FMCSA: LOUISIANA IN-STATE CK/CAT OCTOBER 8, 2013

FMCSA: COMMERCIAL DRIVER’S LICENSING LAWS

Honorable Karl Grube OBJECTIVES: After this session you will be able to:

1. Understand why Federal and State laws require us to perceive CDL holder traffic violations differently from those of non-CDL holders;

2. Correctly apply the Louisiana and Federal laws in CDL holder cases; and

3. Avoid legal and ethical mistakes in the disposition of CDL holders’ traffic violations that come before you.

READING: PAGE

1. Karl Grube, Legal and Ethical Issues in Commercial Driver License Holders’ Moving Violation Cases (Oct. 2013) [NJC PowerPoint] .....................................1

2. American Transportation Research Institute (ATRI) Predicting Truck Crash Involvement: A 2011 Update ...................................................................................23

3. Louisiana CDL Statutes, LSA-R.S 32:414.2 .....................................................................25

 

Acknowledgment

This program was developed under Grant No. CD119911NJCJUD from the FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION. Points of view or opinions expressed herein are those of the author and do not necessarily represent the official position or policies of the Federal M otor Carrier Safety Administration. The National Judicial College is most grateful for this expression of support for judicial education and the improvement of justice in our country.

 

Legal and Ethical Issues in Commercial

Driver License

FMCSA IN-STATE: LOUISIANAOctober 8, 2013

Holders’ Moving Violation Cases

Presented byKarl Grube, Senior Judge

After Completing this Program, You will be Better Able to:

Understand why Federal and State laws require us to perceive CDL holder traffic violations differently from those of non-CDL holders.

Correctly apply the Louisiana and Federal laws in CDL holder cases.

Avoid legal and ethical mistakes in the disposition of CDL holders’ traffic violations that come before you.

A Quick Crash Course on CMVs and CDLs

CMV’s are: vehicles used in commerce weighing 26,001 lbs. or

16more, or can carry 16 or more passengers, or transport hazardous materials.

To operate one of these CMVs you need a CDL

1

What Is “Masking” and Why Does It Present Issues For

Judges?

49 CFR § 384.226

A state must not mask, defer imposition of a judgment, or allow an individual to enter into a diversion program that would prevent a conviction from appearing on the CDL driver’s record.

What Is Masking According To

Louisiana Law?It is the action of a Court or an Administrative Tribunal in preventing a “Conviction” as described in:

LSA-R.S.32:414.2(A)(9)(a)

from appearing on a CDL holder’s driving record.

LSA-R.S. 32:414.2(A)(9)(a)

“Conviction”: shall include an unvacated adjudication of guilt or a determination in a court that a person has violated or failed to comply with the lawcomply with the law…

- a plea of guilty or nolo contendere accepted by a court

- the payment of a fine or court costs

2

LSA-R.S. 32:414.2(A)(9)(a)

A conviction shall occur regardless of whether a person is referred to a remedial or pretrial diversion program as an alternative to the imposition of a penaltyalternative to the imposition of a penalty, fine, or other sanction.

How do you feel about handling CMV and CDL g

Cases?

TRUE OR FALSE?

Whenever there is a traffic case on my docket involving a commercial driver or CDL holder I can generallydriver or CDL holder, I can generally count on the driver or their attorney to appear for court as scheduled.

3

TRUE OR FALSE?

It is unfair to hold CDL holders or drivers of CMVs to different standards than those required of other driversthan those required of other drivers. Both should be governed by the same laws regarding license issuance, traffic violations, taking of driving privileges, etc.

TRUE OR FALSE?

Most commercial drivers and CDL holders are quite concerned about the amount of any fine imposed uponamount of any fine imposed upon them as a result of any traffic violation conviction.

TRUE OR FALSE?

The commercial drivers that appear before me are generally local drivers who live in my jurisdictionwho live in my jurisdiction.

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TRUE OR FALSE?

I often feel uncomfortable when a commercial driver appears before me and argues that the conviction willand argues that the conviction will cause the loss of livelihood and will result in an inability to support his/her family.

TRUE OR FALSE?

State and Federal Governments should not interfere with the way I run my court in terms of disposing of themy court in terms of disposing of the cases of CMV License Holders.

Why Is Louisiana and the Federal Government Interested

in Treating CDL Holders Differently?

Among all Louisiana motor vehicle crash deaths in 2012,

12% of the fatalities were involved in crashes with large trucks

5

At least 23 dead in Louisiana tour bus accident

NEW ORLEANS: At least 23 people died Sunday after their chartered tour bus veered across 3 interstate lanes, jumped the embankment and

h dcrashed.

At least 25 people were taken to area hospitals. 16 of the injured were in critical condition. Most of the injured are in their 60s and 70s, and suffered multiple arm, leg and chest fractures. Some are also suffering respiratory problems.

