COA: CDL Holder Cannot Enter Diversion Program For Alcohol Offenses

COA: CDL Holder Cannot Enter Diversion Program For Alcohol Offenses

by Jennifer Nelson for www.theindianalawyer.com

A man who held a commercial driver’s license and pleaded guilty to two misdemeanor drunken-driving offenses cannot participate in a diversion program, the Indiana Court of Appeals ruled Tuesday. One judge on the panel had concerns that the law treats CDL holders and those without a CDL differently.

Nicholas Hargrave was arrested and charged with operating a motor vehicle while intoxicated and operating a motor vehicle while intoxicated in a manner that endangered a person after police found him slumped over in the driver’s seat of his pick-up truck. Hargrave pleaded guilty, and the trial court withheld judgment and ordered him to participate in a diversion program. Hargrave, who held a CDL, surrendered it after his operator’s license was suspended for 180 days. He later filed a petition to have his operator’s license reinstated without providing proof of SR22 insurance, which the Bureau of Motor Vehicles requires for those who have had their licenses suspended.

The BMV intervened, claiming Hargrave didn’t qualify to participate in the diversion program because he held a CDL and allowing him to do so would jeopardize receipt of some federal highway funds and decertification of the state’s CDL program. The BMV also argued Hargrave was required to show proof of SR22 insurance. The trial court ruled in favor of Hargrave.

The judges reversed in State of Indiana and Indiana Bureau of Motor Vehicles v. Nicholas Hargrave, 82A01-1504-CR-137, agreeing with the state’s position that based on federal regulations, which Indiana adopted in statute, a person who holds a CDL at the time he or she commits a traffic violation may not participate in a diversion program or have the judgment deferred on that conviction.

“To the extent that Hargrave argues that his increased responsibility and accountability ceased to exist when he surrendered his CDL, he is mistaken. We agree with the BMV that Hargrave’s position cannot be correct in light of the purpose and intent of the (Commercial Drivers License Information System), which is to provide a full and accurate accounting of an individual’s driving history while he held a CDL,” Chief Judge Nancy Vaidik wrote in the majority opinion. “We agree with the State that “[a]llowing Hargrave to surrender his license, avoid his conviction, and possibly return to driving professionally with no record of the offense is precisely what the anti-masking law is designed to prevent.”

Judge Margret Robb wrote separately to address the inconsistent treatment of those who currently hold CDLs and those who do not, but could do so in the future. One who does not have a CDL at the time of the offense can participate in a diversion program and later drive professionally without a record of the offense, she noted. In light of the purpose of the Motor Carrier Safety Improvement Act, which is to reduce the number and severity of accidents involving commercial motor vehicles, “I find it difficult to justify this inconsistency,” she wrote.

The judges also affirmed that Hargrave is required to file proof of financial responsibility for three years following the termination of his suspension under I.C. 9-30-6-12.