Commercial Drivers License and DUI in Virginia
While there are very stringent rules for DUI/DWI, these rules vary when one holds a commercial driver’s license. When one holds such a license it is unlawful to drive or operate a motor vehicle with any trace of alcohol in their system. One driving with any alcohol in their blood shall be guilty of a traffic infraction. The commissioner shall revoke the license of anyone operating or driving a commercial motor vehicle has a BAC at or above a 0.08, when they are presumed to be under the influence of alcohol, when under the influence of any narcotic drug or other self-administered intoxicants, when such person is under the influence of any combination of drugs and alcohol to such a degree that it is not safe for them to drive or operate a motor vehicle, and finally, when such person has a blood concentration of these substances at or above these levels: (i) 0.02 milligrams of cocaine per liter, (ii) 0.1 milligrams of methamphetamine per liter, (iii) 0.01 milligrams of phenclyclidine per liter, (iv) 0.1 milligrams of 3,4-methylenedioxymethanphetamine. It shall also be unlawful, but a lesser offense for someone to drive or operate a commercial motor vehicle with a BAC of 0.04 or higher.
Once one has been stopped for suspected DUI/DWI while driving or operating a commercial motor vehicle the officer will ask for a breath test. This breath test and its results may not be used as evidence in a criminal prosecution; they may only be used as the basis to charge the driver with DUI/DWI. If one refuses this breath test they shall be subject to the refusal statutes. When driving or operating a commercial motor vehicle in the state of Virginia one has consented to a blood or breath test upon being arrested for DUI/DWI; these tests must be administered within two hours of the arrest. When such a test reveals unlawful levels of alcohol, drugs or any combination of the two they are to go before a magistrate. If this magistrate decides that there is probable cause that the accused was in violation of the DUI/DWI statute the magistrate will issue an order prohibiting the accused from driving or operating a commercial motor vehicle for a 24-hour period. This order must be sent to the DMV within seven days of being issued.
If the accused has been arrested for DUI/DWI there are is a process which the officer must follow. The officer must inform the accused: (1) that there is an informed consent law in the state and that by driving on highways in the state they have impliedly consented to a chemical test upon arrest for DUI/DWI, (2) that a finding of unreasonable refusal could be admitted as evidence in a trial, and (3) that failure to consent to such a test may result in an issuance of a 24 hour suspension of commercial license called an out-of-service order or disqualification of their commercial license, then the accused refuses a chemical test the officer must take them to a magistrate. The magistrate must then inform the accused (1) of the law regarding the collecting of samples, (2) that an unreasonable refusal may be used as evidence at trial, and (3) the sanctions for refusal. If, after that the accused again declares his refusal in writing on a Supreme Court approved form, or refuses to fails to put it in writing and such refusal is certified as prescribed then no blood shall be taken although the accused may request a sample at a later time. If the magistrate finds probable cause of an unreasonable refusal an out-of-service order will be issued and shall issue a warrant or summons charging the accused with a violation of the implied consent statute. This warrant must have attached the form which was signed by the accused. The court will then set a date for the trial and this declaration shall be evidence that the defendant unreasonably refused, but this does not prohibit the defendant from bringing up a reasonable basis for the refusal.
The procedure for the drawing of blood samples are the same as the procedure for blood samples taken from non-commercial drivers: it must be drawn by someone approved by the court, the area must be cleaned with an approved anti-septic, the blood must be drawn with a needle sterilized by an approved system or a brand new needle. The blood samples must then be transferred in a container approved by the Department of Forensic Science. Once the samples reach the Department they must be checked in and processed. Once the samples are processed the results must be sent in the approved container with the label containing the accused information to assure security of the samples. At trial, substantial compliance shall be sufficient; therefore, failing to following any of the steps will not in itself be enough to find the defendant guilty, but it will weigh against the rest of the evidence in the case. The defendant does have to right to introduce evidence of non-compliance.
When one has been found guilty of DUI/DWI while driving a commercial motor vehicle the penalties vary from the penalties of those driving or operating a non-commercial motor vehicle. Any person who is in violation of the DUI/DWI statute is guilty of a Class 1 misdemeanor. Any person who commits a second offense within less than five years shall be fined between $200 and $2,500 and a jail sentence between one month and one year. Five days of this jail sentence is absolutely mandatory. When someone is found guilty of a second offense between five and ten years the fine and the jail sentence are the same as when a second offense is committed within less than five years. Any conviction of a third offense within ten years shall be fined between $500 and $2,500 and a jail sentence between two months and one year. When the third offense is within less than five years thirty days of the jail sentence must be served, when the third offense is between five to ten years the mandatory jail sentence is ten day. When someone is convicted of the lesser included offense of driving with a BAC of 0.04 they are guilty of a Class 3 misdemeanor.
Once the blood or breath test has been performed and the magistrate has order the 24-hour suspension there will be a trial. If the defendant is convicted of DUI/DWI the commissioner shall suspend the defendant’s license for a period of one year. Also, if there was an unreasonable refusal to taking the blood or breath test after the arrest was made the commissioner shall suspend ones license for a period of one year. And as of September 30, 2005 one convicted of a DUI/DWI or refusal of a chemical test for BAC while driving or operating a non-commercial motor vehicle may have their commercial license suspended for up to one year, so long as at the time of the conviction that the accused held a commercial license.
The commissioner also has the right to revoke a commercial license permanently when the holder of a commercial license is convicted of two or more DUI/DWI offenses, refusals, or a combination of the two if the two convictions arise out of more than one occurrence. If, however, there are two or more offenses arising out of the same incident the suspensions will run consecutively and not concurrently. And in some cases, if allowed by the Department, the lifetime suspension may be limited to ten years. It is also important to keep in mind that these suspensions apply only to the commercial license; all the suspensions placed on the accused’s non-commercial license also remain in place.
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