Crash Type 2007 2008 2009 2010 2011

Total Fatalities (All 993 916 824 721 675

Louisiana Fatalities by Crash Type

(All Crashes)

993 916 824 721 675

Involving a Large Truck

121 111 83 107 80

TESTING YOUR KNOWLEDGE REGARDING CMV HIGHWAYREGARDING CMV HIGHWAY

SAFETY

6

In fatal crashes of large trucks, which factor was cited LEAST

often as a cause or major contributing factor?

a. speeding (in excess of the posted limit or too fast for conditions)limit or too fast for conditions)

b. running off the roadway or out of the traffic lane

c. failure to yield the right of wayd. presence of alcohol or drugs in the

driver’s bloodstream

What percentage of large truck drivers in fatal crashes had a BAC of 0.08 or greater at the

time of the crash?a. 1%

b 6%b. 6%

c. 11%

d. 17%

What percentage of passenger car/pickup/SUV drivers in fatal crashes had a BAC of 0.08 or

more?a. 15%

b. 22%

c. 31%

d. 40%

7

In fatal crashes of large trucks, which factor was cited MOST often

as a cause or major contributing factor?

a. speeding (in excess of the posted limit or too fast for conditions)limit or too fast for conditions)

b. running off the roadway or out of the traffic lane

c. failure to yield the right of way

d. improper or erratic lane change

In 2010, large trucks drove 7% of all vehicle miles and were 3% of all

registered vehicles. What percentage of fatal crashes did large trucks represent

in Louisiana?

a 8%a. 8%

b. 15%

c. 32%

d. 64%

Commercial Motor Vehicles are Disproportionately Involved in Crashes.

8

What is Masking and Why Does it Present Legal and Ethical Issues for Judges?

49 CFR § 384.226

A state must not mask, defer imposition of a judgment, or allow an individual to enter

into a diversion program that would prevent a conviction from appearing on the

CDL driver’s record

What is Masking?Masking is the deferral of the imposition of a judgment, allowing a defendant to enter a diversion program, or otherwise delaying p g , y gor suspending judgment, or granting an alternative non-adjudicatory sentencing from a court.

Why Does the FMCSA and Louisiana Want To Hold

CDL Holders Accountable?

Because there is a correlation betweenBecause there is a correlation between serious and major traffic violations and the threat to public safety on your streets and highways.

9

Specific Driving Violations and the Percentage Likelihood that the Driver will be Involved in a

CRASHhttp://www.atrionline.org/research/results/On

e-Pager%20CMVE pdfe-Pager%20CMVE.pdf

Study as to how likely drivers with specific violations were to be involved in

a crash within following 12 months as compared to those without violations in

the past 12 months.

- Failure/Improper Signal -96%- Improper Passing – 88%- Speeding more than 15 miles – 67%

ATRI Study of Violations Associated with Risk of Future Crash 2005 Study/2011 Update

Study as to how likely drivers with specific violations were to be involved in a crash within following 12 months

as compared to those without violations in the past 12 months

- Failure to Maintain Proper Lane - 91%

- Past Crash - 88%

- Improper Lane Change violation - 80% - Driving Too fast for Conditions - 64%

10

Relationship between Prior Offense and Likelihood to be Involved in a Crash

Within in 1 YearLikelihood to be

If Driver Had: Involved in Crash

A Failure to Use / Improper Signal conviction 96%A Past Crash 88%A I P i i l ti 88%An Improper Passing violation 88%An Improper Turn conviction 84%An Improper or Erratic Lane Change conviction 80%An Improper Lane / Location conviction 68%A Failure to Obey Traffic Sign conviction 68%A Speeding More Than 15 Miles over conviction 67%Any conviction 65%A Reckless/Careless/Negligent Driving conviction 64%

How Does the FMCSA and Louisiana Hold

CDL Holders Accountable?

By maintaining a National “CDLIS” record of CDL holders’ driving historiesCDL holders driving histories.

By prohibiting masking, so that a true picture of a CDL holder’s driving capabilities is reflected on their records.

By imposing sanctions that target the Commercial Motor Vehicle Operators License to operate a CMV.

Penalties for “Serious” and “Railroad

Crossing” Violations• 1st conviction = State decision

• 2 convictions w/i 3 years = DisqualificationDisqualification

• 3 w/i 3 years = Disqualification

• 3 separate railroad crossing violations in 3 years = One-Year disqualification

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Penalties for “Major Violations”

• First Offense - Minimum one year Disqualification

S d S b t Lif ti• Second or Subsequent – Lifetime Disqualification

Louisiana “Serious” Offenses

(i) Excessive speeding: any single offense for any speed of 15+ mph above the posted speed limit.

(ii) Reckless driving: offenses of driving a CMV in willful or wanton disregard for the safety of persons or property.

(iii) Improper or erratic traffic lane changes.

iv) Following the vehicle ahead too closely.

Louisiana “Serious” Offenses

v) a violation arising in connection with a fatal accident relating to motor vehicle traffic control, other than a parking violation.

Serious traffic violations shall not include vehicle weight and defect violations.

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Louisiana “Serious” Offenses

(vi) Driving a CMV without first obtaining a CDL.

(vii) Driving a CMV without a CDL in the driver's possession.

viii) Driving a CMV without the proper class of CDL.

(ix) Driving a CMV without possessing the proper endorsement for the vehicle being operated or for the passengers or cargo being transported.

(x) Texting while driving.

Louisiana “Serious” Offenses

e) “Railroad grade crossing violation” shall mean a conviction for any of the following:

(i) Failure to slow down and check that the railroad grade crossing is clear from an approaching train.

(ii) Failure to stop before a railroad grade crossing when there is an approaching train.

