It never fails! At least once a week we get a call from a driver that says he’s got a copy of a letter that was written by Ex-Senator Paul Simon of Illinois. Yeah right! If you actually read this particular letter, you’ll find a lot of grammatical errors, spelling errors and no official seal, just to name a few mistakes. Hardly the type of letter you would expect from a U.S. Senator!
For the record, neither Simon nor his staff wrote this particular letter, period! If you have the bright idea to give this totally bogus letter to the police officer when stopped for a logbook ticket, don’t! The only thing you’ll accomplish is to make the officer mad, which will tie your attorney’s hands and hurt your chances of having the matter dismissed/amended when you go to court.
Recently, we received an e-mail question regarding the infamous Simon letter and logbooks. We’ve reprinted this question for you. OK, ladies and gentlemen, let’s settle all the lies, tabloid gossip and misinformation about logbooks, the Fifth Amendment and your right against self-incrimination once and for all. In this edition of “Road Law,” we’ll talk about logbooks and give you the plain facts. Here’s the truth.
Question: I think it’s against my Fifth Amendment right against self-incrimination to have to show my logbook to the cops. Will you please tell me what the courts say about this?
Answer: We don’t know of any cases that specifically talk about showing your logbook to an officer and why doing so is or isn’t self-incriminating. But, that’s OK. All we really need to do is look at similar cases that deal with other documents, like your income tax returns, and how your Fifth Amendment right against self-incrimination applies in those “document” cases. Once you know what the courts have done in these cases, you can be reasonably sure what they’ll do in a logbook case.
For example, there’s a case called Garner vs. United States. (If you want to look it up and read it, the citation is 424 U.S. 648.) This guy, named Garner, was a professional gambler whose (let’s just say) “incriminating” income tax return was used against him in his criminal trial for illegal gambling. Now, Garner was facing a lot of jail time if convicted, so he argued that simply filling out his tax return and filing it was “compulsory self-incrimination” and, therefore, illegal according to the Fifth Amendment.
Unfortunately for Mr. Garner, the court didn’t buy his argument. The court said that the questions asked in an income tax return are “neutral on their face and directed at the public at large.” All this means is that the court didn’t believe the questions in the tax return (or the answers) were incriminating at all.
Using the case of Albertson vs. SACB 382 U.S. 70, the court went on to say, “The great majority of persons who file income tax returns, do not incriminate themselves … and the requirement that such returns be completed and filed simply does not involve the compulsion to incriminate.” In fact, the court told Mr. Garner, under Kastigar vs. U.S. (1972), to remember what it actually took for something to be incriminating. The court said that for information to be incriminating, it can’t just reveal criminal activity, but it has to “produce the real likelihood or risk of imprisonment.” That’s right! Because there’s almost never any jail time when you’re convicted of a logbook ticket, there’s no way a court will say that giving your logbook to the police is self-incriminating!
So, you’re still not convinced that handing your logbook over to the cops isn’t “self-incriminating”? OK, get out your little green and white paperback Federal Motor Carrier Safety Regulation handbook. Turn to section 395.8 and read all of it. Section 395.8 doesn’t ask you to make false entries about where you’ve been or what you’ve done. In fact, a logbook form doesn’t have any questions at all, only a grid for you to fill in. So, if there are no questions in your log and no jail time with a logbook conviction, you’re going to lose your Garner argument!
So, you want to know what the Fifth Amendment actually says? Here it is:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Now, you might be surprised to learn that the Fifth Amendment privilege is a personal privilege that only can be claimed by an individual. A corporation can’t take “the Fifth” to remain silent and many corporate records and documents aren’t privileged for self-incrimination purposes. This raises an interesting problem for commercial drivers. Don’t you think that a driver’s record of duty status might actually be a corporate document owned by the company that you work for, or your own company if you’re incorporated with your own authority? In this situation, just because the logbook is in your possession doesn’t automatically give you a privilege against self-incrimination under the Fifth Amendment. Interesting, isn’t it?
For argument sake, let’s say that a court someday decides you do have a right against self-incrimination when it comes to your logbook. Does this mean you’re out of the woods? No! Even if a court decides that logbooks are covered under the Fifth Amendment, the court still will do a “balancing test” to see if your rights against self-incrimination are more important than the government’s right to know. (If you want to know more about this balancing test, look up Schmerber vs. California 384 U.S. 757 (1966) and Winston vs. Lee (1975).)
Basically, this balancing test is where the court weighs your right against self-incrimination against the government’s right to know. In plain English, on the one hand is your right not to have your logbook checked by the cops weighed against the general public’s right to be safe. Who do you think will win? You or the general public? That’s right, the general public! Why? Because, even if you tried to argue the facts in Garner, (the gambler/tax return case) the court would tell you that if you lie on your tax return, there’s no threat that you’ll fall asleep, run off the road and kill 10 people. If you lie on your logbook, there is a threat that you’ll fall asleep, run off the road and kill 10 people. That’s why it’s unlikely that the courts would say your right against self-incrimination is more important than the public’s right to be safe. Hey, don’t shoot the messenger. We don’t make the laws, we just tell you about them.
So here’s the bottom line. You don’t have a Fifth Amendment right against self-incrimination when it comes to your logbook because:
- There are no actual questions on your log.
- Usually, there’s no jail time when you’re convicted of a logbook ticket.
- Whether you’re an incorporated owner-operator or company driver, logbooks are corporate records, not yours individually.
- Even if the courts ever do decide that logbooks are covered under the Fifth Amendment, public safety rights will always outweigh a driver’s right against self-incrimination.
- The Ex-Senator Paul Simon letter is totally bogus!
We hope you can use the information in this column to help with every day, real life problems you face on the road. We invite you to send us any questions or comments you may have regarding transportation law to ROAD LAW, 1330 N. Classen Blvd., Suite 215, Oklahoma City, OK 73106; fax to (405) 272-0558 or contact us through our website at www.roadlaw.net. We look forward to hearing from you.