Austin Texas Drunk Driving Defense, Ken Gibson, Attorney at Law

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DWI and Commercial Driver’s Licenses [CDL] in Texas

If you hold a Commercial Driver’s License (CDL), as of June1, 2005, the laws in Texas have dramatically changed for you. In order to comply with the Federal Motor Carrier Improvement Act, Texas has amended the penalties for CDL holders who get a first or subsequent DWI, *even when a non-commercial vehicle was used during the DWI*.

So, if you are convicted of a first DWI and you have a CDL, *in addition to the penalties* you will receive under the DWI statute, you will also lose your CDL for a minimum of one year.

For a second DWI, you will lose your CDL *for life*, although you may apply for it to be reinstated after 10 years. However, if you did NOT lose your CDL on your first DWI, call me to discuss why you should not lose your CDL for life.

Out of state convictions can also trigger this provision. If you are convicted of a DWI in another state, the state will report the conviction to Texas. If you have a CDL, but were not driving a commercial vehicle in that other state, based on this new law, Texas will suspend your CDL for one year, and for life upon a second conviction.

If you have a CDL, call me to discuss defending your livelihood.

The full text of the new law is set forth below. **Sections that apply to DWI are in bold red.**

### § 522.081. DISQUALIFICATION.

Text of section effective until June 1, 2005

  1. This subsection applies only to a violation committed while operating a commercial motor vehicle. A person is disqualified from driving a commercial motor vehicle for:
    1. 60 days if convicted of:
      1. two serious traffic violations that occur within a three-year period; or
      2. one violation of a law that regulates the operation of a motor vehicle at a railroad grade crossing;
    2. 120 days if convicted of:
      1. three serious traffic violations arising from separate incidents occurring within a three-year period; or
      2. two violations of a law that regulates the operation of a motor vehicle at a railroad grade crossing that occur within a three-year period; or
    3. one year if convicted of three violations of a law that regulates the operation of a motor vehicle at a railroad grade crossing that occur within a three-year period.
  2. A person is disqualified from driving a commercial motor vehicle for one year on first conviction of:
    1. driving a commercial motor vehicle under the influence of alcohol or a controlled substance, including a violation of Section 49.04 or 49.07, Penal Code;
    2. driving a commercial motor vehicle while the person’s alcohol concentration was 0.04 or more;
    3. intentionally leaving the scene of an accident involving a commercial motor vehicle driven by the person;
    4. using a commercial motor vehicle in the commission of a felony, other than a felony described by Subsection (d)(2);
    5. refusing to submit to a test to determine the person’s alcohol concentration or the presence in the person’s body of a controlled substance or drug while driving a commercial motor vehicle;
    6. causing the death of another person through the negligent or criminal operation of a commercial motor vehicle; or
    7. driving a commercial motor vehicle while the person’s commercial driver’s license is revoked, suspended, or canceled, or while the person is disqualified from driving a commercial motor vehicle, for an action or conduct that occurred while operating a commercial motor vehicle.
  3. If a violation listed in Subsection (b) occurred while the person was transporting a hazardous material required to be placarded, the person is disqualified for three years.
  4. A person is disqualified from driving a commercial motor vehicle for life if the person:
    1. is convicted of two or more violations of an offense specified by Subsection (b), or a combination of those offenses, arising from two or more separate incidents; or
    2. uses a commercial motor vehicle in the commission of a felony involving:
      1. the manufacture, distribution, or dispensing of a controlled substance; or
      2. possession with intent to manufacture, distribute, or dispense a controlled substance.
  5. In this section, “felony” means an offense under state or federal law that is punishable by death or imprisonment for a term of more than one year.

### § 522.081. DISQUALIFICATION.

Text of section effective June 1, 2005

  1. This subsection applies to a violation committed while operating any motor vehicle, including a commercial motor vehicle.
    A person who holds a commercial driver’s license is disqualified from driving a commercial motor vehicle for:

