Commercial Driver DUI Lawyer in San Jose, CA The 0.04 Threshold and Disqualification

The lower number, and where it comes from

Vehicle Code section 23152(d) makes it unlawful for a person who has 0.04 percent or more, by weight, of alcohol in the blood to drive a commercial motor vehicle as defined in section 15210, with the same rebuttable presumption where a chemical test within three hours after driving reaches that figure (Vehicle Code 23152). Section 23152(e) applies the same 0.04 figure to any driver, commercial license or not, when a passenger for hire is in the vehicle, and defines a passenger for hire as one for whom consideration is contributed or expected as a condition of carriage, whether directly or indirectly flowing to the owner, operator, agent or any other person having an interest in the vehicle. Section 23153(d) carries the 0.04 threshold into the injury statute. The DMV lists the same four limits in the driver handbook: 0.08 percent over 21, 0.01 percent under 21, 0.01 percent on DUI probation, 0.04 percent for a vehicle requiring a commercial license and 0.04 percent when driving a passenger for hire (California DMV).

Disqualification is a separate action from suspension

Section 15300 lists the convictions that disqualify a person from operating a commercial motor vehicle for a period of one year. The list includes a violation of section 23152(a), (b) or (c) while driving any motor vehicle, a violation of section 23152(d), a violation of section 23153(a), (b) or (d), leaving the scene of an accident, using a vehicle to commit a felony, driving a commercial vehicle while the privilege to do so is disqualified, causing a fatality through the negligent operation of a commercial vehicle under Penal Code section 191.5 or 192(c), refusing to submit to or complete a chemical test under section 23612, and a violation of section 2800.1, 2800.2 or 2800.3 in a commercial vehicle (Vehicle Code 15300). The statute sets three years rather than one where the violation occurred while transporting hazardous material required to be placarded. Section 15302 provides that a person is disqualified for life on more than one violation of the offenses that section 15300 lists (Vehicle Code 15302).

The clause that reaches a personal vehicle

The most commonly misread part of section 15300 is that several of the listed offenses are not limited to commercial driving. A section 23152(a), (b) or (c) conviction disqualifies where the person was driving a motor vehicle, which includes the family car on a day off. The commercial consequence therefore does not depend on whether the truck was involved, and it does not depend on the driver having been on duty. Section 15210 supplies the definitions that decide what counts as a commercial motor vehicle in the first place, including the vehicle classes, combination weights and passenger counts that trigger the requirement (Vehicle Code 15210).

Refusal is worse for a commercial holder

Section 13353 provides that a person who refuses an officer's request to submit to or fails to complete a chemical test faces a one-year suspension, a two-year revocation where a qualifying prior falls within ten years, or a three-year revocation with two or more (Vehicle Code 13353). For a commercial license the same section adds that where a person has been convicted of more than one refusal arising out of separate incidents, that person is disqualified from operating a commercial motor vehicle for the rest of their life.

Getting a restricted license means giving up the class

The DMV states the trade directly: a person who holds a commercial driver's license must downgrade to a Class C noncommercial license in order to get a restricted license. Where the holder was not operating a commercial vehicle at the time of the offense and pays the $125 reissue fee after a mandatory 30-day suspension, the department states that a restricted license to drive to, from and during the course of employment may be requested (California DMV). The interlock statute complicates that further, because section 23575.3 makes the restriction attach to the vehicle rather than the license, and section 23576 provides a narrow employer exemption: a person required to operate a motor vehicle in the course and scope of employment may operate an employer-owned vehicle without an installed device if the employer has been notified of the restriction and the person carries proof of that notification, or the notice is with the vehicle (Vehicle Code 23576).

Two clocks, and one of them is short

The administrative order and the criminal case run on separate tracks. The DMV states that a hearing must be requested within 10 days of receipt of the suspension or revocation order and that the roadside temporary license allows driving for 30 days from the date the order was issued (California DMV). Hearings for this area are handled by the Driver Safety Office at 90 Great Oaks Blvd., Suite 104, in San Jose, and may be held remotely by videoconference or in person (California DMV). A criminal charge from a San Jose stop is answered at the Hall of Justice at 190 West Hedding Street (Santa Clara County Superior Court). This page is general information about California law and is not legal advice. A commercial license holder facing a charge should speak with a licensed California attorney; the attorney who advertises on this site can be reached at the number posted here.