Louisiana “Serious” Offenses

(iii) Failure to stop before traversing a railroad grade crossing.(iv) Failure to completely traverse a railroad grade crossing without stopping.(v) Failure to obey a traffic control device or the(v) Failure to obey a traffic control device or the directions of an enforcement official at a railroad grade crossing.(vi) Failure to negotiate a railroad grade crossing due to insufficient undercarriage clearance.

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Louisiana “Major” Offenses- Driving any vehicle with a blood alcohol count (BAC) of 0.08% or higher

- Driving a (CMV) with a BAC of 0.04%

- Refusing to submit to a sobriety test

- Leaving the scene of an accident

- Using the vehicle to commit a felony

- Driving a CMV with a suspended, revoked or canceled CDL

- Causing a fatality by negligent driving

Judges Have “Judicial Discretion” and Are Permitted to Exercise It

Within the Bounds of the Law that Grants Discretion

What If the Judges Don’t Follow the Law?

Are there Consequences?

14

The Federal Motor Carrier Administration Will Audit

the State of Louisianaand Louisiana May

Forfeit Highway Fundsg y(See Handout)

Canon 3 A Judge Shall Perform the Duties of

Office Impartially and Diligently

A. Adjudicative Responsibilities

• (1) A judge shall be faithful to the law and maintain professional competence in it Amaintain professional competence in it. A judge shall be unswayed by partisan interests, public clamor, or fear of criticism.

Canon 3 A Judge Shall Perform the Duties of

Office Impartially and Diligently

(4) A judge shall perform judicial duties without bias or prejudicewithout bias or prejudice.

(7) A judge shall dispose of all judicial matters promptly, efficiently and fairly.

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Canon 3 A Judge Shall Perform the Duties of

Office Impartially and Diligently

B. Administrative Responsibilities

• (2) A judge shall require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties

ScenarioThe prosecutor has dismissed the citing officer and when the case is called the prosecutor announces that a plea agreement has been worked out. He states that the charge of unlawful speed will be amended to “Defective Equipment, to wit: Burned out Taillight”

ith t di l th t di i l dwithout disclosure that speeding was involved.

You inquire of the defense attorney whether the taillight has been fixed. The attorney responds that the taillight is not at issue and that this is a plea of convenience to that charge in order to save your honor the time and expense of a trial. The prosecutor agrees.

What do you do?Are there ethical implications in accepting a plea to a charge for which there may not have been probable cause to issue a citation?

Should you inquire as to whether there is a basisShould you inquire as to whether there is a basis for changing the charge to “burned out tail light?”

What should a judge do if he or she determines that the amended charge does not have a basis in fact?

16

Iowa Supreme Court Attorney Disciplinary Bd. v. Howe706 N.W.2d 360 (Iowa 2005)

“He thought that as long as the charging police officer agreed to the deal and the reduction benefited the defendant, the plea bargains were consistent with his obligation as a prosecutor toconsistent with his obligation as a prosecutor to see that justice was done. His actions were always above board. Magistrate Whittenburg testified she understood at the time she accepted the guilty pleas that there was no factual basis for them. She believed none was required for simple misdemeanors.”

Iowa Supreme Court Attorney Disciplinary Bd. v. Howe706 N.W. 2d 360 (Iowa 2005)

“A prosecutor cannot ethically file charges not supported by probable cause. It is improper for a prosecuting lawyer and for a defendant's lawyer to enter into a plea agreement underlawyer to enter into a plea agreement under which a prosecutor files charges that are not supported by underlying facts and to which the defendant agrees to plead or is expected to plead guilty.”

Iowa Supreme Court Attorney Disciplinary Bd. v. Howe

706 N.W.2d 360 (Iowa 2005)

“Ignorance of the law or erroneous advice does not excuse a breach of ethics by a lawyer.”

Accord In re Devaney, 870 A.2d 53, 57Accord In re Devaney, 870 A.2d 53, 57 (D.C.2005)

“An attorney is presumed to know the ethical rules governing his behavior, and ignorance neither excuses nor mitigates a violation.”

Office of Disciplinary Counsel v. Au, 107 Hawaii 327, 113 P.3d 203, 216 (2005)

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Louisiana Code of Professional Conduct

RULE 3.8. SPECIAL RESPONSIBILITIES OF A PROSECUTOR

• The prosecutor in a criminal case shall:

( ) f i f ti h th t• (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause

Summary

• Judges must uphold and apply the law.• Judges must require their staff and court

officials to uphold the law.p• Judges may exercise their judicial

discretion within the bounds of the law.• But, they must not abuse their exercise

of discretion.

Upholding the RULE OF LAW

Upholding Our Ethical Obligations

18

Questions?Questions?

• Driver charged with “Failure to Yield”

• At trial the court convicts.

Situation 1

At trial the court convicts.• Court allows traffic school in lieu of reporting conviction.

• Driver charged with Driving While Impaired while driving a CMV.

Situation 2

• Prosecutor reviews and dismisses case based on lack of evidence.

• Court takes no action.

19

• Defendant charged with reckless driving in personal vehicle

• Defendant enters plea of “no contest ”

Situation 3

contest.”• Case removed from docket for 6

months• After 6 months dismissed based on

D’s clean history

• D charged with speeding 20 mph over limit in CMV.

• D agrees to pay fine and costs

Situation 4

• Court Clerk collects $ then does not report as a conviction to licensing authority

• CDL holder issued traffic citation for Driving While Intoxicated in his private vehicle. Prosecutor reviews the records and

Situation 5

• Prosecutor reviews the records and determines that there is a problem with the evidence and decides not to prosecute the case, so no charges are filed with court.

