Georgia chemical testing and commercial driver disqualification

Implied consent to chemical testing under O.C.G.A. 40-5-153

Section 40-5-153(a) deems a truck driver or other person who drives a commercial motor vehicle anywhere in Georgia to have given consent to chemical testing, and that consent is "subject to the provisions of Code Sections 40-5-55 and 40-6-392". The testing reaches the person's "blood, breath, or urine" and its stated purpose is determining the person's alcohol concentration or the presence of other drugs. Under Section 40-5-153(b), a test or tests may be administered at the direction of a law enforcement officer who, after stopping or detaining the commercial motor vehicle driver, has probable cause to believe that the driver was driving a commercial motor vehicle while having any measurable alcohol in his or her system. For a truck driver, subsection (b) thus pairs a stop or detention by the officer with probable cause concerning measurable alcohol while driving a commercial motor vehicle.^[1]

Section 40-5-153(c) requires the law enforcement officer who requests the test to warn the person, including a truck driver, that a refusal "will result in that person's being disqualified from operating a commercial motor vehicle for one year under Code Section 40-5-151" and from operating a private motor vehicle as provided in Code Section 40-5-67.1. The warning therefore puts both the commercial consequence and the private vehicle consequence before a truck driver at the time of the request.^[1]

The official code hierarchy places Section 40-5-153 in Article 7 of Chapter 5 together with Sections 40-5-142 and 40-5-151, and Section 40-5-142 states its definitions as used in this article. Section 40-5-142(7) defines commercial motor vehicle as "a motor vehicle designed or used to transport passengers or property" if it has a gross vehicle weight rating of 26,001 or more pounds or such lesser rating as federal regulation determines, if it is designed to transport 16 or more passengers including the driver, or if it is transporting hazardous materials designated under 49 U.S.C. Section 5103 and required to be placarded, or a material listed as a select agent or toxin in Title 42 C.F.R. Part 73. The definition states that, for purposes of that article, "no agricultural vehicle, commercial vehicle operated by military personnel for military purposes, recreational vehicle, or fire-fighting or emergency equipment vehicle shall be considered a commercial motor vehicle." A truck driver operating a vehicle with a gross vehicle weight rating of 26,001 or more pounds meets the weight test, subject to those exclusions.^[3][1][4]

Under Section 40-5-142(7), an agricultural vehicle is a farm vehicle controlled and operated by a farmer, including operation by employees or family members, that is used to transport "agricultural products, farm machinery, or farm supplies" to or from a farm, is operated within 150 miles of the farmer's farm and is not used in the operations of a common or contract carrier. Section 40-5-142(18) defines hazardous materials, as used in Article 7, by designation under 49 U.S.C. Section 5103 together with placarding under Title 49 C.F.R. Part 172, subpart F, or by listing as a select agent or toxin in Title 42 C.F.R. Part 73. O.C.G.A. 40-1-1(18.1) defines hazardous material as "a substance or material as designated pursuant to the Federal Hazardous Materials Law, 49 U.S.C. Section 5103(a)." O.C.G.A. 40-1-1(8.1) states another commercial motor vehicle definition, with a threshold of 4,536 kg (10,001 lbs.) or more measured by gross vehicle weight rating, gross combination weight rating, gross vehicle weight or gross combination weight, among other tests.^[3][2]

Under Section 40-5-142(2), alcohol concentration is measured as grams of alcohol per 100 milliliters of blood or per 210 liters of breath, and subparagraph (C) adds grams of alcohol per 67 milliliters of urine. The general Title 40 definition in O.C.G.A. 40-1-1(1) measures alcohol concentration as grams of alcohol per 100 milliliters of blood or per 210 liters of breath. Section 40-5-142(12) treats as a driver a person, a truck driver among them, who "drives, operates, or is in actual physical control of a commercial motor vehicle" in a place open to the general public for purposes of vehicular traffic, or who is required to hold a commercial driver's license. Section 40-5-142(11) defines drive as to "operate or be in actual physical control of a motor vehicle" in a place open to the general public for purposes of vehicular traffic, and for purposes of Code Sections 40-5-151 and 40-5-152 the term includes operation or actual physical control of a motor vehicle in this state as well as in other states or foreign jurisdictions.^[3][2]

