By Jeff McConnell &
Attorneys at law
No, we’re not going to start this column by picking on the great state of Arizona. In fact, the “use fuel” problem we’ll be discussing could have happened in any state with similar statutory laws and fuel tax procedures.
One driver recently called us with an unusual problem he encountered while operating his commercial vehicle in Arizona. This particular driver was given a ticket from an Arizona highway patrolman, followed by a notice of assessment issued from the Arizona Department of Transportation, for allegedly attempting to violate the Arizona “use fuel” law.
Specifically, the state of Arizona claimed that the driver was attempting to purchase diesel fuel at the light class/exempt rate diesel pump and thereby cheat the state out of about $.08 per gallon. What happened?
Q: I was driving my 1999 Kenworth through Arizona when I pulled into a truck stop for fuel. I’d never been to this particular stop or fuel island before so I pulled up to the first pump that said “Diesel.”
I started to fuel my truck when a state police officer came up to me and told me that I was fueling from a “light class” pump and not from a “use class” pump. I stopped fueling immediately and had only pumped about 30 gallons.
I asked the officer how he knew I was fueling from the wrong pump, and he said that the pump I was using had a sticker stating that it was a light class pump. I looked at the pump and even had the officer look at the pump. Neither of us found any sticker on the pump handle or pump itself on my side of the fuel island.
Finally, we walked around to the other side of the pump and found an old, faded, partial piece of a light class fuel sticker. I asked the officer how the heck was I to know about an old, torn sticker on the other side of the pump? The officer told me that wasn’t his problem and gave me a ticket.
About a week later, I received a notice of assessment in the mail from Arizona claiming I owed the state $1,002.30 for using the wrong diesel pump. When I calculated the difference in taxes from the “use class” pump and the “light class” pump and multiplied the difference by the amount of fuel I actually pumped, I came up with a difference of only $2.30. Do I really owe the additional $1,000? Help!
A: The state of Arizona claims you owe them a $1,000 penalty for using the wrong fuel pump. But, you have an excellent argument that your assessment should be dismissed.
First, “use fuel” or “use class” fuel includes all gases/liquids, including diesel, used or suitable for use to propel motor vehicles, except fuels that are subject to the motor vehicle fuel tax (gasoline).
In Arizona, the law (ARS 28-5623) states that “ … if a person intentionally purchases “Use Fuel” for the use in a use class motor vehicle [and isn’t exempt for any other valid reason] and the person pays the use fuel tax rate for a light class motor vehicle, … the person is subject to a civil penalty of one thousand dollars or ten dollars for each gallon of use fuel dispensed, whichever is greater …”
Of course, the state of Arizona will argue that you did “intentionally purchase” use fuel at the light-class tax rate and you owe the $1,000 penalty. But your argument is that you did not “intentionally purchase” use fuel at a light class rate because the vendor or fuel seller didn’t have the pump adequately marked as required by Arizona law.
If the subject fuel pump had been properly marked and you tried to fuel there, that would have been an “intentional purchase” and would have subjected you to the penalty.
Simply picking up an unmarked pump handle and squeezing the trigger can’t be considered intentional for the purpose of this particular law. Because you would have to have known or should have known you were fueling from the wrong pump for the assessment to be levied against you, you have a good argument. Good luck. 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.