By Jeff McConnell &
Attorneys at law
Masking. This has to be one of the most misunderstood, misapplied, wrongly interpreted and abused concepts of the entire Federal Motor Carrier Safety Administration arsenal. Now, the purpose of this article isn’t to bash the FMCSA. In fact, the purpose of this article is quite the opposite. Even though we disagree with the entire “masking” concept, at least the FMCSA gets it right when it comes to defining and implementing the term itself.
The concept of “masking,” as invented and defined by the FMCSA, is really very simple. Not allowing a state court to “mask a conviction” simply means the feds don’t want state courts to “prevent” or “postpone” traffic convictions from being reported to a driver’s home state.
If you’re convicted of a traffic offense, it’s got to be reported to your home state. So, if the term “masking” is really that simple, then why is it being grossly and perhaps even unconstitutionally misapplied to CDL drivers? For something a little different, we’re going to ask you the questions and, before you read the answers, think about it, draw a conclusion and see if you’re close. Good luck.
Q: You’re issued a ticket for “improper lane change.” Before the ticket is filed with the court, the prosecutor determines to only file the charge as a “defective muffler.” Final conviction is for “defective muffler,” and that is the only charge ever signed by the prosecutor or filed with the court. Is this masking?
A: No. This practice is not in violation of 49 CFR 384.226 because the violation was reduced before a judgment of guilt was pronounced. Before we can apply the conditions in 49 CFR 384.226 to determine whether masking has taken place, there has to be a judgment of guilt (conviction) for a violation. The masking provision in 49 CFR 384.226 does not prevent plea bargaining from taking place.
Q: A CDL holder operating a noncommercial vehicle is issued a traffic citation for “Failure to Yield Right of Way.” The court convicts the driver of the “failure to yield right of way” charge, and the conviction is posted to the driver’s record. A driver improvement program is allowed in lieu of having points assessed on his/her driver record. Is this masking?
A: The failure to assign “points” does not violate 49 CFR 383/384. However, if the federal regulations required the imposition of a disqualification period for the convicted offense – and the court then allowed a Driver Improvement Program in lieu of having the director impose a disqualification for the prescribed period of time – this would be in violation of 49 CFR §384.215/384.213/384.231 as a diversion deferral program.
Q: You receive a traffic ticket and try to work a plea bargain with the prosecutor, who tells you that because of the “masking” rules he can’t help you. Is this correct?
A: Generally, the answer is no. The “masking” provision is not a prohibition on prosecutorial or judicial discretion. However, we have found that many have either misinterpreted the rule, been taught incorrectly, or are using it as a scapegoat to wash their hands of plea bargaining CDL cases. 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 firstname.lastname@example.org.