Submitted by Co Authors Robert G. Walton and Gretchen Ebner
People often confuse the meanings of, and relationships between, disqualification and suspension relative to a commercial driver’s license (CDL). The holder of a CDL can be subject to disqualification and/or suspension.
A disqualification is administrative, can only be imposed and/or terminated by the BMV, and prohibits a CDL holder from operating a commercial motor vehicle during its effective period. See R.C. 4506.01(G). A suspension can be imposed against a CDL holder by a court (for example, for an OVI conviction) or administratively (for example, an ALS for an implied consent refusal). If the license of a CDL holder is suspended, a court can give limited driving privileges in accordance with relevant statutes. However, it cannot give privileges to operate a commercial motor vehicle. See R.C. 4506.161. A suspension imposed under R.C. R.C. 4511.191 or R.C. 4511.19 runs concurrently with any companion disqualification. See R.C. 4511.191 (G) and R.C. 4510.13 (C)(2).
If a CDL holder is disqualified from operating a commercial motor vehicle, but is not under suspension, the holder can obtain a non-commercial driver’s license. See R.C. 4506.16 (K).
Relationship Between Implied Consent Statutes and Disqualification
When a person is arrested for OVI under R.C. 4511.19, that person is subject to R.C. 4511.191. R.C. 4511.191 (A)(2) provides that any person who operates a vehicle . . . upon a highway or any public or private property used by the public for vehicular travel or parking within this state . . . is deemed to have given consent to a chemical test of his or her breath, blood, or urine to determine its alcohol concentration if arrested for OVI. By its clear language, the statute includes all types of driver’s license holders (class D and CDL) regardless of whether they are operating non-commercial or commercial vehicles.
If a person arrested for OVI refuses to submit to a chemical test under R.C. 4511.191, an ALS is imposed for a period of at least one year. If that person is a CDL holder, the BMV will also disqualify him from operating a commercial motor vehicle pursuant to R.C. 4506.16(D)(1). That statute mandates disqualification upon a first suspension imposed under R.C. 4511.191. It is clear from the above-referenced statutes that the suspension and disqualification for a refusal are to be imposed against a CDL holder irrespective of the type of vehicle being operated, if the person is arrested for OVI and charged with violating R.C. 4511.19.
Any person who is under an ALS, whether a class D or CDL holder, can appeal that suspension under R.C. 4511.197. If the appeal is granted under the statutory grounds in R.C. 4511.197 or the due process grounds adopted by Ohio appellate courts (and recognized by the BMV in its Form 2261) the ALS is vacated and becomes a nullity. In that event, the BMV should vacate the disqualification because it was based upon a suspension that was vacated.
In some cases, a CDL holder operating a non-commercial vehicle is arrested for OVI and charged under R.C. 4511.19, successfully appeals the refusal suspension imposed under R.C. 4511.191, and avoids an OVI conviction. In the past, there have been occasions where the BMV improperly disqualified a CDL holder notwithstanding the foregoing. Specifically, the BMV relied on R.C. 4506.17 in support of disqualification. R.C. 4506.17 is an implied consent statute which mandates that refusing a chemical test under certain circumstances results in the disqualification of a CDL holder’s right to operate a commercial motor vehicle.
Last year, the authors successfully challenged a disqualification that was imposed under the above-described circumstances in Lachowski v. Petit, 2019-Ohio-3328.
Lachowski v. Petit
Lachowski was arrested while operating a non-commercial vehicle and charged with OVI under R.C. 4511.19. All persons prosecuted under R.C. 4511.19 are subject to implied consent under R.C. 4511.191. Lachowski refused to submit to a chemical test and a one year refusal ALS was imposed against his CDL.
Lachowski appealed the ALS in the trial court, his appeal was granted, and the ALS was vacated. Ultimately, the OVI charge was amended and he pleaded to reckless operation. In view of the foregoing, it was clear that Lachowski could not be disqualified from operating a commercial motor vehicle under R.C. 4506.16(D)(1), as the refusal ALS, which is a predicate to such a disqualification, was vacated.
Notwithstanding the foregoing, the BMV sent Lachowski a notice disqualifying his right to operate a commercial motor vehicle for one year under R.C. 4506.17. According to the BMV, that statute permitted a disqualification for refusing a chemical test, regardless of whether a CDL holder was driving a commercial or non-commercial vehicle. Lachowski disagreed with the BMV’s interpretation of R.C. 4506.17. Specifically, R.C. 4506.17 (B) limited that statute to persons who were found to be driving a commercial motor vehicle while having a measurable or detectable amount of alcohol in the person’s breath. The essence of Lachowski’s argument was that the statute had to be read in its entirety, and it’s clear and unambiguous language limited it to a driver of a commercial motor vehicle.
