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9/28/2010
Trial highlights: Johnston testimony

The first day of the trial in U.S. District Court in St. Paul, OOIDA President and CEO Jim Johnston took the witness stand. Here are some highlights of Johnston’s testimony. He was questioned by OOIDA legal counsel Paul Cullen Sr. and cross-examined by state’s counsel Marsha Eldot Devine. He was on the witness stand for nearly two hours.

Direct examination of witness Jim Johnston by Paul Cullen Sr. regarding one day’s inspections during a FIST Saturation.

Mr. Cullen Sr.: How many inspections are reflected here in this report?
Mr. Johnston: There’s 38 Level 3 inspections and one Level 2 inspection … for a total of 39.
Mr. Cullen Sr.: … and does this report indicate how many fatigued drivers were identified during the inspections?
Mr. Johnston: It was 26.
Mr. Cullen Sr.: How is your math today, Mr. Johnston?
Mr. Johnston: I’m not real good but I am assuming that’s going to be about 65 percent.
Mr. Cullen Sr.: Would you believe if I told you that the math worked out to 66 percent?
Mr. Johnston: Yes.
Mr. Cullen Sr: And how do you react to that, that 66 percent of the drivers inspected on that day were found to be too ill or fatigued to drive?
Mr. Johnston: Well, once I get by my outrage over the whole thing, I come to the conclusion that, first of all, if these guys were violating the hours-of-service or logbook regulations, they would have been cited for that. So I assume that they are not in violation. ... I would have to say if this percentage of truck drivers operating down the roads of the United States were too fatigued to continue operating, that there would be death and carnage on the highways. That you would be picking up truck parts all over the country and that the public would demand an immediate shutdown of the trucking industry. In addition, I would say that when somebody can ferret out impaired drivers this easily, we've circumvented 75 years of hours-of-service regulations that were put in effect in 1935 and have been revised several times since. And millions and millions of dollars of enforcement and compliance costs have just been made meaningless.

Regarding out-of-service orders
Mr. Cullen Sr.: During her opening statement, counsel for the Defendant ... encouraged the Court to weigh what she called, “the mere inconvenience to House and other drivers against the important needs of the state in traffic safety.” Would you tell the Court what level of inconvenience is involved when a driver is placed out of service?
Mr. Johnston: Aside from the obvious where some of our complaints involved drivers five miles from home being placed out of service for 10 hours, that’s a substantial inconvenience. Beyond that, drivers are quite often terminated from their jobs because of being placed out of service. A large number of the drivers that talk to us with complaints on the practices up here reported that they were terminated from their job. And we verified that on several of them.

Cross-examination of witness Johnston by state’s attorney Marsha Eldot Devine regarding keeping impaired drivers off the road
Ms. Devine: To that extent, the Patrol and OOIDA have the same goal in mind, isn’t that the case, to try to keep impaired drivers who are dangerous on the roadways off those roadways so they are not hurt and so the public is not hurt. Correct?
Mr. Johnston: I think if the end goal is to create safe conditions on the highway, that is certainly our goal as well. Our way of getting there is going to be substantially different. The truth of it is, in some of these cases, it doesn't look like that was the goal. It looked to me like it was an opportunity to run up the score, actually.

Cross-examination of witness Johnston by state’s attorney Devine regarding out-of-service orders
Ms. Devine: But it has never been OOIDA’s position, has it, that a judicial officer like a judge should be present at a weigh station?

Mr. Johnston: No. We do have some concerns, though, particularly in the out-of-service, because that is an area where the driver is actually – the officer at the side of the road is judge, jury and executioner, because that guy never gets back that time he is out of service and he can't challenge it in court later and do away with it. It is gone and whatever damage occurred because of it is still there. So, we have some concerns in those areas.

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