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Commercial Driver License Masking

Commercial Driver License Masking. Oklahoma Department of Public Safety. OBJECTIVES. Should be able to define: Conviction for a CDL holder Masking Types of Violations Disqualifications Offenses & Lengths. Federal Motor Carrier Safety Administration.

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Commercial Driver License Masking

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  1. Commercial Driver License Masking Oklahoma Department of Public Safety

  2. OBJECTIVES • Should be able to define: • Conviction for a CDL holder • Masking • Types of Violations • Disqualifications Offenses & Lengths

  3. Federal Motor CarrierSafety Administration • An administration established within the Department of Transportation pursuant to the Motor Carrier Safety Improvement Act of 1999 (49 U.S.C. 113) • Primary missions is to prevent commercial motor vehicle-related fatalities and injuries • Reviews the State’s CDL program to determine whether or not the State meets the general requirements for substantial compliance

  4. The Federal Government GivethThe Federal Government Taketh Away

  5. State Substantial Compliance • States must comply with the provision of section 12009(a) of the Commercial Motor Vehicle Safety Act of 1986; 49 C.F.R. §384.101 • There are minimum standards that the State must substantially comply with; (49 C.F.R. §§384.201 – 384.234) • Not masking is one; 49 C.F.R. §384.226

  6. Consequences of State Noncompliance • Withholding of funds based on noncompliance (49 C.F.R. §384.401) • Following the first year of noncompliance, up to 5 percent of the Federal-aid highway funds • Following second and subsequent year(s) of noncompliance, up to 10 percent of the Federal-aid highway funds

  7. Consequences of State Noncompliance • Decertification of State CDL Program (49 C.F.R. §384.405) • Prohibition on CLP or CDL transactions. The Administrator may prohibit a State found to be in substantial noncompliance from performing any of the following CLP or CDL transactions: (1) Initial issuance (2) Renewal (3) Transfer (4) Upgrade • Conditions considered in making decertification determination. • If the State does not disqualify drivers convicted of disqualifying offenses in commercial motor vehicles (49 C.F.R. §384.405(b)(2))

  8. Submitting Records to DPS

  9. The State must post on CDLIS all Convictions49 C.F.R. §384.225 • The State must: (a) CLP or CDL holder. Post and maintain as part of the CDLIS driver record: (1) All convictions, disqualifications and other licensing actions for violations of any State or local law relating to motor vehicle traffic control (other than parking, vehicle weight, or vehicle defect violations) committed in any type of vehicle. • (c) Make CDLIS driver record information required by this section available . . . within 10 days of: (2) The date of the conviction, if it occurred in the same State.

  10. CDLIS • CDLIS motor vehicle record (CDLIS MVR) means a report generated from the CDLIS driver record meeting the requirements for access to CDLIS information and provided by States to users authorized in § 384.225(e)(3) and (4), subject to the provisions of the Driver Privacy Protection Act, 18 U.S.C. 2721-2725. • Commercial Driver License Information System (CDLIS)

  11. Required Submissions to DPS47 O.S. §18-101 • Courts shall prepare and immediately, within 5 days, forward to the DPS an abstract of the record: • conviction of any person holding a Class D driver license • Convictions under Subsection A of 47 O.S. §6-205.2 of any holder of a class A,B, or C drivers license. (Any record of conviction must be reported not just disqualifying convictions) • forfeiture of bail of a person

  12. Noncompliance47 O.S. §18-101(F) • The failure, refusal or neglect of any judicial officer to comply with any of the requirements of this section shall constitute misconduct in office and shall be ground for removal.

  13. Conviction for a CDL Holder

  14. What is a “Conviction” for a CDL Holder?47 O.S. §6-205.2(A) • A Nonvacated adjudication of guilt • Determination by Court or DPS that person has violated or failed to comply with Section 6-205.2 • Nonvacted forfeiture of bail or collateral deposited to secure persons appearance in court

  15. What is a “Conviction” for a CDL Holder? 47 O.S. §6-205.2(A) • Plea of Guilty or Nolo Contendere accepted by the Court • Payment of any fine or court costs • Violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended or probated

  16. What is a “Conviction” for a CDL Holder? Federal (The State mirrors the Federal) 49 C.F.R. §383.5 • 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.