Alcohol and drug limits in O.C.G.A. 40-6-391

Section 40-6-391(i) provides that a person shall not drive or be in actual physical control of a moving commercial motor vehicle while there is "0.04 percent or more by weight of alcohol in such person's blood, breath, or urine." A person convicted of violating subsection (i), a truck driver included, is guilty of a misdemeanor and, in addition to disqualification resulting under Article 7 of Chapter 5 of Title 40, the "Uniform Commercial Driver's License Act," is fined as provided in subsection (c) of Code Section 40-6-391. Subsection (i) states its 0.04 percent limit for a truck driver or other person driving a moving commercial motor vehicle, while Section 40-6-391(a) states its prohibitions for a moving vehicle.^[5]

Section 40-6-391(a) bars a person, including a truck driver, from driving or being in actual physical control of a moving vehicle while under the influence of alcohol, or of a drug, "to the extent that it is less safe for the person to drive". Paragraph (3) of that subsection reaches the intentional influence of "glue, aerosol, or other toxic vapor" to the same extent, and paragraph (4) reaches the combined influence of two or more of those substances to that extent. Under paragraph (5), the prohibition extends to a truck driver or other person whose alcohol concentration is 0.08 grams or more at a time within three hours after the driving or actual physical control, from alcohol consumed before that driving or control ended. For a truck driver, these prohibitions in Section 40-6-391(a) stand alongside the 0.04 percent limit for a moving commercial motor vehicle in subsection (i).^[5]

Section 40-6-391(a)(6), which is subject to Section 40-6-391(b), prohibits a truck driver or other person from driving a moving vehicle, or being in actual physical control of one, while marijuana or a controlled substance, as defined in Code Section 16-13-21, is present in the person's blood or urine, or both, including the metabolites and derivatives of each, without regard to whether alcohol is present in the person's breath or blood. Section 40-5-142(8), in the commercial drivers' licenses article, defines controlled substance by reference to Code Section 16-13-21 and to the substances listed in Schedules I through V of 21 C.F.R. Part 1308. Under Section 40-6-391(b), the fact that a person charged "is or has been legally entitled to use a drug shall not constitute a defense". The proviso in subsection (b) states that such a person, a truck driver included, is not in violation of Section 40-6-391 unless rendered incapable of driving safely as a result of using a drug other than alcohol that the person is legally entitled to use.^[5][3]

Refusal affidavit and one-year disqualification

When a truck driver or other person refuses testing, Section 40-5-153(d) requires the law enforcement officer to submit an affidavit to the department within ten days of the refusal, certifying that the test was requested under subsection (a) of Section 40-5-153 and that the person refused to submit to testing. Under Section 40-5-153(e), upon receipt of that affidavit the department "must disqualify the driver from driving a commercial motor vehicle for a period of one year as provided under Code Section 40-5-151" and, if the driver refused testing, from operating a private motor vehicle as provided under Code Section 40-5-67.1. If the driver, such as a truck driver, is in possession of a driver's license, the officer takes possession of the license and attaches it to the affidavit. For a truck driver, subsection (e) ties the one-year commercial disqualification to the department's receipt of the officer's affidavit.^[1]

Section 40-5-153 sits in Article 7 of Chapter 5 of Title 40, and Section 40-5-142(13) defines driver's license, as used in that article, as "a license issued by a state" to an individual that authorizes the individual to drive a motor vehicle. O.C.G.A. 40-1-1(15) separately defines a driver's license as a license to operate a motor vehicle "issued in either a physical or electronic format under the laws of this state."^[1][3][2]

Under Section 40-5-142(10), disqualification includes the "suspension, revocation, or cancellation of a commercial driver's license" by a state or jurisdiction of issuance. It also includes the withdrawal of a person's privilege to drive a commercial motor vehicle by a state or other jurisdiction as the result of a violation of state or local law relating to motor vehicle traffic control. Parking violations do not count toward that ground, and neither do vehicle weight or vehicle defect violations. The definition further includes "A determination by the Federal Motor Carrier Safety Administration that a person is not qualified to operate a commercial motor vehicle."^[3]

Section 40-5-142(13.1) includes within "Driving a vehicle under the influence" the "Refusal to submit to state administered chemical testing when requested to do so by a law enforcement officer" when it occurs while a truck driver or other person is driving or in actual physical control of a moving commercial or noncommercial vehicle. For a truck driver, the refusal consequences under Section 40-5-153 run through Code Section 40-5-151 for commercial driving and Code Section 40-5-67.1 for private vehicle operation. Under Section 40-5-151(l)(2), a disqualification of a truck driver or other person provided for in Section 40-5-151, other than those in subsection (f), becomes effective on the date the department processes the citation or conviction and may run concurrently to other disqualifications in effect.^[3][1][4]

Disqualification periods under O.C.G.A. 40-5-151 for major traffic violations listed in O.C.G.A. 40-5-142(18.2)