• No conviction is entered.

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• CMV operator issued citation for "careless and imprudent" driving.

• Prosecutor files charges for

Situation 6

g"careless and imprudent driving."

• Case goes to trial • Court finds defendant not guilty

and ultimately dismisses the case.

• Citation for "Improper Lane Change in a CMV."

• Prior to the citation being filed with the court, the prosecutor determines to only file the charge as a "defective

Situation 7

y gmuffler” as part of a plea bargain.

• Final conviction is for "defective muffler" and that is the only charge ever signed by the prosecutor or filed with the court.

• Violation for "excessive speed" in private vehicle (75 mph in 60 zone).

• After charge is filed prosecutor

Situation 8

• After charge is filed prosecutor amends to "speeding 65 in a 60.”

• Final conviction is for speeding 65 mph in a 60 mph zone.

21

• CMV operator is issued a traffic citation for "Operating a CMV while Suspended / Revoked / Withdrawn.”

• Prosecutor files charges for "Operating CMV while license suspended / revoked / withdrawn ”

Situation 9

withdrawn. • Final conviction is for "Operating CMV

while license suspended / revoked / withdrawn.

• Later, court allows attorney for CMV operator to withdraw original plea and conviction and after new court hearing, court ultimately enters a conviction for "Improper CDL Class/Endorsement.”

22

Predicting Truck Crash Involvement: A 2011 Update

The Problem Despite fatal truck crash totals reaching their lowest levels in U.S. DOT recorded history in 2009, both industry and government remain convinced there is room for improvement. Reacting to recent research which has highlighted the pivotal role that driver-related factors play in truck crashes, it is clear that efforts aimed at further reducing preventable crashes must focus in large part on driver behaviors. In 2005, ATRI conducted research that identified specific truck driver behaviors that are most predictive of future truck crash involvement.1 Numerous factors could have changed these relationships over the past five years, however. Therefore, an updated analysis was warranted to discern which truck driver behaviors from the original study continue to hold predictive value in terms of crash involvement.

Research Goal The main objective of this research was the identification of specific types of driver behaviors (violations, convictions and crashes) that are most highly correlated with future crash involvement. The Research Team examined to what extent drivers with certain driving records in one year (2008) were more likely to be involved in a truck crash in the following 12 months (2009), compared to drivers who did not have the same violations, convictions or prior crash history. Additionally, the Research Team sought to determine how the updated 2011 findings relate to those from ATRI’s 2005 study.

1 American Transportation Research Institute. Predicting Truck Crash Involvement: Developing a Commercial Driver Behavior-Based Model and Recommended Countermeasures. Alexandria, VA. October 2005.

Methodology This research replicated a first-of-its-kind ATRI study which analyzed several driver-specific databases to statistically relate those data to future crash probability at the driver level of analysis. Data sources included the Motor Carrier Management Information System (MCMIS) and the Commercial Drivers License Information System (CDLIS). For the purposes of this research, crash involvement was used as the dependent variable. The independent variables were driver-specific performance indicators mined from the data including: specific road inspection violation information; driver traffic conviction information; as well as past crash involvement information. Driver data were gathered from a two-year time frame (2008-2009) and analyzed across those years to determine the future crash predictability of violations, convictions and crashes which occurred the previous year. Individual chi-square analyses were used to assess whether there was a significant difference in future crash rates for drivers based on their past violations, convictions and/or crash information. Findings This study’s findings were based on data from 587,772 U.S. truck drivers. The analysis shows that a “failure to use/improper signal” conviction was the leading conviction associated with an increased likelihood of a future crash. When a truck driver was convicted of this offense, the driver’s likelihood of a future crash increased 96 percent. Ten additional convictions were also significant crash predictors; of these, eight had an associated crash likelihood increase between 56 and

23

84 percent, while two registered between 36 to 40 percent. In relation to driver violations, an improper passing violation had the strongest association with crash involvement. Drivers with this violation were 88 percent more likely than their peers to be involved in a crash. Seven additional violations had significant crash associations, with five ranging in magnitude between 38 and 45 percent and two between 18 and 21 percent. Finally, the results indicated that drivers who had a past crash also had a significant 88 percent increase in their likelihood of a future crash. Table 1 ranks the top 10 driver events by the percentage increase in the likelihood of a future crash.

Table 1

If a driver had:

Increase in Crash

Likelihood A Failure to Use / Improper Signal conviction

96%

A Past Crash 88% An Improper Passing violation 88% An Improper Turn conviction 84% An Improper or Erratic Lane Change conviction

80%

An Improper Lane / Location conviction

68%

A Failure to Obey Traffic Sign conviction

68%

A Speeding More Than 15 Miles over Speed Limit conviction

67%

Any conviction 65% A Reckless / Careless / Inattentive / Negligent Driving conviction

64%

Conclusions drawn from this 2011 updated report include an acknowledgement that driver behaviors, while still associated with crash involvement, appear to be less strongly related than in ATRI’s original report, when three predictors were found to more than double crash risk. Moreover, while many of the 2005 behaviors demonstrated similar patterns in the analysis update, a number of the most predictive behaviors from 2005 were replaced by new behaviors. Theories are proposed for these changes, with an emphasis on the finding that roadside inspected drivers generally had much safer records in the 2011 study, as evidenced by the lower proportion of drivers being issued violations (see Table 2).

