29- 250 C.M.R. ch. 6, § 3

Current through 2024-50, December 11, 2024

Section 250-6-3 - Suspension on administrative determination for operating a commercial motor vehicle while having 0.04% or more by weight of alcohol in the blood

A. Suspension. Except where a longer period of suspension is otherwise provided by law, the Secretary of State shall suspend the commercial driver's license or permit to operate, privilege to operate a commercial motor vehicle and privilege to apply for or obtain a commercial driver's license of any person:

1 As to whom there is received a record of conviction or adjudication for operating a commercial motor vehicle while having 0.04% or more by weight of Alcohol in the blood, while under the influence of intoxicating liquor or drugs, or with an excessive blood-alcohol level; or

2 As to whom the Secretary of State determines has operated a commercial motor vehicle while having 0.04% or more by weight of alcohol in the blood.

B. Determination of Suspension. The Secretary of State shall make the determination of suspension required by section 3(A)(2) as follows.

1 The Secretary of State shall make a determination on the basis of the information required in Section 3(C), and this determination is final unless a hearing is requested and held. If a hearing is held, the Secretary of State shall review the matter and make a final determination on the basis of the evidence received at the hearing.

2 The determination of these facts by the Secretary of State is independent of the determination of the same or similar facts in the adjudication of any civil or criminal charges arising out of the same occurrence. The disposition of those civil or criminal charges does not affect any suspension issued pursuant to these rules.

C. Report by Law Enforcement Officer. A law enforcement officer shall forward a report to the Secretary of State as follows.

1 A law enforcement officer who has probable cause to believe that any person operated a commercial motor vehicle while having 0.04% or more by weight of alcohol in the blood shall forward to the Secretary of State a report under oath of all information relevant to the incident including a statement of the officer's grounds for belief that the person was operating a commercial motor vehicle while having 0.04% or more by weight of alcohol in the blood and a certificate under 29-A MRSA Section2431 of the results of any blood-alcohol tests by a self-contained breath-alcohol testing apparatus which were conducted.

2 The report required in Section 3(C)(1) shall be made on forms supplied by or approved by the Secretary of State.

3 If the blood-alcohol test was not analyzed by a law enforcement officer, the person who analyzed the results shall cause a copy of the certificate under 29-A MRSA Section2431 to be sent to the Secretary of State.

D. Period of Suspension. The period of suspension for a person determined to have operated a commercial motor vehicle while having 0.04% or more by weight of alcohol in the blood, while under the influence of intoxicating liquor or drugs, or with an excessive blood alcohol level is as follows.

1 A one year suspension in the case of a person having no previous convictions for operating a commercial motor vehicle while under the influence of intoxicating liquor or drugs or with an excessive blood-alcohol level and no previous suspensions for failure to comply with the duty to submit to and complete chemical testing involving the operation of a commercial motor vehicle or for operating a commercial motor vehicle while having 0.04% or more by weight of alcohol in the blood. If the person was operating a commercial motor vehicle containing hazardous materials, the suspension must be for a period of three years.

2 A permanent suspension in the case of a person having a previous conviction for operating a commercial motor vehicle while under the influence of intoxicating liquor or drugs or with an excessive blood-alcohol level or a previous suspension for failure to comply with the duty to submit to and complete chemical testing involving the operation of a commercial motor vehicle or for operating a commercial motor vehicle while having 0.04% or more by weight of alcohol in the blood.

3 For the purposes of these rules, a conviction, adjudication or suspension includes a conviction, adjudication or suspension obtained or issued pursuant to the laws, rules, or regulations of this state, any other state or province, and the federal government of the United States.

E. Implied Consent. A person who operates a commercial motor vehicle shall submit to a test to determine the blood-alcohol level or drug concentration by analysis of the blood or breath, if there is probable cause to believe the person has operated a commercial motor vehicle while having 0.04% or more by weight of alcohol in the blood or while under the influence of drugs. The provisions of 29-A MRSA section2523 apply.

F. Notice of Suspension. The notice of suspension by the Secretary of State shall be made as follows:

1 Upon receipt of the information required in Section 3(C) of these rules, the Secretary of State shall make the determination described in Section 3(A)(2). If the Secretary of State determines that the person is subject to license suspension, the Secretary of State shall immediately issue a notice of suspension.

2 The notice of suspension must be sent in accordance with 29-A MRSA Section2482 or to the address provided in the report of the law enforcement officer if that address differs from the address of record. The notice is deemed received 3 days after mailing, unless returned by postal authorities.

