Commercial Driver License Masking

1. Commercial Driver License Masking Oklahoma Department of Public Safety

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

4. 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

5. The Federal Government GivethThe Federal Government Taketh Away

6. 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

7. 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

8. 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))

9. Submitting Records to DPS

10. 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.

11. 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)

12. 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

13. 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.

14. Types of CDLs

15. Types of CDLsin Oklahoma • Class A • Class B • Class C • Restrictions • Endorsements

16. Class A • Any combination of vehicles with GCWR ≥ 26,001 pounds w/ trailer ≥ 10,001 pounds • 47 O.S. §1-107.1

17. Class B • Single vehicle GVWR ≥ 26,001 or • Vehicle towing another vehicle GCWR ≥ 26,001 w/ trailer ≤ 10,000 pounds or • Passenger vehicle ≥ 16 passengers with GVWR ≥ 26,001 • 47 O.S. §1-107.2

18. Class C • Any single vehicle or combination of vehicles: • 1. Required to be placarded for hazardous materials; or • 2. Passenger vehicle ≥ 16 passengers with GVWR ≤ 26,000 pounds • 47 O.S. §1-107.3

19. Class C CDL with HAZMAT endorsement • GVWR (truck) 7,000 and (trailer) 4,000

20. Same truck from previous slide with this trailer Class A CDL required GVWR (truck) 7,000 and (trailer) 20,000

21. Conviction for a CDL Holder

22. 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

23. 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

24. 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.

25. Masking

26. 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.

27. 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

28. No Equal Protection Violation • 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)

29. 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.

30. 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.

31. 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

32. 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

33. 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

34. National Traffic Law CenterMasking Quick Reference Guide https://ndaa.org/wp-content/uploads/Masking-Quick-Reference-Guide.pdf

35. DUI • Prosecutor allows a plea conditioned upon alcohol treatment and adjourns case 6 months. • Court allows non- adjudication. Non- adjudication is a process by which after a guilty plea or trial, the court withholds acceptance of the plea and sentence thereon, pending successful completion of any conditions imposed by the court. Upon successful completion of said conditions, the case is dismissed. Masking? National Traffic Law Center Masking Quick Reference Guide https://ndaa.org/wp-content/uploads/Masking-Quick-Reference-Guide.pdf

36. Yes, is Masking • Non-adjudication for CDL or CLP (Commercial Leaner’s Permit) holders is prohibited. These actions prevent the reporting of violations and hides a driver’s true driving history.

37. DUI • Dismisses case because of insufficient evidence. • None. Masking? National Traffic Law Center Masking Quick Reference Guide https://ndaa.org/wp-content/uploads/Masking-Quick-Reference-Guide.pdf

38. No, not Masking • Prosecutor (or judge) may dismiss case for factual or legal inadequacies. Even a reduction would be permitted for this purpose.

39. Using Cellphone While Driving • No reduction offered. Driver pleads as charged. • Court allows withdrawal of plea and driver enters new plea to a lesser charge, because driver complains his/her CDL will be revoked if convicted of the original citation. Masking? National Traffic Law Center Masking Quick Reference Guide https://ndaa.org/wp-content/uploads/Masking-Quick-Reference-Guide.pdf

40. Yes, is Masking • If no legal basis exists to the withdraw plea and enter a lesser plea, and withdrawal of the plea was based solely on sympathy, this is Masking.

41. Failure to Yield • None. • Court convicts but allows traffic school in lieu of reporting conviction. Masking? National Traffic Law Center Masking Quick Reference Guide https://ndaa.org/wp-content/uploads/Masking-Quick-Reference-Guide.pdf

42. Yes, is Masking • This practice is called diversion. Allowing driver, after adjudication of guilt to perform actions that will result in conviction being reduced/dismissed is prohibited

43. Reckless Driving • None. • Court accepts plea of no contest, removes case from docket for 6 months and then dismisses citation based on driver’s clean history. Masking? National Traffic Law Center Masking Quick Reference Guide https://ndaa.org/wp-content/uploads/Masking-Quick-Reference-Guide.pdf

44. Yes, is Masking • This practice is known as deferral. An adjournment pending dismissal is prohibited. This action prevents the timely reporting of a conviction.

45. Speeding 20 mph over the limit in personal vehicle • Prosecutor reduces to parking ticket after defense attorney argues driver was NOT in a CMV and if convicted, will lose CDL. • Court accepts plea to parking ticket and fine is paid. Masking? National Traffic Law Center Masking Quick Reference Guide https://ndaa.org/wp-content/uploads/Masking-Quick-Reference-Guide.pdf

46. Yes, is Masking • Regulations apply to all vehicles. Driving in non- CMV is not a defense. Also, not every conviction will result in CDL revocation. See tables in 49 C.F.R. §383.51.

47. Failure to obey a traffic device • Prosecutor amends charge to Defective Muffler. Defective muffler ticket is filed with the court. • Court accepts plea to Defective Muffler and fine is paid. Masking? National Traffic Law Center Masking Quick Reference Guide https://ndaa.org/wp-content/uploads/Masking-Quick-Reference-Guide.pdf

48. Yes, is Masking • Amending a charge prior to filing in court constitutes Masking, if no legal/factual basis exists to do so. Amending charge to a charge for which no probable cause exists may be ethically questionable.

49. Leaving the Scene of a Collision • None. • Driver makes charitable donation to Mothers Against Drunk Driving, Victim’s Impact Fund or the local Little League. Court dismisses citation upon proof of charitable contribution made. Masking? National Traffic Law Center Masking Quick Reference Guide https://ndaa.org/wp-content/uploads/Masking-Quick-Reference-Guide.pdf

50. Yes, is Masking • Reduction or dismissal of CDL or CLP cases (without legal/factual basis to do so) predicated on charitable donations is prohibited, and may be considered ethically questionable.