Table 2

Violation:

Percent of Drivers with

Violation (2005 Study)*

Percent of Drivers with

Violation (2011 Study)*

Percent Change

Improper Passing 0.49% 0.11% -76.82% False or No Log Book 44.44% 20.10% -54.77% Speeding 25.04% 11.96% -52.26% Failure to Yield Right of Way

0.27% 0.14% -49.07%

Disqualified Driver 1.65% 0.86% -47.92% Improper Turns 0.16% 0.08% -46.86% Following Too Close 1.42% 0.80% -43.79% Medical Certificate 10.59% 6.19% -41.53% Reckless Driving 0.10% 0.06% -39.89% Size and Weight 23.88% 14.52% -39.19% Moving 44.50% 27.49% -38.23% Improper Lane Change

1.02% 0.64% -37.44%

Failure to Obey Traffic Control Device

3.44% 2.52% -26.81%

Hours-of-Service 20.50% 17.32% -15.51% Any OOS violation 37.95% 34.74% -8.45% *Figures are calculated using only those drivers in the study who had a Roadside Inspection in 2002-2003 and 2008, respectively

Finally, the report provides recommendations for how the industry can apply the current study’s findings to continue to reduce the occurrence of crashes and crash-related behaviors. ATRI developed a formula for identifying “top tier” enforcement states, which highlight those states that contribute proportionally more to the nation’s traffic enforcement activity totals than truck crash statistic totals. Overall, the findings in this report suggest that driver interventions and industry innovations are capable of altering the magnitude and even the presence of the linkage between behaviors and future exposure to crashes. By becoming aware of problem behaviors, carriers and enforcement agencies are able to address those issues prior to them leading to serious consequences. The converse is also true, however, as lower priority behaviors, if ignored, may begin to play an increasing role in crash involvement. To receive a copy of this report and other ATRI studies, please visit: WWW.ATRI-ONLINE.ORG

ATRI’s primary mission is to conduct and support research in the transportation field, with an emphasis on the trucking industry’s essential role in the U.S. and international marketplace.

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LSA-R.S. 32:414.2 § 414.2. Commercial motor vehicle drivers and drivers with a commercial

learner's permit; disqualification; issuance of Class “D” or “E” license; alcohol content in breath and blood; implied consent

A. (1)(a) Notwithstanding any other law to the contrary, a person shall be disqualified from driving a commercial motor vehicle for committing any offense specified in this Section. The disqualification offenses apply to violations occurring in this or any other state or in any foreign jurisdiction complying with the requirements of the Federal Motor Carrier Safety Administration for commercial motor vehicles. The department shall suspend, revoke, or cancel the commercial driving privileges of a person who is disqualified to drive pursuant to this Section. If the Federal Motor Carrier Safety Administration so provides, the department may establish procedures by which a driver with a lifetime disqualification under Paragraph (2) of this Subsection may apply to have the disqualification reduced to a period of not less than ten years and be eligible for reinstatement of commercial driving privileges. Any subsequent offense specified in Paragraph (2) of this Subsection shall disqualify the individual from commercial driving privileges for life. Such individual shall not be eligible for reinstatement. If a driver is suspended or revoked from operating a Class “D” or “E” motor vehicle, he shall also be disqualified from operating a commercial motor vehicle. (b)(i) There shall be no economic hardship license to operate a commercial motor vehicle. Upon receipt of a conviction of an offense which requires disqualification of commercial driving privileges, the department shall disqualify the individual from commercial driving privileges. A disqualification shall be imposed even if the conviction is set aside or dismissed pursuant to any provision of the Code of Criminal Procedure unless the conviction is set aside or dismissed because of an appeal of the conviction. The disqualification shall become part of the individual's official operating record. (ii) Whenever a person has been disqualified from driving a commercial motor vehicle, such person shall be issued a Class “D” or “E” driver's license upon expiration of any license suspension, revocation, or cancellation resulting from the disqualifying offense and provided his Class “D” or “E” driving privileges are otherwise valid. The license shall be valid for the duration of the disqualification of his commercial motor vehicle privileges. When the license becomes invalid, the licensee shall apply for a renewal of the license if he desires to retain his Class “D” or “E” driving privileges. The license shall not be issued until the licensee's commercial driver's license has been surrendered to the office of motor vehicles. The driving record shall reflect the class of license previously held. When the licensee's privilege to operate a commercial motor vehicle has been restored, his commercial driver's license shall be returned to him if it has not expired during the duration of the disqualification. If the commercial driver's license has expired, the licensee shall report to a driver's license office for renewal of the commercial driver's license. (iii) The department shall promulgate rules and regulations necessary to the administration and enforcement of this Subparagraph. (c) As used in this Section, “alcohol concentration” shall mean the concentration of alcohol in a person's blood, breath, or urine, or other bodily substance. When expressed as a percentage, alcohol concentration means the numbers of grams of alcohol per one hundred milliliters of blood, the number of grams of alcohol per two hundred ten liters of breath, the number of grams of alcohol per sixty-seven milliliters of urine, or their equivalents.

