A Massachusetts resident and holder of a commercial driver’s license CDL is facing a DUI charge in New Hampshire. He had a prior OUI conviction in Massachusetts in 1982. He has questions about the implications of being convicted of DUI in New Hampshire and he is trying to decide whether her should fight his New Hampshire DUI charge or plead guilty. This is a complicated situation because it involves the CDL issue as well as the interplay between the two states. The New Hampshire DMV has already notified the Massachusetts Registry about his chemical test refusal suspension in NH and the Mass. RMV has suspended his license indefinitely due to the out of state breath test refusal.
Massachusetts uses a “lifetime look back” period to determine penalties for a subsequent DUI offense. This is true with respect to both a non-commercial operator and commercial driver’s license.
New Hampshire utilizes a “ten year look back” period to determine a second DUI offense for non-commercial operators. However, for commercial drivers the look-back period is governed by federal law 49 C.F.R. § 383.51, which was adopted by New Hampshire. According to the U.S. Department of Transportation, states were not required to give the restrictions set forth in 49 C.F.R. § 383.51 retroactive effect. To comply with the federal regulation, states are required to only count offenses which occurred on or after July 17, 1994. However, nothing prohibits states from considering offenses which occurred prior to July 17, 1994, for the purposes of CDL suspensions and disqualifications.
The Massachusetts RMV will suspend a 2nd offender’s regular passenger car driver’s license for two years. The Massachusetts RMV will require second and subsequent offenders to install an ignition interlock device for additional two year period, as a condition of reinstatement.
If a second offender is granted a hardship license during the two-year suspension period, he or she will also have to have ignition interlock device installed during this period. This means that the interlock device would be installed during the period of early hardship reinstatement, as well as during the additional two years after the full reinstatement. Also, Massachusetts will not consider a DUI offender for a hardship license until your his or her privilege to drive is cleared in the state where the offense occurred. In this case, the driver must be clear in the State of New Hampshire.
Federal law prohibits states from issuing CDL hardship licenses. In addition, the law does not permit an interlock device to be installed in a commercial vehicle.
Even if the driver gets a not guilty disposition in New Hampshire, he still faces a lifetime loss of his CDL for refusal to take the breath test combined with the 1982 OUI. This is because the refusal to take a breath test all by itself, even if not followed by a DUI conviction, counts the same as a DUI for CDL purposes. Unless he can get the chemical test refusal overturned, he faces a lifetime CDL disqualification, even if the NH DUI is resolved in his favor.
This case illustrates the complexities of what appears, on the surface, to be a simple drunk driving case. Because multiple states and CDL regulations are involved, it makes sense to received guidance from a lawyer who specializes in license suspensions and reinstatements.