§383.51 Disqualification of drivers.

Question 1: Are States expected to make major changes to their enforcement procedures in order to apply the alcohol disqualifications in the Federal regulations?

Guidance: No. §383.51 and 392.5 do not require any change in a State’s existing procedures for initially stopping vehicles and drivers.

Roadblocks, random testing programs, or other enforcement procedures which have been held unconstitutional in the State or which the State does not wish to implement are not required.

Question 2: Is a driver disqualified for driving a Commercial Motor Vehicle (CMV) while off-duty with a blood alcohol concentration over 0.04 percent?

Guidance: Yes. §383.51 applies to any person who is driving a Commercial Motor Vehicle (CMV), as defined in §383.5, regardless of the person’s duty status under other regulations. Therefore, the driver, if convicted, would be disqualified under §383.51.

Question 3: Does a temporary license issued pursuant to the administrative license revocation (ALR) procedure authorize the continued operation of Commercial Motor Vehicle (CMV)s when the license surrendered is a CDL? Does the acceptance of a temporary driver’s license place the CDL holder in violation of the one driver’s license requirement?

Guidance: The ALR procedure of taking possession of the driver’s CDL and issuing a ‘‘temporary license’’ for individuals who either fail a chemical alcohol test or refuse to take the test is valid under the requirements of part 383. Since the CDL that is being held by the State is still valid until the administrative revocation action is taken, the FHWA would interpret the document given to the driver as a ‘‘receipt’’ for the CDL, not a new ‘‘temporary’’ license. The driver violates no CDL requirements for accepting the receipt which may be used to the extent authorized.

Question 4: Is a driver disqualified under §383.51 if convicted of driving under the influence of alcohol while operating a personal vehicle?

Guidance: The convictions triggering mandatory disqualification under §383.51 all pertain to offenses that occur while the person is driving a Commercial Motor Vehicle (CMV). However, a driver could be disqualified under §383.51(b)(2)(i) if the State has stricter standards which apply to offenses committed in a personal vehicle. (The same principle applies to all other disqualifying offenses listed in §383.51.)

Question 5: Would a driver convicted under a State’s ‘‘open container’’ law be disqualified under the CDL regulations if the violation occurred while he/she was operating a Commercial Motor Vehicle (CMV)?

Guidance: If a conviction under a particular State’s ‘‘open container law’’ is a conviction for ‘‘driving under the influence’’ or ‘‘driving while intoxicated,’’ and if the person committed the violation while driving a Commercial Motor Vehicle (CMV), then the driver is disqualified for one year under §383.51, assuming it is a first offense.

*Question 6: Is a driver who possesses a valid commercial driver’s license (CDL) issued by their State of residence, but who is suspended by another State for reasons unrelated to the violation of a motor vehicle traffic control law, disqualified from operating a commercial motor vehicle (CMV) in accordance with provisions of the Federal Motor Carrier Safety Regulations?

Guidance: Yes. Currently, both section 383.5, which defines the term disqualification as it applies to drivers required to have a CDL, and section 391.15, which applies to other CMV drivers subject to Federal Motor Carrier Safety Regulations, include the suspension of a person’s license or privilege to drive as an action requiring that person to be disqualified from operating a CMV. Neither of these regulatory provisions limit such suspensions to those imposed by the State where the driver is licensed, nor do these regulations specify the grounds upon which a suspension must be based.

Be advised, however, that the Federal Motor Carrier Safety Administration has proposed in 66 FR 22499, Docket No. FMCSA-00-7382, published May 4,2001, to limit the basis of the suspension to those resulting from a driving violation. If the rule is finalized, the answer would be no.

*Question 7: Must the State use the date of conviction, rather than the offense date, to calculate the starting and ending dates for the driver disqualification period specified in 49 CFR 383.51?

Guidance: Yes, the State must use the date of conviction or a later date, rather than the offense date, as the basis for calculating the starting and ending dates for the driver disqualification period. The State may allow the driver additional time after the conviction date to appeal the conviction before the disqualification period begins. The use of the conviction date (or the date when all appeals are exhausted) ensures that the driver receives due process of law but(if the conviction is upheld)still serves the full disqualification period 49 CFR 383.51 requires. For example, a driver is cited for a disqualifying offense on May 1 and is convicted of the offense on July 1. If the offense date were used for the starting date of the disqualification, it would shorten the actual disqualification by 2 months. Using the conviction date or a later date when all appeals are exhausted ensures that the driver serves the full disqualification period.

*Question 8: Must the State use the offense date or the conviction date to determine if two or more serious traffic convictions occurred within a 3-year period?

Guidance: The State must use the offense date to determine if two or more serious traffic convictions fall within the 3-year period specified in 49 CFR 383.51 Table 2. If the conviction date were used, delays in bringing a case to trial could push the second conviction out side the 3-year period, thus defeating the purpose of the rule. For example, a driver is cited for a first serious traffic violation on February 1, 2001 and is convicted on March 1, 2001. The driver is cited for a second serious traffic violation on January 15, 2004. The trial is set for February 27, 2004, but the driver asks to have the trial delayed because he has something important to do that day. The new trial date is set for March 15, 2004 and he is convicted of the second violation on this date. If the conviction dates are used, the two offenses are not within three years of each other and no disqualification action is taken on the driver. If the offense dates are used, the driver is disqualified regardless of the conviction date because the offenses for which he was convicted are within three years of each other.

*Editor’s Note: This interpretation was issued after the interpretations were published in the Federal Register in April 1997.