By Jeff McConnell & James Mennella
attorneys at law
We once again visit the great state of North Carolina and look at civil penalties. The beauty of the system is that the state is making money not only from the administrative civil penalty side, but also from the court side if traffic citations are written to the alleged violator. So, carriers and drivers, beware: Your rights are limited in these instances requiring specific action.
Q: One of my trucks was traveling through North Carolina and suffered a tire blowout. While the driver was waiting for the roadside tire service, a North Carolina Highway Patrol officer stopped and filled out a “Driver/Vehicle Examination Report” and then issued an “out of service fine citation” for $100. What’s going on here?
A: The officer placed the vehicle out of service and wrote a violation under section 393.75 of the FMCSRs, which has to do with tires. Although the driver was not issued a traffic citation for defective equipment, he was given the “out of service fine citation,” which is a civil penalty.
In this case, the state agency is seeking monetary relief in the form of a civil penalty for the violation of its rules and regulations. Civil penalties are generally used to compensate for the wrongdoing as opposed to a criminal penalty, which is used to punish for the wrongful act.
Q: My driver was pulled over by the North Carolina Highway Patrol and issued citations for possession of a radar detector and police scanner. He went to court, and one of the charges was dismissed. But the state has charged me, as the motor carrier, for both of these violations to the tune of $530. What is this about?
A: The FMCSR sections that your driver allegedly violated have a neat little provision in them that reads as follows: “No motor carrier shall require or permit a driver to violate any paragraph of this section …”
So even though you had little control over what your driver did, the regulations impose a duty (liability) on the motor carrier if the regulation is violated.
Q: So what can be done about these types of civil penalties?
A: Depending on the circumstances, you will want to deny liability for the penalty. There is a specific procedure laid out in section 20-178.1 of the North Carolina General Statutes. To summarize, here is what you need to know.
You must pay the penalty within 30 calendar days after the penalty is assessed or must have made a written request for departmental review of the penalty. If you fail to respond within 30 days, you are deemed to have waived your right to review.
If you ask for departmental review, your request must also state sufficient information that a determination can be made as to why liability is being challenged. Once reviewed, the department will determine whether the penalty was assessed in error.
If the department responds that the penalty was not issued in error, you have 30 days to pay the penalty or you can seek judicial review.
Judicial review requires that you pay the penalty to the department within 30 days of its decision and within 60 days of the decision to bring an action for refund against the department in the appropriate superior court.
The Superior court then reviews and hears your case, rendering a final decision. 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