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DUI, Reckless Driving for the Commercial Driver

Date: 06-21-2014

If you have been arrested for DUI, or Reckless driving, or any other traffic violation and you have a commercial driver's license you already know that the consequences for you are different from that of the non-commercial driver.   Pursuant to the relatively new federal regulation 49 CFR 384.226   "The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CLP or CDL holder’s conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (other than parking, vehicle weight, or vehicle defect violations) from appearing on the CDLIS driver record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State." Chapter 394 of the Code of Federal Regulations can be found by clicking on the link.   This regulation is creating confusion in the courts of the State of Florida.   There are several Florida Statutes that inform when a court or judge in the State of Florida may withhold adjudication of guilt, which is likely the equivalent of masking as described above: F.S. 948.01Florida Rule of Criminal Procedure 3.670 and F.S. 921.187 to name a few. There are specific statutes that prohibit the court from withholding adjudication including for DUI under F.S. 316.656 and Fla. R. Crim. P. 6.290. However, there are no (as far as this author is aware) Florida Statutes prohibiting a judge from withholding adjudication on an offense differing from DUI such as Reckless driving.   In evaluating the authority of the courts, and the effects of the actions of the State of Florida DHSMV it is important to note that F.S. 322.01(11)(b) adopts 49 CFR 383.5's definition of conviction:   "Conviction means an unvacated adjudication of guilt, or a determination that a person has 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 deposited to secure the person’s appearance in court, 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, regardless of whether or not the penalty is rebated, suspended, or probated."   F.S. 322.01(11)(a) defines conviction as:  
"(11)(a) “Conviction” means a conviction of an offense relating to the operation of motor vehicles on highways which is a violation of this chapter or any other such law of this state or any other state, including an admission or determination of a noncriminal traffic infraction pursuant to s. 318.14, or a judicial disposition of an offense committed under any federal law substantially conforming to the aforesaid state statutory provisions."
According to the DHSMV and memorandum by Maureen Johnson, the DHSMV states it will not accept a withhold of adjudication on such charges as those mentioned above because it believes a withhold of adjudication is masking.
However, Florida Statute 316.302 spells out what section of Title 49 of the CFR have been adopted by the State of Florida through the Legislature and 384.226 is not included in those adopted.
Thus, because F.S. 316.302 does not adopt 49 CFR 384.226 and adoption of 49 CFR 383.5's definition of conviction is found under Chapter 322, not Chapter 316 where DUI and Reckless driving are found such violations are not subject to the anti-masking statute in the State of Florida.
Because the regulations at issue have not been adopted through legislation, the laws of the Florida Legislature are the laws that prevail. The Florida statute preempts (take precedent) over the Federal Regulations under the theory of Federalism. See Hughes v. State943 So.2d 176 (Fla. 3rd DCA 2006).
So you ask, what does this mean to you, the commercial driver charged with DUI? It means if the charge is reduced to reckless driving and you receive a withhold of adjudication it should not be placed on the CDLIS driver's record.
The above is based on the state of the law at this time. This is an area of law that is still being developed through the courts. If you have such an issue please contact an attorney experienced in this line of work.