Bottom Line
Road Law
‘Overweight’ outrage

By Jeff McConnell & James Mennella
Attorneys at law

 

In this issue of Road Law we’ll tell you about a big problem that’s been plaguing drivers for years. Take a close look at the title of the sample lawsuit we’ve included with this column. It looks pretty much like the paperwork we’d submit to the North Carolina State Highway Patrol, Motor Carrier Enforcement Section, after the client/driver received an “overweight” ticket in that state.

These “overweight” tickets are unusual because they were all issued even though the vehicles were not overweight. That’s right, the driver or drivers were given overweight tickets even though they were well within their special permit limits.

How is this possible you ask? Well, we’ve been asking North Carolina the same question for years and only recently received an answer. The following will help answer this question.

Q: I was hauling an oversized load in North Carolina, and I stopped at the scale house for the officer to check my load. The officer first checked my escort car and said the left brake light was out. The officer gave me a $500 ticket for the brake light on the escort car.

The officer told me that because my permit required a properly “certified” escort car and mine had a burned out left brake light, my escort car wasn’t “certified.” And because it wasn’t “certified,” as my permit required, he was invalidating my entire permit. And, because I no longer had a valid permit, he gave me an overweight ticket for $27,894.32.

I thought he was joking. Was he joking?

A: Unfortunately, no. This is definitely not a joke. Your question is almost identical to an actual case we recently had. We had a client fined $500 for an operational violation of a special permit and $24,580.04 for a “weight violation.”

Just as you stated in your question, our client gave the officer a valid weight permit for the load he was hauling. The officer invalidated his permit alleging that the required companion escort vehicles were not properly “certified,” and that this minor, procedural violation invalidated the entire overweight permit even though his vehicle was below the special permit’s allowable weight.

However, we recently got some very good news from the North Carolina Court of Appeals regarding this exact problem. There was a decision in a case – Daily Express Inc., v. North Carolina Department of Crime Control and Public Safety, Division of State Highway Patrol; Wake County Case No. 06-CVS-015962 – where a NC State Highway Patrol officer invalidated an overweight permit due to a procedural violation involving an escort vehicle.

Because of a procedural permit violation on their escort vehicle, Daily Express Inc. was fined $500. In addition, Daily Express was also penalized $24,492.03 as a weight violation based on the failure to travel with an escort pursuant to section 20-119(d) and sections 20-118(e)(1) and (3), as if no special permit existed at all even though their vehicle had a gross weight below the special permit’s allowable weight.

The North Carolina Court of Appeals didn’t agree with this ridiculous procedure either and held that in order to penalize a special permit holder as if that person/company had no permit at all, the statutory language of Section 20-119 must be clarified to relate that intent.

Without such unambiguous language, the court held that said statute must be construed in favor of plaintiff, the party being penalized – i.e. a weight penalty is only allowed if a truck exceeds the weight listed in the special permit, or if the truck operator has no permit at all. A state official cannot use a small, procedural problem as an excuse to invalidate an otherwise perfectly good special permit.

Like Daily Express, it appears that you also had a valid special permit at the time you were stopped and that your truck did not exceed the gross weight listed in your special permit. Therefore, you can only be penalized for your small, procedural “escort” violation, which carries a maximum fine of $500 according to the NC General Statute Section 20-119(d)(1). LL

 

Send any questions or comments regarding transportation law to: Jeff McConnell and James Mennella, Road Law, 3441 W. Memorial, Suite 4, Oklahoma City, OK 73134, call 405-242-2030,
fax 405-242-2040, or e-mail roadlaw@att.net.