The Facts About DUI for Colorado’s Commercial Drivers

If you depend on a commercial driver’s license for your livelihood, a DUI charge can seriously jeopardize your future. One conviction can put you out of work for at least a year. A second DUI could make you permanently ineligible for a CDL. You’re probably well aware of all this. But you still have the right — and the ability — to defend yourself.  Here are the facts about DUI for Colorado’s commercial drivers.

In this Article:

• What Constitutes a Commercial Driver DUI?
• The Arrest Process
• BAC and Chemical Testing
• Penalties and Consequences of a CDL DUI Conviction
• Long-Term Consequences of a CDL DUI
• Defense Strategies to Save Your CDL

What Constitutes a Commercial Driver DUI? 

A person who operates an automobile while they are chemically impaired puts themselves and others in danger. Whether it’s alcohol, drugs, or a combination of both, driving under the influence (DUI) is a serious crime that warrants harsh penalties even for regular individuals caught driving while impaired.

The Legal Criteria for a DUI 

Anyone who is impaired while operating a motor vehicle can be charged with DUI or DWAI (Driving While Ability Impaired). The charge would depend on either their level of observable impairment — swerving, making wide turns, driving too fast or too slow — or the percentage of alcohol in their blood.

Anyone caught driving with a blood alcohol concentration (BAC) of .08 percent or higher will be arrested for DUI per se. This is an unavoidable charge, even for those with higher alcohol tolerance and “don’t feel drunk.”

Commercial drivers are held to a higher standard. A CDL driver on duty is considered “over the legal limit” at just .04 percent BAC — half the threshold for a non-CDL holder.

This limit is set by the Federal Motor Carrier Safety Administration (FMCSA), but it is codified in state law under Colorado Revised Statute 42-2-126 (c): “Excess BAC CDL” means that a person drove a commercial motor vehicle in this state when the person’s BAC was 0.04 or more at the time of driving or at any time thereafter.” 

As a commercial driver, you can be charged if:

• You are operating a commercial vehicle with a BAC of .04 percent or higher, or
• You are under age 21, and had a BAC of at least .02 but under .04 while operating a commercial vehicle, or any time thereafter.

Why is There a Higher Standard for Commercial Drivers? 

Commercial drivers are professionals. As such, they spend more time on the road and are expected to use greater caution. For example: A 10-ton 18-wheeler going 40 mph over the speed limit poses greater danger than a Prius at the same speed. Naturally, the same applies when that 18-wheeler is operated by someone who is legally drunk.

Also, it takes extensive skills and training to operate certain commercial vehicles. Many carry heavy equipment or hazardous materials.

What if You’re Off Duty? 

Unless you are visibly impaired, you won’t be charged if you drive your personal vehicle off-duty with a BAC of 0.04% or lower.

However, at .05 to .07, you can still be charged with a DWAI (Driving While Ability Impaired). This is a lesser charge, but it is still serious.

If you are charged with a DWAI or DUI on your own time, you can still lose your job as a commercial driver.

Even if you are off the clock, your CDL can be disqualified if you get caught driving a commercial motor vehicle (CMV) with a .04 BAC. — FMCSA 383.5.

The Arrest Process 

If you were pulled over and arrested for DUI, the police should have followed a certain procedure. The process should have included:

• Having a reason to pull you over in the first place
• Asking you to perform a roadside sobriety test and/or a preliminary alcohol screening breathalyzer (PAS)
• Allowing you to refuse the roadside sobriety test and/or PAS
• Giving you a choice between an evidentiary breath test or a blood test once you’re in custody
• Booking, fingerprinting, and
• Serving a summons (with either someone picking you up or a temporary detention in a holding cell while you sober up), or an opportunity to post bail with you are arrested

Do you want even more information about the arrest and booking process for DUI?  Check out our legal guide about it.

Rights of the Commercial Driver 

A commercial driver retains all the rights of other drivers, even while on duty. This means that law enforcement officials cannot pull you over without a good reason.

This is important to keep in mind. CDL holders still have rights against police harassment and illegal search and seizure. The police cannot pull you over “on a hunch” to see if you are driving while impaired. If they do, their case can be thrown out for lack of probable cause to stop you in the first place.

