DAY THREE: OOIDA v. Minnesota State Patrol

| 9/16/2010

It was pouring down rain much of the day in St. Paul, MN, during day three of the trial of OOIDA’s challenge of Minnesota’s fatigue enforcement program, but inside the courtroom, one bolt of lightning took some off guard.

(Photo by Managing Editor Sandi Soendker)

This slide from a Minnesota State Patrol PowerPoint presentation outlines points of driver appearance to be noted during a driver interview.


The third day kicked off with OOIDA legal counsel Dan Cohen resuming questioning of defendant James Ullmer.

Ullmer is a Commercial Vehicle Inspector II, which is basically a civilian inspector within the Minnesota State Patrol. He was one of two inspectors who conducted the interview of plaintiff and OOIDA Member Stephen K. House in early May 2008 that resulted in House being placed out of service.

Cohen picked up questioning Ullmer about training he had received in terms of determining fatigue in commercial vehicle drivers and what sort of questioning was permissible to determine fatigue.

The defendant acknowledged to the court that asking drivers about their families, money issues and if they had adult reading materials such as Playboy was allowed within the program – and he had questioned drivers about such topics.

Questioning then shifted to the training provided by the state patrol on the fatigue enforcement program.

Ullmer told the court that over the course of his career with the state patrol he had seen PowerPoint presentations on fatigue.

When Cohen presented Ullmer with a PowerPoint presentation for review – one that included a slide outlining points of the “Driver Interview” and focused on the driver’s appearance – spectators in the courtroom were visibly surprised when the slide popped up on the screen for view.

The PowerPoint slide included a picture of Saddam Hussein, shortly after his capture, and a list of items to note on fatigue inspection reports, including bloodshot eyes, watery eyes, yawns and droopy eyelids.

The PowerPoint, which had been objected to by the defense on day two of the trial, was admitted into evidence.

As the third day progressed, OOIDA’s legal counsel reviewed the history of the fatigue enforcement program. Throughout the afternoon, witnesses were questioned on communication from superiors within the state patrol as to permissible use of the checklist in fatigue enforcement and the status of the overall program.

Cohen asked Ullmer about an email sent in April 2009. The email, as read into the court record by Cohen, directed members of the state patrol to “not tell the drivers that you need to fill out a checklist (worksheet), that you are taking a survey or any other statements that you use to reference the report.

“The report is for you to document what you observe, statements by the driver, notes for you to reference to and about the event.”

Ullmer admitted to the court, that after April 2009, he continued to use the checklist when interviewing drivers. He also told the court that he did not necessarily need the checklist to ask questions using the criteria on it.

Cohen then moved to a May 5, 2010, order signed by Col. Mark Dunaski that stated the fatigue inspection report “is no longer to be used to report observations during a driver inspection.”

When Cohen specifically asked Ullmer if that order “forbids you from using the criteria of the inspection report as well,” Ullmer told the court it did not.

Testimony from Maj. Ken Urquhart also eventually confirmed that despite the May 5 order ending the use of the checklist, inspectors still used criteria outlined on the checklist when conducting inspections.

“My understanding is that … form should not be used in a method where items would be checked off,” Urquhart told the court under cross-examination by OOIDA legal counsel Paul Cullen Sr.

As Cullen continued questioning Urquhart on how the information could be used following the May 5 order, Urquhart said that the “process should not be used” and “they should not be used as a check-off list.”

However, Cullen’s questioning eventually led to Urquhart telling the court that the criteria included on the now-prohibited checklist could still be considered during inspections.

The Minnesota State Patrol ended the fatigue enforcement program on Sept. 2, just 10 days before the trial began.

Denise Nichols, a longtime inspector with the Minnesota State Patrol, was on the schedule to present testimony on Thursday, Sept. 16. The court planned to adjourn midday Thursday, resuming the trial on Monday, Sept. 20.

The lawsuit was filed on May 13, 2009, with the U.S. District Court for the District of Minnesota. The case was filed on behalf of truck drivers placed out of service after members of the Minnesota State Patrol arrived at the conclusion the drivers were “fatigued.”

The Association filed suit against the Minnesota State Patrol; officers Dunaski, Urquhart, Doug Throoft; and law compliance representatives Christopher Norton and Ullmer – all in their individual official capacities.

– By Land Line staff

Editor’s note: Land Line Magazine will provide daily updates throughout the course of the trial. Updates will also air nightly on Land Line Now on Sirius 147, XM 171.