Under Section 40-5-142(18.2), "major traffic violation" refers to a conviction of listed offenses, or of equivalent laws or ordinances in Georgia as well as in other states and foreign jurisdictions, when operating a commercial motor vehicle or, "unless otherwise specified, a noncommercial motor vehicle". Subparagraph (A) lists driving a vehicle under the influence in violation of Code Section 40-6-391. Subparagraph (K) lists refusing to submit to a state administered chemical test requested by a law enforcement officer under Code Section 40-5-55. For a truck driver, subparagraph (K) stands beside Section 40-5-153(e), under which an officer's refusal affidavit leads to the one-year disqualification under Code Section 40-5-151 and the private vehicle consequences under Code Section 40-5-67.1.^[3][1]

Under Section 40-5-142(9), a conviction includes an unvacated adjudication of guilt, a determination that a person violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail. The definition counts each of these even where the penalty is rebated or is suspended or probated. Section 40-5-151(a.1) disqualifies a person, including a truck driver, from driving a commercial motor vehicle for not less than one year upon conviction of a first major traffic violation. Under Section 40-5-151(b), the period is three years for a truck driver or other person convicted of a first violation of using a commercial motor vehicle in the commission of a felony or a major traffic violation, provided that the vehicle being operated or used in connection with the violation or felony is transporting a hazardous material required to be placarded under the Hazardous Materials Transportation Act, 49 C.F.R. 105. Section 40-5-151 sits in Article 7, and the Section 40-5-142(18) definition of hazardous materials for that article names material designated under 49 U.S.C. Section 5103 that "is required to be placarded in accordance with" Title 49 C.F.R. Part 172, subpart F, as well as material listed as a select agent or toxin in Title 42 C.F.R. Part 73.^[3][4]

Section 40-5-151(c) disqualifies a person, a truck driver included, from driving a commercial motor vehicle "for life" upon conviction of a second or subsequent major traffic violation, or a combination of such violations, arising from two or more separate incidents. Under Section 40-5-151(d), the department may issue regulations establishing guidelines, including conditions, under which that life disqualification "may be reduced to a period of not less than ten years." Subsection (d) bars the department from making other reductions in a term of disqualification and from issuing a limited or other permit or license allowing a truck driver or other person to operate a commercial motor vehicle during a disqualification that Section 40-5-151 mandates. Notwithstanding subsection (d), Section 40-5-151(e) disqualifies for life a truck driver or other person who knowingly uses a motor vehicle in the commission of a felony involving the manufacture, distribution, cultivation, sale, transfer of, trafficking in, or dispensing of a controlled substance or marijuana, or possession with intent to do those acts. Section 40-5-151(e) also disqualifies for life a truck driver or other person who knowingly uses a commercial motor vehicle in trafficking an individual for labor servitude or sexual servitude in violation of Code Section 16-5-46.^[4]

Section 40-5-151(m) provides that disqualifications of a truck driver or other person under that Code section are imposed based on offenses in state law or on offenses under equivalent laws or ordinances in Georgia as well as in other states and foreign jurisdictions. Section 40-5-142(16) treats as a foreign jurisdiction a jurisdiction other than "a state of the United States." Under subsection (m), a truck driver's conviction for an equivalent offense in another state is among the offenses on which disqualification under Section 40-5-151 is based.^[4][3]

Penalty and homicide provisions in O.C.G.A. 40-6-391(c), (d), (f), (g) and 40-6-393

Section 40-6-391(c), which grades convictions, including those of a truck driver, from misdemeanor up to felony and sets fines, imprisonment, community service and probation, is outside this entry. Section 40-6-391(d), on the power of municipal courts to impose the misdemeanor punishments of the Code section and the power of courts hearing such cases to probate sentences or to suspend or stay them, is outside this entry. Section 40-6-391(f), which excludes Code Section 17-10-3 on general misdemeanor punishment and the first offender probation provisions of Article 3 of Chapter 8 of Title 42 for persons convicted under the Code section, is outside this entry. Section 40-6-391(g), on installment payment of the fine for economic hardship and suspension of up to one-half of the fine conditioned on substance abuse treatment, is outside this entry.^[5]

O.C.G.A. 40-6-393, which defines homicide by vehicle in the first and second degree and sets imprisonment ranges for those offenses, is outside this entry. Section 40-5-142(18.2)(E) lists homicide by vehicle in violation of Code Section 40-6-393 among the offenses that make up a "major traffic violation," including for a truck driver operating a commercial motor vehicle.^[6][3]

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)