Ohio CDL DUI: Defense Strategy for Commercial Drivers

Article By Jeremiah Denslow | December 22, 2016
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Jeremiah Denslow understands that a drinking and driving charge can have serious consequences for anyone, however, Ohio’s commercial drivers face some of the most significant penalties of all. For example, an Ohio CDL DUI and the ALS suspension that accompanies most DUI charges brings an automatic one-year suspension of a driver’s commercial driver license. Worse yet, Ohio law does not permit commercial drivers to utilize driving privileges for work. That means when a commercial driver is charged with a CDL DUI and a DUI ALS suspension, they are automatically sentenced to a full year out of work and with no income. Keep in mind, the CDL DUI ALS suspension often stays in place even when the underlying CDL DUI charges are eventually dismissed.

So what should an Ohio commercial driver do when cited for CDL DUI and given a CDL DUI administrative license suspension? They should immediately retain a top Ohio CDL DUI lawyer to appeal the suspension. There are many reasons for a CDL DUI ALS appeal, including: (a) whether the police officer had reasonable grounds to believe the Ohio commercial driver and CDL DUI suspect was under the influence of alcohol; (b) whether the police officer had reasonable grounds to believe the Ohio commercial driver and CDL DUI suspect was driving a vehicle on property used by the public for travel or parking; (c) whether the police officer requested the Ohio commercial driver and CDL DUI suspect to submit to the chemical test; (d) whether the police officer informed the Ohio CDL DUI suspect of the consequences of refusing to be tested or of submitting to the test; (e) whether the commercial driver and Ohio CDL DUI suspect provided a test above the legal limit; or conversely (f) whether the Ohio commercial driver and CDL DUI suspect refused the test; and (g) whether the Ohio CDL DUI suspect was within the state of Ohio when the incident occurred.

While it may initially seem like the basis for appeal is limited, a good CDL DUI defense attorney can employ a little creativity to appeal on other grounds as well. The lawyer simply needs to modify the language of their argument so that it fits the law that regulates CDL DUI ALS appeals. For example, many police departments, for whatever reason, use old BMV 2255 forms when following ALS protocol. For those that don’t know, the BMV 2255 form is a two page document that a police officer is required to complete before/during/after administering a CDL DUI chemical test or breath test to a CDL DUI suspect. The Ohio Bureau of Motor Vehicles publishes an updated 2255 form every few years to reflect changes in law.  The old forms will typically contain incorrect information as they relate to things like the length of a suspension and the consequences of a refusal/high test for Ohio CDL holders.

Thus, if the police officer administering a breathalyzer to an Ohio CDL holder and CDL DUI suspect uses a 2010 version of the BMV 2255 form, the warnings given to the CDL driver will be erroneous as a matter of law. Numerous courts have determined that when a commercial driver is erroneously advised regarding the consequences of refusing to submit to a chemical test for alcohol, the CDL holder’s consent is involuntary, and the chemical test or breathalyzer is inadmissible. Other courts have decided that this particular police error vitiates ANY action taken by the Ohio commercial driver and CDL DUI suspect in response to such information. For an ALS appeal, the incorrect warnings mean the police officer didn’t properly inform the Ohio commercial driver and DUI suspect of the consequences of refusing to be tested. Therefore, the DUI administrative license suspension will be terminated and the CDL returned to the Ohio commercial driver and CDL DUI suspect.

This simple strategy shows how Ohio’s commercial drivers can keep their CDL when facing a DUI and an ALS.  It’s really that simple.