    1. 60 days if convicted of:
      1. two serious traffic violations that occur within a three-year period; or
      2. one violation of a law that regulates the operation of a motor vehicle at a railroad grade crossing; or
    2. 120 days if convicted of:
      1. three serious traffic violations arising from separate incidents occurring within a three-year period; or
      2. two violations of a law that regulates the operation of a motor vehicle at a railroad grade crossing that occur within a three-year period.
  2. This subsection applies to a violation committed while operating any motor vehicle, including a commercial motor vehicle, except as provided by this subsection. A person who holds a commercial driver’s license is disqualified from driving a commercial motor vehicle for one year:
    1. if convicted of three violations of a law that regulates the operation of a motor vehicle at a railroad grade crossing that occur within a three-year period;
    2. on first conviction of:
      1. driving a motor vehicle under the influence of alcohol or a controlled substance, including a violation of Section 49.04 or 49.07, Penal Code;
      2. leaving the scene of an accident involving a motor vehicle driven by the person;
      3. using a motor vehicle in the commission of a felony, other than a felony described by Subsection (d)(2);
      4. causing the death of another person through the negligent or criminal operation of a motor vehicle; or
      5. driving a commercial motor vehicle while the person’s commercial driver’s license is revoked, suspended, or canceled, or while the person is disqualified from driving a commercial motor vehicle, for an action or conduct that occurred while operating a commercial motor vehicle;
    3. for refusing to submit to a test under Chapter 724 to determine the person’s alcohol concentration or the presence in the person’s body of a controlled substance or drug while operating a motor vehicle in a public place; or
    4. if an analysis of the person’s blood, breath, or urine under Chapter 522, 524, or 724 determines that the person:
      1. had an alcohol concentration of 0.04 or more, or that a controlled substance or drug was present in the person’s body, while operating a commercial motor vehicle in a public place; or
      2. had an alcohol concentration of 0.08 or more while operating a motor vehicle, other than a commercial motor vehicle, in a public place.
  3. A person who holds a commercial driver’s license is disqualified from operating a commercial motor vehicle for three years if:
    1. the person:
      1. is convicted of an offense listed in Subsection (b)(2) and the vehicle being operated by the person was transporting a hazardous material required to be placarded; or
      2. refuses to submit to a test under Chapter 724 to determine the person’s alcohol concentration or the presence in the person’s body of a controlled substance or drug while operating a motor vehicle in a public place and the vehicle being operated by the person was transporting a hazardous material required to be placarded; or
    2. an analysis of the person’s blood, breath, or urine under Chapter 522, 524, or 724 determines that while transporting a hazardous material required to be placarded the person:
      1. while operating a commercial motor vehicle in a public place had an alcohol concentration of 0.04 or more, or a controlled substance or drug present in the person’s body; or
      2. while operating a motor vehicle, other than a commercial motor vehicle, in a public place had an alcohol concentration of 0.08 or more.
  4. A person is disqualified from driving a commercial motor vehicle for life:
    1. if the person is convicted two or more times of an offense specified by Subsection (b)(2), or a combination of those offenses, arising from two or more separate incidents;
    2. if the person uses a motor vehicle in the commission of a felony involving:
      1. the manufacture, distribution, or dispensing of a controlled substance; or
      2. possession with intent to manufacture, distribute, or dispense a controlled substance; or
    3. for any combination of two or more of the following, arising from two or more separate incidents:
      1. a conviction of the person for an offense described by Subsection (b)(2);
      2. a refusal by the person described by Subsection (b)(3); and
      3. an analysis of the person’s blood, breath, or urine described by Subsection (b)(4).
  5. A person may not be issued a commercial driver’s license and is disqualified from operating a commercial motor vehicle if, in connection with the person’s operation of a commercial motor vehicle, the person commits an offense or engages in conduct that would disqualify the holder of a commercial driver’s license from operating a commercial motor vehicle, or is determined to have had an alcohol concentration of 0.04 or more or to have had a controlled substance or drug present in the person’s body. The period of prohibition under this subsection is equal to the appropriate period of disqualification required by Subsections (a)-(d).
  6. In this section, “felony” means an offense under state or federal law that is punishable by death or imprisonment for a term of more than one year.

For text of section effective until June 1, 2005, see § 522.081, ante

### § 522.082. REINSTATEMENT FOLLOWING DISQUALIFICATION FOR LIFE.

  1. The department may adopt rules establishing guidelines, including conditions, under which a person disqualified for life under Section 522.081(d)(1) may apply to thedepartment for reinstatement of the person’s commercial driver’s license, if authorized under federal law.
  2. A person is not eligible for reinstatement unless the person has been disqualified for at least 10 years and meets the department’s conditions for reinstatement.
  3. If a reinstated driver is subsequently convicted of another disqualifying offense as specified by Section 522.081(b), the person is permanently disqualified and is not eligible for reinstatement.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

### § 522.083. UPDATE OF RECORDS.

After disqualifying a person, the department shall update its records to reflect that action.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

### § 522.084. NOTIFICATION TO OTHER JURISDICTION.

After disqualifying a person who has a domicile in another state or in a foreign jurisdiction, the department shall give notice of that fact to the licensing authority of the state that issued the person’s commercial driver’s license or commercial driver learner’s permit.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