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(d) For the purposes of this Section, when operating a commercial motor vehicle, “serious traffic violation” means conviction of any of the following: (i) Excessive speeding, involving any single offense for any speed of fifteen miles per hour or more above the posted speed limit. (ii) Reckless driving, as defined by state or local law or regulation, including, but not limited to, offenses of driving a commercial motor vehicle in willful or wanton disregard for the safety of persons or property. (iii) Improper or erratic traffic lane changes. (iv) Following the vehicle ahead too closely. (v) Except as otherwise provided in this Section, a violation arising in connection with a fatal accident or of a state or local law relating to motor vehicle traffic control, other than a parking violation. Serious traffic violations shall not include vehicle weight and defect violations. (vi) Driving a commercial motor vehicle without first obtaining a commercial driver's license. (vii) Driving a commercial motor vehicle without a commercial driver's license in the driver's possession. (viii) Driving a commercial motor vehicle without the proper class of commercial driver's license. (ix) Driving a commercial motor vehicle without possessing the proper endorsement for the vehicle being operated or for the passengers or cargo being transported. (x) Texting while driving. (e) For the purposes of this Section, when operating a commercial motor vehicle, “railroad grade crossing violation” shall mean a conviction for any of the following: (i) Failure to slow down and check that the railroad grade crossing is clear from an approaching train if the driver is not required to stop at such crossing according to the provisions of this Chapter. (ii) Failure to stop before a railroad grade crossing when there is an approaching train if the driver is not otherwise required to stop at such crossing according to the provisions of this Chapter. (iii) Failure to stop before traversing a railroad grade crossing if the driver is required to stop at such crossing according to the provisions of this Chapter. (iv) Failure to completely traverse a railroad grade crossing without stopping. (v) Failure to obey a traffic control device or the directions of an enforcement official at a railroad grade crossing.

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(vi) Failure to negotiate a railroad grade crossing due to insufficient undercarriage clearance. (2) Any person shall be disqualified for life from operating a commercial motor vehicle for: (a) Use of a commercial motor vehicle or noncommercial motor vehicle by a commercial driver's license holder in the commission of a felony involving the manufacture, distribution, or dispensing of a controlled substance or possession with intent to manufacture, distribute, or dispense a controlled substance, and the commercial driver's license holder shall not be eligible for the ten-year reinstatement. For purposes of this Subparagraph, “felony” shall be defined as an offense under state or federal law that is punishable by death or imprisonment for a term exceeding one year. (b) Use of a commercial motor vehicle or noncommercial motor vehicle by a commercial driver's license holder in the commission of more than one felony arising out of different crime episodes. For purposes of this Subparagraph, “felony” shall be defined as an offense under state or federal law that is punishable by death or imprisonment for a term exceeding one year. (c)(i) Conviction of a second offense of operating under the influence of alcohol, operating with an alcohol concentration of 0.08 percent or more, or operating while under the influence of a controlled substance while operating a commercial motor vehicle or noncommercial motor vehicle by a commercial driver's license holder. (ii) Conviction of a second offense of driving under the influence of alcohol with an alcohol concentration of at least 0.04 percent but under an alcohol concentration of 0.08 percent while operating a commercial motor vehicle. (d) A second offense of leaving the scene of an accident in a commercial motor vehicle or noncommercial motor vehicle by a commercial driver's license holder. (e) A second offense of refusal to submit to an alcohol concentration or drug test, while operating a commercial motor vehicle or noncommercial motor vehicle by a commercial driver's license holder. (f) Two or more of any combination of the offenses listed in Paragraph (A)(4), which arise from different episodes. (g) A second offense of operating a commercial motor vehicle when, as a result of prior violations committed while operating a commercial motor vehicle, the driver's commercial driver's license is suspended, revoked, canceled, or disqualified. (h) A second offense of causing a fatality through the negligent operation of a commercial motor vehicle, including but not limited to the offenses of manslaughter, negligent homicide, and vehicular homicide. (3) Any person shall be disqualified from operating a commercial motor vehicle for a minimum period of three years for any of the offenses listed in Paragraph (A)(4), while transporting hazardous materials required to be placarded, or any other disqualification established by the department by regulation.

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(4) Except as provided in Subparagraph (A)(2)(a) for lifetime disqualification, and in Paragraph (A)(3) for three years disqualification for offenses committed while transporting hazardous materials, any person shall be disqualified from operating a commercial motor vehicle for a minimum period of one year for: (a)(i) A first conviction of a commercial driver's license holder, while operating a commercial motor vehicle or a noncommercial motor vehicle, of operating under the influence of alcohol, operating with an alcohol concentration of 0.08 percent or more, or operating under the influence of a controlled dangerous substance. (ii) A first conviction of a commercial driver's license holder of driving under the influence of alcohol with an alcohol concentration of at least 0.04 percent but under an alcohol concentration of 0.08 percent while operating a commercial motor vehicle. (b) Using a commercial motor vehicle or noncommercial motor vehicle by a commercial driver's license holder in the commission of a felony not described in Subparagraph (A)(2)(a) of this Section. (c) A first offense of leaving the scene of an accident in a commercial motor vehicle or noncommercial motor vehicle by a commercial driver's license holder. (d) A first offense of refusal to submit to an alcohol concentration or drug test, while operating a commercial motor vehicle or noncommercial motor vehicle by a commercial driver's license holder. (e) A first offense of operating a commercial motor vehicle when, as a result of prior violations committed while operating a commercial motor vehicle, the driver's commercial driver's license is suspended, revoked, canceled, or disqualified. (f) A first offense of causing a fatality through the negligent operation of a commercial motor vehicle, including but not limited to the offenses of manslaughter, negligent homicide, and vehicular homicide. (5) Any person shall be disqualified from operating a commercial motor vehicle for a period of not less than sixty days if convicted of two serious traffic violations or convicted of one railroad grade crossing violation, or not less than one hundred twenty days if convicted of three serious traffic violations or two railroad grade crossing violations, arising from separate incidents occurring within a three-year period. Any person shall be disqualified from operating a commercial motor vehicle for a period of not less than one year if convicted of three railroad grade crossing violations arising from separate incidents occurring within a three-year period. (6) For purposes of Paragraph (A)(5) of this Subsection, any person who commits a serious traffic offense as defined in Paragraph (A)(1), including driving under the influence of alcohol or a controlled substance with an alcohol concentration of 0.04 percent or more, while operating a Class “A”, “B”, or “C” motor vehicle, shall be subject to the reporting, suspension, revocation, or enhancement penalties provided for in this Section and R.S. 32:1471 et seq. (7)(a) In accordance with the provisions of this Subsection and the reporting requirements of the Federal Motor Carrier Safety Administration, if the department disqualifies the driving privileges of a person licensed in another jurisdiction, the department shall notify the licensing entity of the jurisdiction in which the person is

