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Road Law
Out of service means OUT OF SERVICE!

Jeff McConnell & James Mennella
Attorneys at Law

In this issue, we’ll tell you about a lot of recent calls we’ve had regarding drivers who violated their out-of-service order and got caught. Whether you’re put out of service for not having your logbook up to date or for an equipment violation, out of service means out of service. Here’s a sample of a few of our most recent questions.

Question: I was stopped by the highway patrol and put out of service for eight hours because my logbook wasn’t up to date. When the cop left, I started to drive my truck to the nearest truckstop to wait eight hours. Before I got there, the same cop stopped me again and gave me another ticket for “Violating an Out-of-Service Order.” I tried to explain that all I was doing was driving to the nearest truckstop to wait and that I hadn’t logged “on duty.” The cop still gave me the ticket. Why?

ANSWER: Once you’re put out of service, you can’t move your vehicle until the out-of-service time expires or the citing officer allows you to move. It’s that simple. If you move your vehicle before the out-of-service time expires or without the officer’s permission and you get caught, you’ll usually get a ticket for violating the out-of-service order. Unfortunately, there are no exceptions to the rule, and if you are in the middle of the desert or the nearest truckstop is 30 miles away, that’s just too bad.

Question: I came into a scale house and had my logs and vehicle inspected. The officer found several defects that needed to be repaired, and I was out of hours in my logbook. I was placed out of service for eight hours and told not to leave until the truck was repaired and the eight hours had elapsed. I had the truck repaired, but decided to leave after the scale house closed at 11 p.m. I just got a criminal summons in the mail from a court saying I have to appear to answer charges for violating an out-of-service order. What do I do?

ANSWER: First of all, never assume that just because the scale — or any facility for that matter — has closed that there isn’t surveillance equipment or someone watching the location. In your case, you probably were seen on videotape leaving the scale house prior to your eight hours expiring, and the officer then filed the complaint with the district attorney’s office.

Remember, an out-of-service order is a serious document. Whether it is for equipment reasons or for logbook reasons, it is not something you want to violate. You might want to get your green and white Federal Motor Carrier Safety Regulation pocketbook out and refer to the entire section of 383.51(d) for disqualification requirements.

In a nutshell, if you are convicted of your first offense of violating an out-of-service order, your CDL can be disqualified for not less than 90 days, but no more than a year. You also may want to check section 383.53 for the civil penalties involved. As the driver, you are to be assessed a civil penalty of not less than $1,000, but no more than $2,500. 

Also, it is vital for all employers to know that under section 383.53(b)(2), if you knowingly authorize, permit, allow or require a driver to operate a vehicle that has been placed out of service, you can be assessed a civil penalty of $2,500, but no more than $10,000.

Depending on the evidence, you definitely need legal help with this matter. The penalties mentioned are from the FMCSR only. Each state may also have additional penalties to those listed above, which may entail misdemeanor classification and the possibility of jail time if convicted. LL

We hope you can use the information in this column to help with everyday, 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; contact us through our Web site at www.roadlaw.net; or call us at (405) 272-0555. We look forward to hearing from you.