As DUI lawyers in Charleston, South Carolina, we represent commercial vehicle drivers who are accused of driving under the influence. If you have a commercial driver’s license (CDL) and you are charged with a DUI, things are a bit more complicated than other DUI’s. We know that the inability to drive can ruin a commercial driver’s finances, whether you’re from South Carolina or have a CDL from another state. So, we’ve written this article to explain the effect DUI and other offenses have on your CDL. Also, this article explains the most important things you need to know about a commercial DUI in South Carolina.
What Happens if a CDL Holder Gets a DUI in South Carolina?
The Federal Motor Carrier Safety Administration (FMCSA) is the federal agency that monitors how State Driver’s License Agencies (SDLA) enforce federal laws when CDL holders violate alcohol and DUI laws. The FMCSA implements regulations that each state follows that impose penalties on CDL (commercial driver’s license) holders who are accused of driving under the influence (DUI). States have different names for this type of charge, but the most common names are:
- DUI (Driving Under the Influence)
- DUAC (Driving With an Unlawful Alcohol Concentration)
- OWI (Operating While Intoxicated)
- DWI (Driving While Intoxicated)
- OUI (Operating Under the Influence)
- OVI (Operating a Vehicle Impaired)
For consistency, this article will use the term DUI. South Carolina drivers who possess a Commercial Driver’s License (CDL) and who face a DUI or other violations are affected differently and more severely than non-commercial drivers. Please note that we use the term “disqualified” instead of “suspended” because the holder of a CDL may be eligible to drive a non-commercial vehicle even if he or she lost CDL privileges, depending on the situation.
If a CDL holder is arrested for DUI in South Carolina, he or she is disqualified from driving a commercial motor vehicle (CMV) for one (1) year for:
- Refusing a breath, urine, or blood test when driving any motor vehicle;
- Giving a breath sample (BAC) of 0.04% or more while driving a motor vehicle; or
- Being convicted of DUI, DUAC, or a similar offense while driving any motor vehicle.
If you were driving hazardous materials during the DUI offense, you are disqualified for three (3) years instead of one (1). If you’re convicted twice for DUI, you will lose your CDL permanently. Under South Carolina and federal law, a CMV includes:
- Vehicles that have a gross vehicle weight rating (GVWR) of twenty-six thousand one or more pounds;
- Vehicles that are designed to transport sixteen or more persons, including the driver; or
- Vehicles transporting hazardous materials that are required to be placarded per 49 CFR Part 172, subpart F.
The most common examples of CMV’s are:
- Tractor trailers
- Double trailers
- Triple trailers
- Buses (16 people or more, including the driver)
- Vans (16 people or more, including the driver)
- Certain types of farming or construction vehicles (but there may be exceptions)
- Some specialty vehicles like garbage trucks and street sweepers
What Other Violations May Disqualify a CDL in South Carolina?
While discussing DUIs and CDLs, we also want to describe other violations that can cause you to lose your commercial driving privileges. There are other criminal convictions listed in the federal regulations that cause problems other than DUI-related offenses.
One-Year Disqualifications for 1st Offenses – A CDL holder is disqualified from driving a commercial vehicle for one year if the driver:
- Leaves the scene of an accident.
- Uses a motor vehicle in the commission of a felony.
- Drives a motor vehicle while his or her license is suspended, canceled, or revoked for a violation committed while operating a commercial motor vehicle.
- Causes a fatality through the negligent operation of a commercial vehicle.
- Uses a vehicle to distribute or manufacture drugs.
- Uses a vehicle for human trafficking.
Lifetime Disqualification for Second Offenses – If a second offense of these violations happens, or any combination of these offenses, the CDL holder is disqualified for life. However, there is a possibility of reinstatement after ten years. If a CDL holder uses a commercial motor vehicle in the commission of a felony involving more than just the possession of a controlled substance, the holder is disqualified for life.
Two or Three Serious Traffic Offenses Within 3 Years – If a CDL holder is convicted of two serious traffic offenses within a 3-year period, the CDL holder is disqualified for 60 days. If a third conviction occurs within the 3-year period, the disqualification is for 120 days. The following are considered “serious traffic offenses”:
- Speeding 15 m.p.h. or more over the speed limit.
- Reckless driving, including charges of driving a commercial vehicle in willful or wanton disregard of safety.
- Improper or erratic traffic lane changes.
- Following too closely.
- Violating a traffic law that leads to an accident causing death or serious bodily injury.
- Driving a commercial motor vehicle without obtaining a commercial driver’s license.
- Driving a commercial vehicle without having the CDL in possession.
- Driving a commercial motor vehicle without the proper class of commercial driver’s license, or endorsements for the specific vehicle group being operated or for the passengers or type of cargo being transported, or both.
- Texting and driving.
- Violating state laws restricting or prohibiting the use of a hand-held mobile telephone while driving a CMV
- Any other offenses as defined in 49 C.F.R. 383.5 and 383.51.
What are Enhancement Offenses?
If a CDL driver has two major violations within his/her lifetime (called enhancement offenses), then the CDL is forever disqualified. “Major violations” are these:
- DUI Under Any State’s Law
- Having a BAC of 0.04 While Operating CMV
- Refusing an Implied Consent Test
- Leaving the Scene of An Accident
- Using a Motor Vehicle to Commit a Felony
- Driving a CMV While CDL or CLP is revoked, suspended, or canceled
- Causing a Fatality Through Negligent Operation
- Using a Motor Vehicle to Distribute or Manufacture Drugs
- Using a Motor Vehicle for Human Trafficking
Can a CDL Driver Plead a DUI Down to Reckless Driving in South Carolina?