### § 522.085. PROBATION OF DISQUALIFICATION PROHIBITED. Notwithstanding Section 521.303, if a person is disqualified under this chapter, the disqualification may not be probated.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

### § 522.086. ISSUANCE OF ESSENTIAL NEED OR OCCUPATIONAL DRIVER’S LICENSE PROHIBITED.

A person who is disqualified from operating a commercial motor vehicle may not be granted an essential need or occupational driver’s license that would authorize operation of a commercial motor vehicle.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

## SUBCHAPTER I. DRIVING WHILE HAVING ALCOHOL, CONTROLLED SUBSTANCE, OR DRUG IN SYSTEM

### § 522.101. DRIVING WHILE HAVING ALCOHOL IN SYSTEM PROHIBITED.

  1. Notwithstanding any other law of this state, a person may not drive a commercial motor vehicle in this state while having a measurable or detectable amount of alcohol in the person’s system.
  2. A person who violates Subsection (a) or who refuses to submit to an alcohol test under Section 522.102 shall be placed out of service for 24 hours.
  3. A peace officer may issue an out-of-service order based on probable cause that the person has violated this section. The order must be on a form approved by the department. The peace officer shall submit the order to the department.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

### § 522.102. IMPLIED CONSENT TO TAKING OF SPECIMEN.

  1. A person who drives a commercial motor vehicle in this state is considered to have consented, subject to Chapter 724, to the taking of one or more specimens of the person’s breath, blood, or urine for the purpose of analysis to determine the person’s alcohol concentration or the presence in the person’s body of a controlled substance or drug.
  2. Notwithstanding Chapter 724, one or more specimens may be taken at the request of a peace officer who, after stopping or detaining a person driving a commercial motor vehicle, has probable cause to believe that the person was driving the vehicle while having alcohol, a controlled substance, or a drug in the person’s system.
  3. This section and Section 522.103 apply only to a person who is stopped or detained while driving a commercial motor vehicle.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 941, § 12, eff. Sept. 1, 2001.

### § 522.103. WARNING BY PEACE OFFICER.

  1. A peace officer requesting a person to submit a specimen under Section 522.102 shall warn the person that a refusal to submit a specimen will result in the person’s being immediately placed out of service for 24 hours and being disqualified from driving a commercial motor vehicle for at least one year under Section 522.081.
  2. A peace officer requesting a person to submit a specimen under Section 522.102 is not required to comply with Section 724.015.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 941, § 13, eff. Sept. 1, 2001.

### § 522.104. SUBMISSION OF REPORT TO DEPARTMENT.

If a person driving a commercial motor vehicle refuses to give a specimen or submits a specimen that discloses an alcohol concentration of 0.04 or more, the peace officer shall submit to the department a sworn report, on a form approved by the department, certifying that the specimen was requested under Section 522.102 and that the person refused to submit a specimen or submitted a specimen that disclosed an alcohol concentration of 0.04 or more.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

### § 522.105. DISQUALIFICATION OF DRIVER.

  1. On receipt of a report under Section 522.104, the department shall disqualify the person from driving a commercial motor vehicle under Section 522.081.
  2. Except as provided by Subsection (c), the procedure for notice and disqualification under this section is that specified by Subchapters C and D, Chapter 724, or Chapter 524.
  3. The department shall disqualify the person from driving a commercial motor vehicle for the period authorized by this chapter if, in a hearing held under this section, the court finds that:
    1. probable cause existed that the person was driving a commercial motor vehicle while having alcohol, a controlled substance, or a drug in the person’s system;
    2. the person was offered an opportunity to give a specimen under this chapter; and
    3. the person submitted a specimen that disclosed an alcohol concentration of 0.04 or more or refused to submit a specimen.
  4. An appeal of a disqualification under this section is subject to Sections 524.041-524.044.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.

### § 522.106. AFFIDAVIT BY CERTIFIED BREATH TEST TECHNICAL SUPERVISOR.

  1. In a proceeding under this chapter, the certified breath test technical supervisor responsible for maintaining and directing the operation of the breath test
    instruments in compliance with department rules, in lieu of appearing in court, may attest by affidavit to:

    1. the reliability of the instrument used to take or analyze a specimen of a person’s breath to determine alcohol concentration; and
    2. the validity of the results of the analysis.
  2. An affidavit submitted under this section must contain statements regarding:
    1. the reliability of the instrument and the analytical results; and
    2. compliance with state law in the administration of the program.
  3. A certified copy of an affidavit prepared in accordance with this section is admissible only if the department serves a copy of the affidavit on the person or the person’s attorney not later than the seventh day before the date on which the hearing begins.

Acts 1995, 74th Leg., ch. 165, § 1, eff. Sept. 1, 1995.