3 The notice of suspension must clearly specify the reason and statutory grounds for the suspension, the effective date of the suspension, the right of the person to request a hearing, the procedure for requesting a hearing and the date by which the request for a hearing must be made. The notice of suspension must also clearly state that a copy of the report of the law enforcement officer and the blood-alcohol test certificate will be provided to the person upon request to the Secretary of State.

G. Effective date and period of suspension. The effective date and period of suspension are determined as follows.

1 Any suspension imposed must be effective on a specified date not less than 10 days after the mailing of the notification of suspension by the Secretary of State. A suspension served in hand may become effective when served. If a person whose license is suspended desires to have a hearing, the person shall notify the Secretary of State, in writing, within 10 days from the effective date of suspension. If within ten days from the effective date of the suspension, the Secretary of State receives a written request for a hearing for a suspension issued pursuant to section 3(A)(2), the suspension must be stayed until a hearing is held and a decision is issued. Notwithstanding this subsection, there may be no stay of suspension during the period of any delay in hearing which is caused or requested by the petitioner.

2 When a person's commercial driver's license is suspended pursuant to these rules and is also suspended after having been adjudicated or convicted on charges arising out of the same occurrence for a violation of 29-A MRSA Section 2411 or 15 MRSA section 3103(l)(F), the period of time that person's commercial driver's license has been suspended under this section prior to the adjudication or conviction must be deducted from the period of time of any suspension of the commercial driver's license ordered by the court or imposed by the Secretary of State.

H. Request for hearing. A person who has received notice of suspension issued pursuant to Section 3(A)(2) may request a hearing as follows.

1 A person who has received a notice of suspension may make a written request for a review of the determination of the Secretary of State at a hearing.

2 The request for a hearing must be made within 10 days from the effective date of the suspension. If a written request for a hearing is made after the 10-day period and the Secretary of State finds that the person was unable to make a timely request due to lack of actual notice of the suspension or due to factors of physical incapacity, the Secretary of State shall waive the period of limitation, reopen the matter and grant the hearing request, except, in such a case, a stay of suspension pending the hearing shall not be granted.

I. Hearing. The hearing and notice shall be as follows.

1 The hearing and notice shall be as provided in 29-A MRSA Sections2483, 2484, and 2485.

2 The scope of the hearing shall include whether, by a preponderance of the evidence:

a There was probable cause to believe that the person was operating a commercial motor vehicle while having 0.04% or more by weight of alcohol in the blood;

b The person operated a commercial motor vehicle; and

c At the time the person had 0.04% or more by weight of alcohol in the blood.

3 A certificate duly signed and sworn to pursuant to 29-A MRSA Section2431 shall be admissible in evidence as prima facie proof of facts stated therein and that the person taking a specimen of blood, breath or urine was authorized by 29-A MRSA Section2431, that the equipment, chemicals and other materials used in the taking of the blood or urine specimen or breath sample were of a quality appropriate for the purpose of producing reliable test results, that any equipment, chemicals or materials required by 29-A MRSA Section2431, to be approved by the Department of Health and Human Services were in fact approved, that the sample tested by the person certified under 29-A MRSA Section2431, was in fact the same sample taken and that the percentage by weight of alcohol in the blood was, at the time the blood, breath or urine sample was taken, as stated in the certificate.

4 If it is determined after hearing that there was not the requisite probable cause for blood-alcohol test administration or that the person did not operate a commercial motor vehicle while having 0.04% or more by weight of alcohol in the blood, the suspension shall be removed immediately and the Secretary of State shall delete any record of the suspension.

5 Any person whose license is suspended under this section on the basis of blood-alcohol test may, within 30 days after receipt of the decision, appeal to the Superior Court for judicial review, as provided in Title 5, sections 11001 to 11008. The suspension imposed shall remain in effect during the time an appeal is pending unless the court orders otherwise. If the court rescinds the suspension, the Secretary of State shall delete any record of the suspension.

J. Restoration of commercial driver's license. Following the expiration of the aggregate periods of suspension imposed pursuant to these rules, otherwise imposed by the Secretary of State, or ordered by any court, the Secretary of State may issue a commercial driver's license to the person, subject to the conditions, restrictions or terms the Secretary of State deems advisable, if the Secretary of State has received written notice that the person has satisfactorily completed the alcohol and other drug education, evaluation and treatment program administered by the Department of Health and Human Services.

29- 250 C.M.R. ch. 6, § 3