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licensed of the person's disqualification of nonresident driving privileges in Louisiana. The notice shall include the disqualification and the violation that caused the disqualification. (b) Any notice of disqualification the department receives from another jurisdiction shall be included in a person's official operating record in accordance with the reporting requirements of the Federal Motor Carrier Safety Administration. (8)(a) The department may report to the Federal Motor Carrier Safety Administration any driver operating a commercial motor vehicle whose driving may constitute an imminent hazard. An imminent hazard shall be defined as the existence of a condition which presents a substantial likelihood that death, serious illness, severe personal injury, or substantial endangerment to health, property, or the environment will occur before the reasonably foreseeable completion date of a formal proceeding commenced to lessen the risk of death, illness, injury, or endangerment. (b) Any disqualification imposed on a driver, licensed in Louisiana, whose driving is determined by the Federal Motor Carrier Administration to constitute an imminent hazard shall become part of the individual's official operating record. (c) A driver disqualified under other provisions of this Section who is simultaneously disqualified under the provisions of this Paragraph shall serve the disqualification periods concurrently. (9)(a) The operating record of a commercial motor vehicle driver shall include those offenses where an individual has pled guilty and been sentenced thereupon, forfeited bond resulting in a final judgment of forfeiture, or been found guilty in a final disposition by a court of competent jurisdiction of violating a law in the operation of a motor vehicle, regulatory actions in which an individual has been adjudged at fault, and any accident in which the driving privileges of the person are suspended for failure to provide liability security or proof of financial security. “Final disposition” for purposes of this Paragraph shall mean a final conviction, not capable of appeal or review, and not subject to dismissal. “Conviction” for purposes of this Section shall include an unvacated adjudication of guilt or a determination in a court of original jurisdiction or by an authorized administrative tribunal that a person has violated or failed to comply with the law; an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court; a plea of guilty or nolo contendere accepted by a court; the payment of a fine or court costs; or a violation of a condition of release without bail, regardless of whether the penalty is rebated, suspended, or probated. A conviction shall occur regardless of whether a person is referred to a remedial or pretrial diversion program as an alternative to the imposition of a penalty, fine, or other sanction. (b) Any law enforcement officer who cites the operator of a commercial motor vehicle for a moving violation on a Department of Public Safety and Corrections motor carrier safety inspection report shall issue the operator of the commercial motor vehicle a ticket in compliance with R.S. 32:398.1 and dispose of such ticket as provided for in R.S. 32:398.2. A citation for a moving violation issued by the Department of Public Safety and Corrections on a motor carrier safety inspection report shall not result in a fine, civil penalty, or fee. B. (1)(a) Notwithstanding any other law to the contrary or Subsection A of this Section, an operator of a commercial motor vehicle shall not have any measured alcohol concentration or any detected presence of alcohol or a controlled dangerous substance while operating or taking part in operating, or in physical control of, a commercial motor vehicle.

