Contrary to common belief and the routine practice of the BMV, the BMV may only disqualify a CDL holder from operating a commercial motor vehicle if convicted of a violation of R.C. 4506.15 and not R.C. 4511.19.
Prior Law Permitted the Disqualification of a CDL Holder if Convicted for a Violation of R.C. 4506.15 or of Section 4511.19
Prior to January 27, 2012, R.C. 4506.16 (D)(1) disqualified CDL holders from operating a commercial motor vehicle “upon a first conviction for a violation of any provision of divisions (A)(2) to (9) of section 4506.15 of the Revised Code, or of section 4511.19 . . . ” Thus, it was clear that prior to the above-referenced date, a CDL holder convicted of certain offenses under R.C. 4506.15 or convicted of OVI under R.C. 4511.19 was subject to disqualification. Sub. H.B. 337 became effective on January 27, 2012. As of that date, and pursuant to that bill, I assert that the amendments to R.C. 4506.16(D)(1) no longer permit disqualification of a CDL holder convicted of OVI under R.C. 4511.19. The clear and unambiguous language of R.C. 4506.16(D)(1) as amended limits disqualification for OVI convictions to CDL holders prosecuted and convicted under R.C. 4506.15 (A)(6).
Under the Current Version of R.C. 4506.16(D)(1), A CDL Holder Cannot be Disqualified from Operating a Commercial Motor Vehicle if Convicted for OVI under R.C. 4511.19 or a Substantially Equivalent Municipal Ordinance
A CDL holder operating a non-commercial vehicle or commercial vehicle is subject to disqualification under R.C. 4506.16(D)(1) “upon a first conviction for a violation of any provision of divisions (A)(2) through (12) of section 4506.15 . . .”. R.C. 4506.15(A)(6) prohibits driving “a motor vehicle in violation of section 4511.19 of the Revised Code or a municipal OVI ordinance as defined in section 4511.181 of the Revised Code.” The language in R.C. 4506.16 (D)(1) is clear and unambiguous in providing that a disqualification of a CDL holder’s right to drive a commercial motor vehicle is predicated upon a conviction for a violation of R.C. 4506.15 (A)(2) through (12) . It is equally clear that when a CDL holder is prosecuted and convicted for OVI under R.C. 4511.19 or an equivalent municipal ordinance, such a conviction is not for a violation of any provision under R.C. 4506.15.
Notwithstanding the foregoing, the BMV routinely disqualifies CDL holders from operating commercial motor vehicles for convictions of OVI under R.C. 4511.19 and/or equivalent municipal ordinances. I question its lawful basis for doing so under R.C. 4506.16(D)(1), as such an OVI conviction is not a conviction for a violation of any provision of R.C. 4506.15. I contend that the only way the BMV could lawfully disqualify a CDL holder under R.C. 4506.16 (D)(1) for an OVI conviction is if the holder is prosecuted and convicted for a violation of R.C. 4506.15(A)(2) through (12).
If the BMV attempts to rely on broader language contained in a relevant Ohio Administrative Code (O.A.C.) provision, I submit that such reliance is misplaced. That provision, O.A.C. 4501:1-1-24, is titled “Disqualification of Commercial Driver for Certain Convictions”. The provision states in relevant part “Whenever the registrar of motor vehicles receives information that a driver has received a conviction of an offense described in 4506.15 . . . the driver is thereby subject to disqualification . . .”. (Emphasis added). On its face, this code provision purports to permit disqualification of a CDL holder not only for convictions for a violation of an offense under R.C. 4506.15, but for offenses listed in R.C. 4506.15. Thus, the language in the administrative code provision permits disqualification under broader circumstances than permitted by the statute to which it relates.
Basic principles of administrative law make it clear that the administrative code provision is invalid and unenforceable against CDL holders convicted of OVI under R.C. 4511.19 or an equivalent municipal ordinance. Specifically, an administrative rule in conflict with a statute is invalid and unconstitutional because it surpasses administrative powers and constitutes a legislative function. Midwestern College of Massotherapy v. Ohio Med. Bd. (Ohio App. 10 Dist. 03-21-1995) 102 Ohio App.3d 17, 656 N.E.2d 963. Further, any conflict between a statute and administrative rule must be resolved in favor of the statute since administrative agencies are creatures of statute. Sandford v. D & T Limousine Serv., Inc. (Ohio App. 8th Dist., 01-04-1996) 108 Ohio App.3d 520, 671 N.E.2d 299, appeal not allowed 75 Ohio St.3d 1497, 664 N.E.2d 1294. Finally, an agency’s rule cannot add to or subtract from a statute, nor can it conflict with any statute. Central Ohio Joint Vocational School Dist. Bd. of Educ. v. Admr., Ohio Bureau of Employment Services, 21 Ohio St. 3d 5, 487 N.E.2d 288, 29. (Emphasis added).
In conclusion, law enforcement has the authority to prosecute CDL holders under R.C. 4506.15(A)(6) for operating any motor vehicle in violation of R.C. 4511.19 or an equivalent municipal ordinance. If a person is convicted for such a violation under R.C. 4506.15, his right to drive a commercial motor vehicle can be disqualified. However, if law enforcement opts to prosecute a CDL holder under R.C. 4511.19 or an equivalent municipal ordinance, a conviction for such a violation does not permit disqualification.