Handling Criminal or Traffic Citations Issued to Commercial Drivers
| Publication year | 2011 |
2011, February, Pg.23. Handling Criminal or Traffic Citations Issued to Commercial Drivers
Fabruary 2011
Vol. 40, No. 2 [Page 23]
Criminal Law articles are sponsoredby the CBA Criminal Law Section and generally are writtenby prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
About the Authors
Jonathan M. Abramson is a partner with the law firm of Kissinger and Fellman, P.C., where he focuses his practice on criminal defense and civil litigation, including the representation of commercial drivers and motor carriers in civil, criminal, traffic, and administrative proceedings-(303) 320-6100, jonathan@kandf.com.
Criminal charges and traffic citations have collateral consequences that can be detrimental to the holder of a commercial driver's license. The criminal/traffic practitioner must be aware of such consequences and properly advise his or her client.
Commercial drivers are prevalent in the United States. According to the Colorado Department of Revenue, there currently are 227,219 commercial driver's license (CDL) holders in Colorado and 14,032,524 nation wide.(fn1) The criminal or traffic practitioner must exercise great caution in representing a client who maintains a CDL to prevent the loss of the client's CDL-a loss that is almost always devastating to the client's livelihood. For example, traffic citations issued to a commercial driver might adversely affect the driver's employment. Practitioners must ensure that their commercial driver clients are properly advised of this and other collateral consequences associated with criminal or traffic violations. The failure to do so may render the representation constitutionally ineffective and expose counsel to a potential malpractice suit.
Although it might seem that collateral consequences are largely a matter of individual state law, most of the consequences to commercial drivers convicted of traffic-related offenses are based on federal law. This article briefly discusses the relevant Colorado law and then provides an overview of the federal statutes and regulations affecting CDLs.
Colorado-Specific Licensure Consequences
Any driver of a commercial motor vehicle (CMV) is required to have a CDL. A CMV is defined as:
1) any vehicle used in commerce with a gross weight rating of 26,001 pounds or more;
2) any vehicle that is designed to transport sixteen or more passengers, including the driver; or
3) any vehicle that is transporting hazardous materials and is required to be placarded in accordance with 49 C.F.R. part 172, subpart F.(fn2)
In Colorado, the state regulations regarding CDLs are set forth in the Commercial Driver's License Act, Title 42, Section 2, Part 4 (Act).
The Act addresses grounds for denial, suspension, revocation, and disqualification of CDL and non-CDL holders. Many of these grounds also are addressedby the applicable federal regulations. Such grounds pertaining to CDL holders include:(fn3)
1) driving, operating, or being in actual physical control of a CMV while having any alcohol in his or her system, or refusing to submit to a test to determine the alcoholic content of the driver's blood or breath while driving a commercial vehicle;(fn4)
2) possessing or knowingly transporting a schedule I drug or other substance identified in 49 C.F.R. chapter III, subchapter B, appendix D, an amphetamine, a narcotic drug, a formulation of an amphetamine, or a derivative of a narcotic drug while operating a commercial vehicle during on-duty time;(fn5)
3) a conviction for driving under the influence (DUI), DUI per se, driving while ability impaired (DWAI), habitual user, or a substantially similar law of any other state pertaining to drinking and driving, or an administrative determination of CRS § 42-2-126(3)(a) or (3)(b);(fn6) or
4) a conviction for violating Colorado's railroad crossing statutes or a substantially similar law of any other state.
The Act also provides that a person who operates a CMV in violation of an out-of-service order commits a class 1 traffic misdemeanor.(fn7) (Out-of-service violations involve drivers who are not supposed to be driving for a particular period of time, and are discussed below.) Furthermore, statute mandates that a court cannot accept a plea of guilty to another offense from a person charged with operating a CMV in violation of an out-of-service order, unless the prosecuting attorney makes a good faith representation that there is no prima facie case for the original charge.(fn8) This makes plea bargaining out-of-service charges difficult, if not impossible.
Federal Motor Carrier Safety Act and Regulations
When representing a commercial driver charged with a criminal or traffic violation, practitioners must be familiar with the Colorado-specific consequences set forth in CRS Title 42, as well as with the Federal Motor Carrier Safety Regulations (FMCSR).(fn9) It is essential to be well versed in both Colorado and federal regulations, because Colorado has specifically authorized the adoption of federal statutes, rules, policies, administrative customs or practices, and licensing sanctions governing CMV safety.(fn10)
The section of the FMCSR that is particularly applicable to the representation of a commercial driver is Part 383-Commercial Driver's License Standards; Requirements and Penalties.(fn11) This section addresses four general categories of regulation: revocation or suspension of CDLs (1) for major offenses; (2) for serious offenses; (3) for offenses related to railroad crossings; and (4) for violations of out-of-service orders. The major and serious offenses are based on convictions in any state. A conviction is defined as:
an unvacated adjudication of guilty, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction orby an authorized administration tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court, a plea of guilty or nolo contendere acceptedby the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.(fn12)
Generally, in Colorado, when a defendant fails to appear for a traffic matter, an outstanding judgment warrant is issued, which results in suspension of the defendant's driver's license. Loss of one's regular license also results in loss of a CDL. When and if the defendant appears in court, the outstanding judgment warrant can be set aside and the defendant's driver's license can be reinstated. There are courts in Colorado that enter a default judgment when a defendant fails to appear on a traffic citation. Unless the defendant can successfully move to have the default judgment set aside, the default judgment constitutes a conviction and is transmitted to the Department of Revenue, Division of Motor Vehicles (DMV).
The above definition of conviction does not address diversion programs, deferred prosecutions, and deferred judgments. Such dispositions could be construed to violate federal regulations prohibiting the masking of convictions. Federal regulations provide:
The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CDL driver's conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (except a parking violation) from appearing on the driver's record, whether the driver was convicted for an offense committed...
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