Based on a recent change in MVD procedure, a DUI Admin Per Se (.08%) or Implied Consent (Refusal to Submit to Testing) Suspension now triggers a CDL disqualification even if there is no court conviction or even a DUI case filed. As of the date of this post (February 13, 2025) the Arizona MVD is imposing CDL disqualifications in a way that is not authorized by law.
A proceeding to suspend a person’s driver’s license for an Admin Per Se or Implied Consent violation begins when either a police officer personally serves a copy of the proposed order of suspension (which must also be filed with the MVD) or the MVD mails the driver a proposed order of suspension.
Pursuant to Arizona statute, a CDL disqualification must be imposed 10 days after the MVD receives notice that the CDL driver has been convicted of a DUI or has been found responsible for an Admin Per Se or Implied Consent suspension against their license. This means that by law (28 A.R.S. § 3312.I) a disqualification for an Admin Per Se or Implied Consent suspension may only be imposed after there has been a conviction or finding ( in this context “conviction” and ‘finding” mean the same thing) that the driver was in violation of the Admin Per Se or Implied Consent laws. A conviction or finding occurs 1. when the driver is served with an order of suspension and does not request a hearing within 30 days, or, 2. if the driver does timely request a hearing, but at an administrative hearing a judge rules the driver violated either of these laws. Thus, unless the driver does not timely request a hearing or if they do and a judge rules the driver violated one of these laws, there is no legal basis to impose the CDL disqualification. The one exception is when the Federal Government sends a notice of Arizona that a particular driver is a danger, which is very rare.
The Arizona MVD is currently ignoring the plain language of 28 A.R.S. § 3312.I, and is imposing disqualifications when there has been no conviction or finding the driver has violated one of these laws. Rather the MVD is imposing disqualifications 10 days after the date of the incident where an officer has issued a suspension order and filed the order with the MVD. By using this procedure, the MVD is denying CDL drivers their right to contest these suspension orders and immediately effecting a year-long disqualification of their CDL without a conviction or finding of responsibility.
The Arizona Court of Appeals has made it clear the Legislature and not the MVD determines the status of licenses, and MVD cannot come up with a procedure which is contrary to a law passed by the legislature. State v. Cabrera, 202 Ariz. 296, ¶ 13. Therefore, the Legislature has passed a law mandating the procedure for issuing CDL disqualifications, and yet the MVD substitutes its procedures for the Legislature’s, which procedure is not legal.
This is an important issue, and if the MVD continues to ignore the plain language of 28 A.R.S. § 3312.I the courts will ultimately have to decide this issue. In the meanwhile, any CDL driver who receives an Admin Per Se or Implied Consent suspension order should immediately contact a lawyer to try to preserve their CDL.
This post will be updated when any changes occur.
2/20/25 Update:
It now looks like the Arizona Department of Transportation is not staying CDL disqualifications in these cases and so the CDL disqualification goes into effect within days of when an officer files an Admin Per Se or Implied Consent Affidavit. The new procedure is contrary to the plain wording of 28 A.R.S. § 3312.I. The stated reason is the Liaison from the Federal Department of Transportation has told the Arizona Department that the Arizona Department can no longer grant stays. The legal basis for the Liaison’s statement is not clear but the bottom line is a CDL holder will be disqualified automatically when an Admin Per Se or Implied Consent Affidavit is filed with the MVD.
This post will be updated when there are any changes.
Gordon Thompson
For more information about Arizona DUI and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions.
Website: https://www.GordonThompsonAttorney.net
Blog: https://www.GordonThompsonAttorney.net/blog/