Police officers have cause to stop drivers if they are:

• Speeding, or violating other traffic laws
• Driving erratically, swerving, ignoring lane markers
• Following other cars too closely
• Slow to respond to traffic signals, such as waiting too long to go on green
• Making excessively wide turns
• Breaking or accelerating erratically
• Driving at night with headlights off, or blinkers not working
• Driving with a broken windshield

Industry Policies and a Commercial Driver’s Rights 

Of course, you still have to follow the policies of your company or industry. For example: The FMCSA mandates that all trucking companies drug test their employees and drivers. It also requires a four-hour waiting period after consuming alcohol before a CDL holder can drive again. Any driver caught violating the four-hour wait can be placed “out of service” for 24 hours.

These kinds of industry policies do not violate your rights as a commercial driver. They keep the road safe – and you out of legal trouble.

BAC and Chemical Testing

Blood Alcohol Concentration (BAC) measures the percentage of alcohol in your blood.

A BAC of 0.01% means one part alcohol per 1,000 parts of blood, which is acceptable for adults. A BAC of 0.02% is still acceptable for adults. And most individuals will not get arrested for DUI or DWAI for driving with a BAC of .03 or lower unless the driver shows observable signs of impairment despite the low BAC.

If you are arrested on suspicion of alcohol DUI, you can choose either a blood test or breath test.

Blood Tests 

A blood draw measures BAC by going straight to the source. During a blood test, multiple samples can be drawn and preserved. This allows for easy re-testing if the results are in dispute.

Breath Tests

When you drink alcohol, it’s absorbed into your bloodstream and pumped to your brain and lungs. You exhale the alcohol when you breathe. A breath test measures the BAC from a deep-lung breath sample.

The roadside breath test can be — and should be — refused, as its results are not admissible in court. However, an evidentiary post-arrest breath test is considerably more accurate.

You may prefer a breath test if you don’t like needles. However, breath samples cannot be preserved or retested. If you blow an incriminating BAC on a breath test, you’re stuck with it.

Urine Tests 

If you’re arrested for a drug-related DUI, you might be asked for a urine sample to detect various drugs, such as:

• cannabis,
• opioids,
• stimulants,
• barbiturates, and
• benzodiazapines.

These substances can impair driving and stay inside your urine for 1-3 days. Marijuana and benzodiazepines potentially linger even longer.

Penalties for Refusing Chemical Testing 

If you drive in Colorado, you give “express consent” to be tested for chemical impairment if arrested under probable cause. The probable cause leads to the arrest. The arrest activates “express consent.”

You can still refuse to be tested for alcohol or drugs after arrest. However, remember that refusing this test will lead to a swift one-year suspension of your CDL, and other penalties, such as:

• a minimum one-year suspension of your personal driver’s license
• “persistent drunk driver” designation – even if it’s your first arrest
• mandatory alcohol and/or drug treatment
• an ignition interlock system in your personal vehicle for two years
• maintaining an SR22 form (certified proof of coverage) with your auto insurance and the DMV
• having your refusal to be tested admitted as evidence in your court trial
• a three-year suspension of your commercial driver’s license, if you’re transporting hazardous materials when stopped

Other Consequences of Refusal 

There are two more important facts about refusing to submit to post-arrest BAC testing:

1. The suspension holds even if you’re not ultimately convicted of criminal DUI/DWAI. If the DMV determines you were impaired while driving, that’s enough to lose your CDL.
2. Colorado can suspend your CDL for life, and your personal license for multiple years, if you have previously been convicted of DUI or DWAI.

Penalties and Consequences of a CDL DUI Conviction

A first-time conviction for DUI in a commercial motor vehicle (CMV) results in an automatic one-year suspension of your CDL. If you were transporting hazardous wastes when you were arrested, the suspension is three years.

The first conviction will not necessarily remove your CDL privileges forever. You can petition the Department of Motor Vehicles to have your CDL reinstated if you …

• complete your sentence
• pay all your fines
• keep an otherwise clean record

However, the stigma of a DUI stays with you forever. A DUI conviction can never be sealed or expunged. It will always show up when a potential new employer runs a check on your driving record.

