The Owner-Operator Independent Drivers Association has learned there are 545 drivers who now have had fatigue violations expunged by the Minnesota State Patrol. The state went back to March 2008 and wiped those violations off the records of drivers cited for fatigue during a Level III inspection.
The Minnesota court has already found that the state patrol expanded the Level III inspections inappropriately and consequently violated drivers’ Fourth Amendment search and seizure protections. This was a point driven home by OOIDA during the trial of the Association’s lawsuit against the state patrol.
And while that’s good news for 545 professional truckers, there’s more to the story.
At the September 2010 trial where OOIDA challenged the state patrol’s fatigue enforcement program, 768 fatigue inspection reports were put into evidence by the OOIDA legal team.
Some of those 768 reports have OOS orders back to 2005, as much as three years earlier than the dates indicated on the recent expungement effort. What happens to those fatigue violations handed out before March 26, 2008, is not clear.
In the hearing held Friday, July 15, in federal court in St. Paul, OOIDA’s legal counsel Paul Cullen Sr. told U.S. District Court Judge Donovan W. Frank about the several hundred tickets that should also be expunged.
“The reason the state is not going back to 2005 – and there’s several hundred more tickets that should be expunged – is that the automated process to get that information to FMCSA does not exist,” Cullen explained. “So what is wrong with doing it the old-fashioned way, with a written list?”
Cullen volunteered to hand-carry that list to FMCSA in Washington, DC, and to personally deliver it. Judge Frank said he “would look into” what was happening with those fatigue violations.
It was also noted that 75 tickets were considered but denied expungement. OOIDA is questioning those rejections as well.
In an April 8 letter to U.S. District Judge Donovan W. Frank, Assistant Attorney General Marsha Eldot Devine advised the court that the Minnesota State Patrol has rescinded the out-of-service order for the fatigue violation issued to OOIDA member plaintiff Stephen K. House on May 28, 2001.
The letter also said that the patrol has “voluntarily rescinded the out-of-service orders for fatigue violations issued to commercial vehicle drivers by the patrol” between March 26, 2008 and May 4, 2010.
Devine wrote that these OOS orders are ones that “the Patrol believes are similarly situated” to plaintiff House. By “similarly situated,” it means the record does not show probable cause to support an out-of-service order for fatigue.
According to OOIDA, House got several fax communications from the Minnesota Department of Public Safety, Commercial Vehicle Section, confirming that the state patrol had changed its commercial vehicle driver enforcement program concerning fatigued and/or ill drivers.
Capt. Tim Rogotzke, commander of the commercial enforcement division, wrote to House that the change was made pursuant to a General Order dated May 5, 2010, and updated Aug. 24, 2010.
The letter, which appeared to be a form letter, announced that the fatigue violation issued to House in May 2008 had been rescinded. This was the OOS order handed to House at the scale house in Red River, MN, after he endured a battery of questions from two civilian inspectors, Christopher Norton and James Ullmer. Norton and Ullmer asked House about his neck size and magazines in his sleeper berth, as well as a number of other questions, and then determined the owner-operator from Springdale, WA, was “fatigued.”
The faxed letter announced that the patrol has made the “necessary revision in the SafetyNet system to reflect the rescission.” A copy of the revised inspection report was faxed to House as well. House was told this will change the driver and carrier safety profile in the U.S. DOT Safety and Fitness Electronic Records (SAFER) system.