disqualified to operate any commercial motor vehicle for the remainder of your life……….Period!

This is among the harshest penalties provided anywhere in the Vehicle Code. The DMV means business and they won’t bat an eye at shutting down your professional driving career for life.

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Can a Commercial Driver Win an Administrative Per Se (APS) Hearing?

Without question, an APS hearing can be one. The DMV Defense Experts at California Drivers Advocates have been fighting and winning APS hearings for commercial drivers for years.   There is no question that an APS Hearing is the most difficult of all the administrative hearings to win, but proper investigation of the facts and professional representation by a DMV Defense Expert can absolutely result in the DMV ruling in your favor.

There is also no question that if you don’t fight……… you can’t win. We have heard many stories of professional drivers who simply throw up their hands and resign themselves to losing their commercial driver license because they’ve been arrested for DUI. Don’t fall into this trap. While APS Hearings are very much “one-sided” and designed for failure, proper representation can turn the case around.

To overcome the abuse of an APS hearing, and to have any hope of keeping your commercial driver license intact, requires the knowledge and experience of a DMV Defense Expert. You simply have no chance of prevailing with the DMV on your own. The DMV Defense Experts at CDA include former police officers, former DMV hearing officers, investigators and forensic scientists. We have the experience. We have the training and the will to keep fighting. We understand that your career and your future may be at risk. We get it…..We understand and we’re ready to pull out all the stops to save your CDL.

When a commercial driver walks into the Driver Safety Office, there is an automatic presumption that you are guilty of the DUI offense and that you must be punished severely. Facing that process alone can utterly frustrating, demoralizing and depressing. However, if that same commercial driver walks in the door with a DMV Defense Expert from California Drivers Advocates (CDA), the DMV hearing officer’s attitude changes immediately. They know they are in for a fight and they’ll have to be at the top of their game to take your license.

An APS hearing for a commercial driver can be won, but there is no question there will be a battle. Because you’re a commercial driver, the DMV insists on holding you to a higher standard and intends to punish you more severely. Don’t let the DMV steal your future without a fight.

Call CDA Today…. We’re Ready to Help You Save Your Driving Career

No commercial driver holds a Class “A” driver license for fun. A commercial driver holds this level of professional licensure because, one way or another, he makes a living as a professional driver. If you’re reading this section of our website, it’s because you are a professional driver who is in jeopardy of losing a lot.   Don’t listen to nay sayers. Don’t let the DMV dissuade you from your rights; and most importantly, DON’T GIVE UP THE FIGHT!!

If your commercial driver license is important to you, call us today. We understand and we’ll go the extra mile to keep you driving.

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