First-Time Conviction Penalties

Losing your CDL for a year (or three) is not the only penalty you face if you’re convicted. Other consequences can include:

• a 9-month suspension of your personal driver’s license,
• $600 – $1000 in fines (first offense)
• 48-96 hours of public service
• 12 points added to your personal driver’s license
• up to two years of probation
• five days to one year in jail

If the DMV finds that you committed a DUI, you’ll also be required to install an ignition interlock device (IDD) in your personal vehicle. This is a condition the DMV imposes on people who wish to retain some driving privileges. An IDD is a breathalyzer-type device that’s wired to your car’s ignition. If your breath reveals that you’ve been drinking, your car will not start.

How long you must use an IDD after a first conviction depends on the DMV. Typically, it’s between eight to 24 months.

Second-Time Conviction Penalties

A second DUI conviction — whether you were on duty or not — will result in a lifetime suspension of your CDL.

Now, technically, you can get your CDL reinstated from a lifetime ban after 10 years. However, the process is difficult, and one a lawyer cannot assist with.

A second DUI conviction also brings:

• a one-year suspension of your personal driver’s license
• $600 – $1500 in fines and court costs
• 48 – 120 hours of community service
• up to two years of probation
• two to five years of using an ignition interlock device
• 10 days to one year in jail

Long-Term Consequences of a CDL DUI

It’s a long, arduous climb back to normal driving privileges once you’re convicted of DUI. First, there are the criminal penalties, such as fines, public service, and jail time. Then there are the administrative hoops you must jump through just to continue operating a motor vehicle.

We’ve talked about those. Unfortunately, the negative repercussions of a DUI conviction go beyond the criminal courts and the DMV.

Insurance Difficulties

A DUI conviction has significant impacts on your insurance coverage, such as:

1. SR22 Requirement: An SR22 is a form showing proof of insurance. As a condition of your probation and driving privileges, you must file an SR22 with your car insurance provider. In turn, the carrier reports any coverage or payment lapses to the DMV. Failing to maintain coverage is an automatic violation of your probation.
2. Cost Increases: Insurance rates can spike significantly after a DUI conviction. In fact. DUI triggers larger premium increases than any other traffic offense. Being classified as a high-risk driver can more than double your premiums. On average, DUI-convicted drivers pay $729 more for the same coverage that non-DUI drivers get.
3. Policy Cancellations: Some insurance carriers cancel policies after a DUI conviction. You’ve become too risky for them. Others may raise premiums and remove safe driver perks. Reputable companies might be hesitant to insure you. As a result, you may have to settle for higher prices from predatory “high-risk” insurers.

Also: License suspension or revocation for over six months can cause the original auto insurance policy to lapse, further increasing the cost of premiums upon reinstatement.

Employment Consequences

A DUI conviction can all but end your chances of working again as a professional driver.

First, the one-year suspension of your CDL means you cannot legally work as a driver for 12 months. Even after your CDL is reinstated, you’ll likely have difficulty landing a good job. You’ll have to find a company that’s willing to take a chance on you. This could mean less pay, longer hours, fewer benefits, and being subjected to periodic drug and alcohol testing.

That’s not all. A DUI conviction, especially in a job that specifically prohibits impaired driving, will likely deter other prospective employers.

Getting Your CDL Reinstated after a DUI Conviction

Once you’ve waited out the year-long suspension of your CDL, getting it reinstated is anything but automatic. It’s a fairly difficult process.

First, you must meet the requirements for reinstatement, which include:

• Completion of your suspension period (one or three years)
• Completion of an alcohol/drug education and treatment program
• Payment of all DUI-related fines and CDL reinstatement fees
• Installation of an ignition interlock device (IID), if ordered, and
• Filing an SR22 with the DMV as proof of continuous auto insurance

Once you’ve met the requirements, you must then complete the process for reinstatement. This includes:

1. Filing an Application for Reinstatement: You must complete a specific form and submit it to the Colorado Department of Motor Vehicles to begin the process.
2. Completing all the Requirements: Those are listed above. And …
3. Further Investigation: The DMV will review your application and check to make sure you have completed all the requirements. The department will also investigate your character, your recent record, and assess your driving skills.
4. Final Approval: If the DMV determines that it is safe to let you operate a CMV again, it will reinstate your CDL.