Lachowski began the process of challenging the disqualification. First, he requested a hearing before a hearing officer appointed by the BMV. After that person upheld the disqualification, Lachowski filed his objections to the hearing officer’s findings of fact and conclusions of law, which were denied by the BMV. The next step in the process was to appeal to an impartial decision maker, a Court of Common Pleas. That Court agreed with Lachowski’s position. Subsequently, the BMV appealed to the Eleventh District Court of Appeals. The Court of Appeals determined that the statute must be read as a whole to ascertain its plain meaning. Thus, it found that “because the undisputed facts confirm that Lachowski was driving his personal vehicle at the time of his OVI arrest, and not a commercial vehicle, R.C. 4506.17 does not apply.”
Legislative Amendment and Relevant Current Issues
After the Common Pleas Court agreed with Lachowski, but before the Eleventh District’s decision, the legislature amended R.C. 4506.17. The essence of the amendment was to make this commercial driver’s license statute applicable to a CDL holder, regardless of what type of vehicle was driven. In its analysis of the Bill, the Legislative Service Commission stated an inaccurate premise as a basis for the change. In pertinent part, it stated that the Common Pleas Court decision in Lachowski created “uncertainty regarding the disqualification of a CDL holder who refuses to submit to a test while driving a non-commercial vehicle.” It went on to state that “the bill clarifies that refusal to submit to a test (when arrested for OVI) leads to disqualification when a CDL holder is driving any type of motor vehicle, not just a commercial motor vehicle.” That statement is wholly inaccurate. As noted above, CDL holders who are operating non-commercial vehicles and arrested for OVI under R.C. 4511.19 are subject to a refusal ALS under R.C. 4511.191 and a disqualification arising out of the refusal ALS under 4506.16(D)(1).
Faulty premise aside, the relevant statutes, read pari materia, clearly show that amended R.C. 4506.17 cannot be a lawful basis for disqualifying a CDL holder from operating a commercial motor vehicle, if he is driving a non-commercial vehicle at the time he is arrested for OVI and charged with a violation of R.C. 4511.19.
First, a reading of the entire statute, as amended, still shows that it applies only to persons who are stopped or detained in commercial motor vehicles. Specifically, R.C. 4506.17(B) provides that the chemical test referred to in R.C. 4506.17(A) may only be administered by a peace officer who has reasonable ground to believe that the person was driving a vehicle “while having a measurable or detectable amount of alcohol . . . in the person’s . . . breath . . . . Any such test shall be given within two hours of the time of the alleged violation.” However, it is not unlawful for a person who has a CDL to operate a non-commercial vehicle with “a measurable or detectable amount of alcohol” in his breath. The only provision of law that makes having a measurable or detectable amount of alcohol in a person’s breath unlawful is R.C. 4506.15(A)(1) and that statute applies only to persons operating commercial motor vehicles.
Further, law enforcement officers have three hours within the time of the alleged violation to administer a chemical test to persons charged with OVI under R.C. 4511.19, irrespective of the type of license held or the type of vehicle driven. The two hour limitation set forth in R.C. 4506.17 for administering such a test is a limit applicable only to commercial vehicle drivers.
Finally, when a CDL holder in a non-commercial vehicle is arrested for OVI under R.C. 4511.19, the implied consent provision in R.C. 4511.191 applies to that arrest. Thereunder, predicates to implied consent include an actual arrest and reasonable grounds to believe that the person is under the influence of alcohol and/or a drug of abuse. Allowing a different standard (reasonable belief of measurable amount as opposed to being under the influence) as set forth in R.C. 4506.17 would create an irreconcilable conflict with the provisions of R.C. 4511.19 and R.C. 4511.191.
The only way the BMV can lawfully disqualify a CDL holder from operating a commercial motor vehicle for refusing a chemical test under R.C. 4506.17 is if the holder is lawfully stopped and detained while driving a commercial motor vehicle and reasonably believed to have a measurable or detectable amount of alcohol in his system. CDL holders operating non-commercial vehicles can be disqualified if arrested for OVI provided they refuse a chemical test under R.C. 4511.191 and the ALS is not vacated on appeal.
 4511.01 (A) “Vehicle” means every device . . . in, upon, or by which any person or property may be transported or drawn upon a highway . . .