Tuesday, May 28, 2013

Another example that DataQ doesn’t click for truckers

We get all kinds of calls here at the OOIDA HQ from all kinds of people. Occasionally those calls are cries for help in the “Dr. Phil” sense –e.g., the caller who wanted to warn us about “lizard people” in Congress, the caller who wanted to tell us about a fight they’d had with a motel desk clerk, or another well-meaning caller who wanted to know what OOIDA could do to help “a friend of a friend who won’t use truck-specific maps.”

But more often than not, those calls are from truckers with serious issues who feel they’ve got nowhere else to turn.

Case in point: we got a phone call last week about what sounds like a highly questionable “sting” involving seatbelt violations at a scale in New Mexico.

The caller outlined a scenario in which one of the drivers for the company the caller represented was pulled into a weigh station. The stop seemed pretty routine initially, and the driver’s tandems were overweight. One law enforcement officer asked for the driver’s paperwork.

The caller said the driver unbuckled his seat belt to reach his logbook and other papers, which he then handed to the officer. The officer then instructed the driver to park the rig nearby.

And this is where things start to get weird.

According to this version of events, once the driver put his truck in gear to follow the directions of the officer, a second cop jumped up on the sideboards of the truck and issued him a citation for driving without a seat belt. The company he was working for has a zero-tolerance policy on seat belt violations and was forced to fire him.

But even more than the “Gotcha” tactics at the scale, the issue this driver and countless others face becomes what to do about the penalties that affect the CSA scores of the drivers and the company. Higher scores can have several bottom-line impacts on trucking companies, and are meant to discourage shippers from using “unsafe” carriers.

I reached out to James Mennella, of Road Law, an Oklahoma City-based firm specializing in trucking and transportation legal issues, to see what, if any, recourse there might be for this driver and this company. He said this is a situation that many drivers face on a daily basis. Unfortunately, there aren’t a lot of options for truckers who want to fight the charges or a subsequent challenge to the CSA score.

“The first way to address the problem is to fight the citation in court,” Mennella said. “The pitfall to the New Mexico citation is the Penalty Assessment section, which we wrote a column several years back. If the driver initials that section and signs the ticket, he/she has just pled guilty to the violation. The ticket is then payable to Santa Fe and not returnable to the court.”

If the driver did not initial Penalty Assessment and the actual court is written at the bottom of the ticket, it can then be challenged, Mennella said.

“The second way to address the issue is to utilize the DataQ challenge through the FMCSA website and challenge the report,” he said. “Winning the traffic citation portion in court does not always guarantee that the records will be corrected by the FMCSA through the DataQ challenge. However, what disputing the citation in court does is to provide ammunition for the DataQ challenge as well and any enforcement action that may take place down the road.”

OOIDA itself has already filed two separate suits against FMCSA over the DataQ challenge, first in July of 2012 on behalf of four members who were charged with violations that were ultimately dismissed by the court. Despite the dismissal of all charges in those cases, the FMCSA continues to report the violations. The lawsuit is still pending. A second suit filed on behalf of OOIDA Member Fred Weaver was filed in May of 2013.

“As we have written, and what OOIDA is concerned about is that CSA is contradictory to our criminal justice system in that you are not innocent until proven guilty,” Mennella said. “It is just the opposite. You are deemed to have violated any and all sections listed on the examination report, and your only recourse is to file the DataQ challenge up an until a civil penalty is issued wherein you will have the right to address the matter before an ALJ (administrative law judge) and the federal system.”