Seeking legal guidance is a good idea due to the complexity and time-consuming nature of the process. Multiple violations and/or refusal to submit to a BAC test can further complicate your path to reinstatement. Understanding these details is crucial for CDL holders seeking reinstatement.

Defense Strategies to Save Your CDL

Your first, most crucial move is hiring an experienced criminal defense attorney. Attempting to fight a DUI charge on your own can leave you legally outmatched. Given the severe consequences of a conviction, this is no time to go it alone.

A DUI charge can be fought on two fronts by a skilled attorney: challenging the arrest itself and then challenging the chemical test results.

Challenging the Arrest 

This can be an effective way to shut down the prosecution before it even gets off the ground.

Remember, law enforcement cannot stop you without probable cause. Even when they have cause to pull you over, they cannot arrest you without more probable cause.

Absent a reasonable, articulable suspicion, any evidence obtained after you’ve been pulled over can be suppressed by the judge. Your attorney will assess the evidence to determine if the arrest can be questioned. If so, they can move to suppress it.

Illegal Stops and Searches

The police can:

• pull you over (with reasonable suspicion)
• ask for your license and registration, and
• request you leave your vehicle.

However, they cannot go rummaging through your car

• without a warrant,
• without probable cause, or
• without your consent.

If police conducted an unlawful stop or search, any evidence seized may be inadmissible, and the charges dismissed.

Here’s an example scenario:

Based solely on a hunch, police follow and stop your delivery vehicle as it leaves a bar late at night. You were not speeding or driving erratically. During the stop, they smell alcohol on your breath. Then they find an empty beer bottle, and arrest you for DUI when you refuse a roadside sobriety test. Once you’re in custody, they conduct a blood test and it shows a BAC of exactly .04. That’s enough to get you in serious trouble.

Except … the police had no reason to stop you in the first place. It is not against the law to be driving away from a bar at night. A hunch is not enough of an articulable suspicion to stop you. Therefore, all evidence gathered during and after the stop is inadmissible. This includes the empty beer bottle and the incriminating blood test.

Challenging Chemical Test Results 

Blood alcohol content sure can look like damning evidence of excessive alcohol consumption. However, it is not flawless. Evidentiary chemical tests must adhere to rigid standards to be considered admissible as evidence. Numerous factors may influence the person being tested and raise questions about the accuracy of the test, such as:

• Rising BAC Content: Alcohol enters the bloodstream slower than you drink it, so your BAC may have increased between driving and testing.
• Errors in DUI Blood Testing: Your lawyer can challenge issues like blood contamination or fermentation of the sample.
• Inconsistent Test Results: Discrepancies in results from separate tests weaken the case against you. This is why most lawyers, myself included, recommend that you choose a blood draw over a breathalyzer.
• Non-Compliance with Testing Procedures: Errors in protocols, such as incorrect mixing or poor record-keeping, can be called into question.
• BAC Affected by Diet or Health: Conditions like acid reflux or heartburn may impact test accuracy.
• Residual Mouth Alcohol: Alcohol remaining in your mouth after drinking can affect breath test results.
• Breath Testing Errors: Factors like body temperature or radiation interference can compromise breathalyzer accuracy.
• Officer Botched the Breath Test: Your lawyer can point out any deviations from correct protocols by the arresting officer.

Two More Facts to Consider

1. You’re not convicted yet: You are innocent until proven guilty. Never underestimate the effectiveness of your defense, especially when presented by an experienced criminal defense attorney. Keep in mind, that police officers have cameras on their dashboards and attached to their uniforms. They must turn on these cameras during a stop and/or arrest. It will never be your word against theirs; video evidence can be subpoenaed.
2. Your defense is a marathon, not a sprint: Do not expect to have your CDL DUI matter resolved in a month or two. This could be a long, drawn-out process — which is usually necessary to ensure all your rights to a formidable defense.

Don’t Leave Your CDL Career in the Ditch 

At Robinson & Henry, we understand the stress of facing a DUI charge when your commercial driver’s license at stake. We can help you through this. We’ll strive to defend you against the charges so you can keep your livelihood. Call us at 303-688-0944 for your free case assessment.