  17. Masking

  18. Masking is prohibited49 C.F.R. §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.

  19. Masking is prohibited • Requires a conviction, if no conviction no masking • Any attempt to “modify” a conviction or keep it off the driving record is masking • Passed by the legislature as a safety measure intended to keep the most dangerous offenders off the road

  20. Masking is prohibited • Intended to ensure licensing authorities and courts have an accurate picture of a CDL holder’s driving history • No equal protection violation • Lockett v. Commonwealth of Virginia, 438 S.E. 2d 497 ( Va. App. Ct. 1993) and • Peretto v. Dep’t of Motor Vehicles, 235 Cal. App 3d 449 (App. Ct. 1991)

  21. Masking Examples • Reducing a violation for the sole reason of avoiding impact to driving record • Failing to submit and or place conviction on the driving record • Court convicts but allows traffic school in lieu of reported conviction • Court accepts ‘no contest plea’ removes case from docket for 6 months & then dismisses case for clean driving history

  22. Masking Examples • Court collects fines then dismisses the case but does not report as a conviction • After adjudication of guilt, perform alternative services to erase conviction • Vacating a Judgment and Sentence and changing the charge to avoid the violation appearing on the record

  23. Examples that are not Masking • Prosecutor chooses to dismiss case because of a weak case • Allowing a withdraw of guilty plea (Not to avoid violation appearing on record) • Trial held, driver prevails and case dismissed • Violation can be reduced by the prosecutor before a judgment of guilt is pronounced

  24. Prosecutorial discretion • Masking does not prevent plea bargaining or dismissal of charges if the case is factually or practically weak – however prosecutors should carefully consider the purpose of entering into a plea agreement or allowing any type of diversion • National District Attorneys Association: Commercial Driver’s Licenses: A Prosecutor’s Guide to the Basics of Commercial Motor Vehicle Licensing and Violations, 2011, Page 29.

  25. Prosecutorial discretion • “The bottom line for prosecutors is that allowing convicted traffic offenders to ‘modify’ a conviction or keep it off their record in an attempt to circumvent driver license action is masking. While there may be very good reasons to amend or plea bargain to a lesser charge, all prosecutors are subject to an ethical obligation to follow the law and avoid any perception of a failure to do so. Moreover, it is impossible to predict with 100% accuracy which offender may go on to commit a more serious offense or guess which traffic violations will receive scrutiny from higher authorities or media interest.” National District Attorneys Association: Commercial Driver’s Licenses: A Prosecutor’s Guide to the Basics of Commercial Motor Vehicle Licensing and Violations, 2011, Page 29.

  26. CDL QUICK REFERNCE GUIDE http://www.ndaa.org/ntlc_commercial_vehicles.html

  27. Types of Disqualifying Violations

  28. Types of Disqualifying Violations47 O.S. §6-205.2 starting at (B)49 C.F.R. §383.51 • Major Violations • Serious Violations

  29. Major Violations • Disqualification Period • 1st Offense – One Year • HAZMAT – Three Years • 2nd Offense - Lifetime

  30. Major Violations • DUI / APC involving a CMV with a BAC of .04 or more. • Refusing to submit to the State’s test while operating a CMV or any vehicle if a CDL holder. • DUI / APC involving a CMV or any vehicle if a CDL holder.

  31. Major Violations • Leaving the scene of a collision while operating a CMV or any vehicle if a CDL holder. • Felony in which a CMV is used or any vehicle if a CDL holder. • Operating CMV while CDL is revoked, suspended, canceled, denied or disqualified

  32. Major Violations • Manslaughter homicide, or negligent homicide occurring as a direct result of negligent operation of a CMV or any vehicle if a CDL holder. • Fraud related to examination for or issuance of a commercial learner permit or a Class A, B or C driver license • Failure to submit to skills or knowledge reexamination, or both, for a commercial learner permit or a Class A, B or C driver license

  33. Major Violations • Felony related to manufacture, distribution or dispensation of CDS while using a CMV or any vehicle if a CDL holder. (Lifetime Disqualification on 1st violation)

  34. Serious Violations • Disqualification Period • 1st Offense – Freebie • 2nd Offense within 3 years – 60 Days • 3rd Offense within 3 years – 120 Days (cannot run concurrently)

  35. Serious Violations • Speeding 15 mph or over • Reckless Driving • Traffic offense resulting in collision, resulting in fatality • Erratic or unsafe lane change

  36. Serious Violations • Following too close • Failure to obtain a CDL • Failure to have CDL in possession

  37. Serious Violations • Failure to have: • Proper class CDL for CMV • Proper endorsement for CMV • Both proper class & endorsement

  38. Serious Violations • Using a cellular telephone or electronic communications device to write, send or read a text-based communication while driving a CMV • Using a hand-held mobile telephone while driving a CMV (effective 11/01/2015)

  39. Questions?

  40. Department Contacts Virgil BonhamDirector of Records Managementvbonham@dps.state.ok.us(405) 425-2047 Gina TerrellAdministrative Programs Officer IIIgterrell@dps.state.ok.us(405) 425-2198

  41. Department Contacts Tammie ShepherdDeputy DirectorCommercial Driver License Section/CDL Coordinatortshepher@dps.state.ok.us(405) 425-2220 Whitney Herzog ScimecaAssistant General Counselwherzog@dps.state.ok.us(405) 521-6075

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