If a CDL-holder pleads to reckless driving, even if driving a CMV at the time of the offense, there is no immediate disqualification or suspension of the CDL privileges in SC. However, there is a 60-day disqualification on a second offense within three years, even if the other offense is not while driving a CMV. A third offense causes a 120-day disqualification.
Should I Get a Class D License During My Disqualification Period?
If you lose your CDL privilege in South Carolina, you may want to get a regular Class D license until you can drive a CMV again. If you do this, when you go to reinstate your CDL, you will have to retake your CDL driver’s exam. This will require you to bring a commercial vehicle to the exam, which you may not have access to. If you don’t have ready access to a CMV or are concerned with re-testing, waiting out the disqualification/suspension period may be beneficial. It may be an even bigger problem if you have specific endorsements. For example, a Hazmat endorsement may subject you to a new TSA Threat Assessment. Endorsements are as follows:
- H – Hazardous Material (Hazmat)
- N – Tanker Vehicle
- P – Passenger Vehicle (Designed to carry 16 or more people, including the driver)
- S – School Bus (You must have a P endorsement to have an S endorsement)
- T – Double/Triple Trailers
- X – Combination Hazmat and Tanker
Will My TWIC Card Be Affected By My DUI?
Many truck drivers have a Transportation Worker Identification Credential (TWIC) card. This credential allows them to drive on ports, airports, and railways. Usually, DUI or refusal to give a breath or urine sample all by itself does not cause TWIC problems. Disqualifiers are generally more severe crimes like murder, immigration violations, and RICO crimes. However, if drugs or weapons are found during the search of the vehicle, it could cause a TWIC issue. Make sure your DUI defense lawyer knows if you have any criminal record or if drugs or weapons were found during your arrest.
What Should a CDL Driver Do if Charged With a DUI?
If you are in South Carolina, you should immediately call an experienced DUI defense lawyer, such as the lawyers at Futeral and Nelson. There are time-sensitive decisions you must make, and your lawyer can answer your questions about:
- How to fight your disqualification if you refused a breath test
- How can you get your CDL privilege back as quickly as possible
- Do you need to report the violation to your employer
- Whether you should get a Temporary Alcohol License (TAL)
- Whether you should class down to a Class D license
- Should you engage a Substance Abuse Professional (SAP)
It’s best to talk to an experienced CDL DUI lawyer before making any decisions that may affect your career.
What Do I Need to Tell My Lawyer If I Have a DUI?
Here’s a simple checklist of things to be sure to share with your attorney to make sure they give you the best advice and the best defense:
- Whether your employer knows
- Any medical diagnoses you have
- Your complete driving history, even if you think it doesn’t show on a record
- Your complete criminal history, even if you think it doesn’t show on a record
- If you have any FMCSA violations in your history at any time
- If you have a TWIC card
What is Masking?
Federal law provides:
The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CLP or CDL holder’s conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (other than parking, vehicle weight, or vehicle defect violations) from appearing on the CDLIS driver record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State.
This “masking” prohibition often causes problems for your DUI CDL defense. In DUI cases that do not involve a CDL, a prosecutor may cut a deal to protect someone’s record because they feel the driver deserves a break. However, this “masking” regulation may cause the prosecutor to think twice before cutting such a deal when the driver has a CDL. An experienced CDL DUI defense lawyer will have strategies to deal with masking in the case.
How are CDL Violation Records Kept?
Due to Federal Motor Carrier Safety Regulations (FMCSR), all states’ DMVs report traffic and other offenses through the American Association of Motor Vehicle Administrators (AAMVA). CDL violations are reported through the Commercial Driver’s License Information System (CDLIS). Non-Commercial Motor Vehicle violations are reported through the State-to-State National Registry. Because states may use different names for violations, they use the AAMVA Code Dictionary (ACD Codes) to stay consistent.
Employment violations are now reported through the Drug and Alcohol Clearinghouse. This Clearinghouse system began on January 6, 2020. It is intended to meet the FMCSA’s goal of One Driver, One License, and One Record so that drivers don’t hide violations and get new CDLs in other states. The violations required to be reported are:
- Verified positive, adulterated, or substituted controlled substances test results
- Alcohol tests over 0.04% or higher (work tests, not necessarily DUI tests)
- Refusals (work tests, not necessarily DUI tests)
- Employers’ actual knowledge of certain alcohol violations
- Positive tests while engaged in safety-sensitive functions or post-accident tests
The people required to report are:
- Medical Review Officers (MRO)
- Consortium/Third Party Administrators (C/TPA)
- Substance Abuse Professionals (SAP)
- State Drivers License Agencies (SDLA) or DMVs
If there is incorrect information on your state driving record or on the Clearinghouse, we may be able to help correct it.
What are the Types of Employment Tests?
Truck drivers, bus drivers, and other CDL holders are subject to alcohol and drug testing as part of their employment:
- Pre-employment controlled substance tests
- Post-accident alcohol or controlled substance tests if a fatality occurs or if a citation is issued
- Random alcohol or controlled substances tests (programs are federally required of employers)
- Reasonable suspicion of alcohol or controlled substance tests
- Return-to-duty alcohol or controlled substances tests
- Follow-up alcohol or controlled substance tests
Alcohol tests are generally breath or saliva. Drug tests are generally urine. Follicle tests are less common, but we they may be implemented more into the federal regulations soon.
Charleston CDL Defense Lawyers
If a CDL holder can’t drive, the driver is unemployable and immediately loses his or her job. Also, if and when the CDL holder is eligible to drive a commercial vehicle again, he or she is at a higher employment risk and may carry higher insurance rates, so it will likely be much more difficult to find a job. Because of these severe ramifications, any commercial driver who is charged with DUI or DUAC in Charleston or the surrounding areas should contact the lawyers at Futeral & Nelson and schedule a free consultation. We know how to defend against DUIs, and we’ll fight to keep you on the road and keep your job.