By Jeff McConnell &
Several OOIDA members called us with questions regarding tickets they recently received for “No Engine Brake Retarder,” i.e. No Jake Brake. Although most state motor vehicle codes don’t classify these violations as “moving” or “point” violations, the fines can be extremely high.
It seems many states have now found engine brake charges to be a very lucrative way to generate tax revenue while hiding behind the guise of “Public Safety.” Title 42 of the United States Code (USC) deals with the public health and welfare, and Chapter 65 specifically deals with “noise control” or “noise emissions standards.” Here are a few of the questions we received about engine brake tickets and our answers.
Q: I got a ticket for using my engine brake in Oklahoma, but I think Oklahoma’s noise standards are different than the federal standard. Can a state do whatever it wants when it comes to setting noise emission standards?
A: Not entirely. The general policy of the “Federal Noise Control Act” is that the primary responsibility for noise control is with state and local governments. The exception lies with noise sources for products in commerce, for which the Act sets out the appropriate noise emission standards.
Title 42 of the United States Code (USC) Section 4917 addresses the motor carrier noise emission standards and states that:
1. Subject to paragraph (2) of this subsection but notwithstanding any other provision of this chapter, after the effective date of a regulation under this section applicable to noise emissions resulting from the operation of any motor carrier engaged in interstate commerce, no State or political subdivision thereof may adopt or enforce any standard applicable to the same operation of such motor carrier, unless such standard is identical to a standard applicable to noise emissions resulting from such operation prescribed by any regulation under this section.
2. Nothing in this section shall diminish or enhance the rights of any State or political subdivision thereof to establish and enforce standards or controls on levels of environmental noise, or to control, license, regulate, or restrict the use, operation, or movement of any product if the Administrator, after consultation with the Secretary of Transportation, determines that such standard, control, license, regulation, or restriction is necessitated by special local conditions and is not in conflict with regulations promulgated under this section.
In other words, state and local governments have the ability to restrict or regulate noise emissions for purely “intrastate” activities as long as they are not affecting “interstate commerce.” There may be “special local conditions,” but they can’t conflict with the federal standard if one exists.
Q: I received a ticket for using my engine brake but I was in the middle of nowhere and the area wasn’t even marked “No Engine/Jake Brake.” Can I fight this ticket?
A: Of course you can fight your “noise emission” ticket, and you should. The charge of “No Engine Brake Retarder” can be legitimate when it’s issued in heavily populated areas for honest noise control purposes. Unfortunately, most of the citations we have seen were issued in sparsely populated areas, well outside most city limits.
In order to contest this particular charge, you’ll need to plead “not guilty” and request a trial. Once a trial date is set, the court will mail you notice and you can then appear on that date to testify.
Once you appear for trial, you’ll usually have an opportunity to speak with the prosecuting attorney about your case and, we hope, work out a less costly, amended charge. If you can’t work out fine reduction, you can proceed to trial. LL
We invite you to send us any questions or comments you may have regarding transportation law to: ROAD LAW, 3441 W. Memorial, Suite 4, Oklahoma City, OK 73134; fax to 405-242-2040; contact us through our Web site at www.roadlaw.net; e-mail us at email@example.com or call us at 405-242-2030.