Portland Criminal Defense Attorney BlogThis is the blog for James F. O'Rourke, Jr. and Associates. In this blog we will present information, commentary and our own opinions and philosophy regarding the areas of law in which we practice. It is the purpose of this blog to be informative, helpful and thought provoking. The dynamic interface between the individual and the government is the law. What we mean by that is that when the government sets certain goals, it creates laws to achieve those goals. Those laws touch the lives of the people under the jurisdiction (power) of the government. As criminal defense lawyers, it is our job to make sure that the people we represent receive all of their rights and protections under the law. In some cases, that involves advocating for changes in the law or reinterpretation or correct application of the existing law. As personal injury lawyers, it is our job to make sure that our clients receive all their rights under the law and to secure compensation for the people we represent for injuries and damages they suffer which are caused by the intentional, reckless or negligent acts or omissions of others. |
2009 Legislature brings Oregon into Compliance with Federal Commercial Drivers License Rules – Persons Holding Commercial Drivers Licenses Disqualified from DUII Diversion
The 2009 legislature made changes in Oregon Law in order to bring the State into compliance with the rules of the Federal Motor Carrier Safety Administration. Since 2002, federal rules have prohibited any state from offering any type of “diversion” or similar program to a commercial license holder, even for citations received while the person was using a private vehicle. The restrictions includes all traffic offenses, even speeding tickets.
House Bill 129 amends ORS 801.307 and defines what it means to “hold a commercial driver’s license” in Oregon. Under the new law “hold” means that a person has a commercial drivers license that is not expired, or expired for less than one year. A person “holds” a CDL, even if it is suspended, as long as it is not revoked.
This change highlights one of the common traps for the unwary in DUII cases. We have seen many clients who have a CDL but have not driven commercially for years. Often they simply renew the CDL with the thought that they may use the privilege again one day. However, if such a person receives a DUII, they are barred from the DUII Diversion Program because of the dormant CDL.
Initially, there was substantial litigation about what was, and was not, a “valid” CDL, litigated in the context of what it meant to “hold” a commercial drivers license. Most of these dormant CDL licensees hadn’t filed the required medical certifications for years and could not have driven commercially at the time of their DUIIs. This issue has been mostly settled for DUII Diversion eligibility for the last two years.
This legislative change sets to rest all of the arguments for a dormant CDL holder who is cited for DUII. Unless your license has been expired for over a year, or has been revoked, you are a CDL driver, even if you haven’t been in a commercial vehicle for decades.
No one plans on getting a DUII. But, persons with a dormant CDL might want to think twice about renewing their CDL. That CDL you are not using will keep you out of alternative programs like DUII Diversion, as well as alternatives to speeding and seatbelt tickets.
This is a good example of a rule that is well intended but overly broad. Obviously, it is a good idea for employers and the public to know the true driving record of a person who regularly operates large commercial vehicles or handles dangerous cargo. But, when the law effects a person who is not an active commercial driver it crosses over into unfairness for an inactive commercial driver who is a first time offender.
This post relates to persons who hold a CDL from any state and received an Oregon DUI.
Tags: Oregon DUI
Uncategorized | jforourke November 18, 2009
