Bottom Line
Road Law
Money talks

By Jeff McConnell & James Mennella
attorneys at law

 

At Road Law, we encounter unbelievable frustration on a daily basis in dealing with administrative agencies and fighting for your rights.

Here’s a glimpse into a recent conversation with a high-ranking Department of Public Safety official regarding the definition of the term “masking” and the immense power the feds have over the individual states with the threat of pulling federal funds for non-compliance.

If you’re still confused after you read the answer provided by the state official, just look at the title of this column again. It will make perfect sense.

In its purest sense, “masking” simply means hiding. So, for example, you receive a ticket, you go to court, you’re convicted, and you pay your fines and costs. But the court “hides” your conviction in the clerk’s desk and doesn’t report it to the state Department of Public Safety. That’s “masking,” i.e., not reporting a conviction that should legally appear on your driver abstract.

§384.226

Prohibition on masking convictions.

The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CDL driver’s conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (except a parking violation) from appearing on the CDLIS driver record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State.

The feds say masking is not allowed for CDL holders, and we accept that. What we don’t accept are the seemingly endless, totally random, made-up, fictitious, state-produced definitions of what “masking” is.

Here’s a dialogue we had with a state official.

Q: Can you tell me how I can get in touch with Mrs. X as I would like to discuss a recent conversation she had with the court clerk in Y County regarding CDL traffic offenses and masking.

A: She is just one of our clerks and doesn’t have any authority to give legal advice or provide court training. What is your concern?

Q: Your department recently submitted a statewide memo regarding the “reporting of traffic offenses/convictions (of commercial drivers)” from the various courts to your department.

Your memo stated, “It is still considered ‘masking’ for a judge to reduce a charge that has been brought before the court. However, if a prosecutor determines that the initial offense is not appropriate and reduces the charge (because of either an anticipated plea bargain or insufficient evidence on the original charge) before it is presented to the court, such action would not fall within the scope of ‘masking.’ ”

How did your office come up with a distinction between prosecutorial and judicial discretion in terms of “masking”?

A: That is how the feds told us the rule is interpreted and that is what our policy is on the matter.

Q: Just so we’re all clear on your definition of “masking” – simply stated, judicial decision is masking but prosecutorial decision is not masking. Other than being told this is the interpretation of the rule, do you have any case law or a written opinion on which you base this belief?

A: Listen, the state receives millions from the feds every year in funding compared with the amount we receive from CDL traffic violations. We don’t spend a lot of time worrying about the individual complaints of commercial drivers.

We ended this frustrating conversation by telling this state official with DPS that we would like to discuss the issue with contacts at the federal level and try to clarify some of the issues discussed. We asked that Road Law be provided material and/or names. While this official said he would see what he could find when he got back to his office, we have not received any material.

We hope to discuss in a future issue what we find with the feds. 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.

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