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(b) For purposes of this Subsection, an out-of-service order means a declaration by an authorized enforcement officer of a federal, state, Canadian, Mexican, or local jurisdiction, declaring that a commercial motor vehicle driver, a commercial motor vehicle, or a motor carrier operation is out-of-service pursuant to 49 C.F.R. 386.72, 392.5, 395.13, or 396.9, or other compatible laws, or pursuant to the North American Uniform Out-of-Service criteria. (c) Violation of this Subsection or refusal to submit to an alcohol concentration or drug test shall subject the person to a minimum twenty-four-hour out-of-service period. (2) Any driver who is found in violation of an out-of-service order while driving a commercial motor vehicle shall be subject to the following penalties: (a) Upon a first conviction, the driver shall be subject to disqualification for a period of not less than one hundred eighty days nor more than one year. Any driver who is found in violation twice within a ten-year period shall be subject to disqualification for not less than two years nor more than five years. If a driver is found in violation three or more separate times within a ten-year period, the driver shall be subject to disqualification for not less than three years nor more than five years. (b) Upon a first conviction, if the driver was transporting hazardous materials required to be placarded under the Hazardous Materials Transportation Act (49 App.U.S.C.A. 1801-1813) or a vehicle designed to transport more than fifteen persons, the driver shall be subject to disqualification for a period of not less than one hundred eighty days nor more than two years. If a driver is found in violation two or more separate times within a ten-year period while transporting hazardous materials or while operating a vehicle designed to transport more than fifteen persons, the driver shall be subject to disqualification for not less than three years nor more than five years. C. (1) The act of operating a commercial motor vehicle shall constitute implied consent to be tested for any trace of alcohol, or controlled substances. (2) The procedures for testing commercial motor vehicle operators for alcohol or controlled substances, and for reporting the results shall, with any appropriate modifications, be the same as for other drivers. The department may enact special provisions by regulation to take into account the unique requirements imposed by this Section. An officer need only have a reasonable belief that such a driver is under the influence of alcohol or drugs which may impair the driver's ability to safely drive to place him out-of-service. If a person operating a commercial motor vehicle refuses to submit to an alcohol concentration or drug test, the officer shall inform him that he may be disqualified from driving for the time periods specified in this Section and may be subject to stiffer criminal and civil penalties. D. (1) Except as otherwise provided in this Section, the department shall notify, in accordance with the reporting requirement of the Federal Motor Carrier Safety Administration, the licensing entity of another jurisdiction when any driver licensed by that jurisdiction is convicted in Louisiana of a traffic control violation, other than a parking violation, under either of the following circumstances: (a) Regardless of the type of vehicle in which the violation occurred, the person convicted holds a commercial driver's license. (b) Regardless of the type of license the person convicted holds, the violation occurred in a commercial motor vehicle.

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(2) Licensing entities in other jurisdictions shall notify, in accordance with the reporting requirement of the Federal Motor Carrier Safety Administration, the department when a person holding a Louisiana driver's license is convicted of a traffic control violation, other than a parking violation, under either of the circumstances described in Paragraph (1) of this Subsection. When the department receives notice as provided for in this Paragraph, the conviction shall become part of the driver's official operating record. E. (1) Unless a longer suspension or disqualification period is provided for in Subsections A through D of this Section, a commercial driver's license applicant or holder shall be disqualified from operating a school bus for a period of ten years for the following: (a) Conviction of driving under the influence of alcohol or a controlled substance while operating a commercial motor vehicle or noncommercial motor vehicle. (b) Refusal to submit to a chemical test for the purpose of determining the alcoholic content of his blood when arrested for an offense arising out of acts alleged to have been committed while the driver was driving or in actual physical control of a commercial motor vehicle or noncommercial motor vehicle while believed to be under the influence of alcoholic beverages or a controlled substance. (2) Upon application of the driver, the department may reinstate the “S” endorsement if the driver meets all of the following conditions: (a) The driver is not convicted of driving under the influence of alcohol or a controlled substance while operating a commercial motor vehicle or noncommercial motor vehicle for a period of five years after conviction of the disqualifying offense or refusal. (b) The driver has not refused to submit to a chemical test for the purpose of determining the alcoholic content of his blood when arrested for an offense arising out of acts alleged to have been committed while the driver was driving or in actual physical control of a commercial motor vehicle or noncommercial motor vehicle while believed to be under the influence of alcoholic beverages or a controlled substance for a period of five years after the disqualifying offense or refusal. (c) The driver has successfully completed medical treatment or medically approved group therapy or special education courses for or about the disease of alcoholism, alcohol abuse, or drug abuse, in a suitable public or private institution or program approved by the appropriate state authority following the disqualifying offense or refusal. Louisiana Commercial Drivers Guide (dmv.org) Moore v. State Dept. Of Public Safety, 655 So. 2d. 644 (La. App. 2 Cir. 1995)

o Parker v. Stalder, 97-727 (La. App. 3 Cir. Dec. 10, 1997), 704 So. 2d 898 o o LSA-R.S. 40:961 o 21 CFR § 1308 (Schedules I-V) - Schedule of Controlled Substances o LSA-R.S. 32:420 o 49 CFR § 383.3 (c) - Exception for certain military drivers o LSA-R.S. 32:414.2 o 49 CFR § 383.51 - Disqualification of Drivers

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o LSA-R.S. 32:414.2 o 49 CFR § 383.51 (c) - Disqualification for serious traffic violations o LSA-R.S. 32:414.2 o 49 CFR § 383.51 (d) - Railroad-highway grade crossing violations o LSA-R.S. 32:414.2 o 49 CFR § 383.51 (e) - Disqualification for violating "out-of-service" orders o LSA-R.S. 32:414.2 o 49 CFR § 383.53 (c) - Special penalties pertaining to railroad-highway grade crossing

violations o LSA-R.S. 32:414.4 o 49 CFR § 384.209 - Notification of traffic violations o LSA-R.S. 32:404.1 o 49 CFR § 384.210 - Limitation on licensing o LSA-R.S. 32:414.2(A)(9)(b) o 49 CFR § 384.225 - CDLIS driver recordkeeping o LSA-R.S. 32:414.2(A)(9)(a) o 49 CFR § 384.226 - Prohibition on masking convictions o LSA-R.S. 32:414.2 o 49 CFR § 392.5 - Alcohol prohibition o LSA-R.S. 32:414.2 o 49 CFR § 392.5 (c) - Alcohol prohibition: "Out-of-Service"

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