Bottom Line
Road Law
Big Brother is watching you

Jeff McConnell & James Mennella
ATTORNEYS AT LAW

Big Brother, The Man, The Feds - these are well-known nicknames for the U.S. government. Now, we all love the USA and not everything the feds do is negative. There are a lot of good people working very hard and doing a good job working for the federal government. This column isn't about those employees.

This column is about a particular, current federal government policy gone haywire.

Do you remember the George Orwell book "1984" that you were probably required to read in high school? If you haven't read it, it's a dark, scary, futuristic story of government gone bad - real bad - basically because a busy population forgets the importance of voting or caring about the quality of their lives and simply allows Big Brother to tell them what to do and how to do it. It's a kind of reap-what-you-sow story.

Anyway, the main character in the story is a 30-something man named Winston who, in the beginning, distrusts and hates Big Brother but eventually "gets his mind right" with a lot of help from the Thought Police. In the end, Winston finally learns, shall we say, to accept his place and love Big Brother just like a big ol' cuddly teddy bear.

Whether, like Winston, you simply want to love Big Brother without question or decide to continue to work for a better tomorrow for all commercial drivers by continuing your support for OOIDA is a choice you'll have to make for yourself.

You need to make your choice sooner rather than later - because, ladies and gentlemen, whether you believe it or not, the Orwellian future has arrived.

It appears that the feds are on a mission to eradicate the commercial driver as we know him/her and will not be satisfied until they have emasculated and bullied every state legislature, motor vehicle department, court, judge and prosecutor into believing they're damned to hell if they attempt to help someone with a Class A driver's license.

In this column we discuss what we call democracy and bureaucracy gone wild.

Q: I recently went to court on a traffic ticket and the prosecutor told me he would like to help me, but that he didn't want to have any problems with the feds and that under the "masking" provisions his hands were tied. Is this true?

A: It depends. There is not a standard answer for each state on this issue, and each local jurisdiction seems to be forming an opinion on the matter. The text of the masking provision is as follows:

§384.226 Prohibition on masking convictions.

The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CDL driver's conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (except a parking violation) from appearing on the driver's record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State.

Many judges and prosecutors have been misinformed that amending traffic violations or allowing plea bargains somehow violates the prohibition on masking traffic convictions. That view is totally incorrect and contrary to the masking provisions themselves. When these provisions are incorrectly applied, it violates prosecutorial independence and judicial discretion.

Simply put, the anti-masking provisions currently in effect were designed to prevent courts from failing to report traffic convictions to a state DMV - period.

The anti-masking provisions were not designed to prevent a court from using judicial discretion to amend traffic violations. It's the act of the amended charge not getting reported to a DMV that violates the masking prohibition, not the actual amending of the original charge.

Q: I was trying to clean up my MVR and was able to get the judge to agree to amend my old conviction. I took my order to my home state DMV to get my record corrected; however, the clerk told me they could not accept my paperwork and that it would need to be transmitted electronically by the court. How do I get this done?

A: This is a good question and one that we have begun to see with many DMVs across the country. Generally, if you have a signed court order and you present that order to your state DMV they are required to correct your MVR to reflect the correct information.

The ongoing state DMV audits by the feds have left many waiting to exhale. One source at a state DMV - who wished to remain anonymous - told us that the feds were auditing that department's records to determine whether they were masking traffic convictions for CDL holders and accurately accounting for records sent to them electronically. In order to make corrections to the record in this state, the DMV must receive the information electronically from the state where the original information came from. 

In order to correct your record, you will need to call the court to see if staff there will transmit the updated information to the DMV of that state. A second call will need to be made to the DMV officials to make sure that they received the information and will transmit the information to your home state to correct the record.

Q: I recently received a disqualification notice from my DMV for two serious traffic violations. I committed the violations, but they were more than five years ago. Can they still disqualify me?

A: Many states are currently being audited by the feds and are under immense pressure to comply with the Federal Motor Carrier Safety Regulations. It is not uncommon to receive a disqualification notice such as the one you received.

The answer to your question will be in the administrative code of the state that is disqualifying you and whether there is a time limit in which they can bring enforcement action.

Send any questions or comments regarding transportation law to: Road Law, 3441 W. Memorial, Suite 4, Oklahoma City, OK 73134; fax to (405) 463-0565; send e-mail to roadlaw@att.net or call (405) 463-0566.

Aug/Sept Digital Edition