Minnesota State Patrol urges CVSA to scrap fatigue out-of-service criteria

By Jami Jones, Land Line managing editor | 9/26/2012

The Minnesota State Patrol sprang into action following a court hearing last week and is urging the Commercial Vehicle Safety Alliance to abandon the current fatigue out-of-service criteria.

Friday, Sept. 21, a hearing was held in the U.S. District Court for the state of Minnesota on a motion filed in June by the Owner-Operator Independent Drivers Association. That motion challenged that CVSA’s new out-of-service criteria conflicted with the court’s 2011 ruling in OOIDA’s lawsuit contesting the state patrol’s fatigue enforcement practices.

That new CVSA out-of-service criteria, in place since April 1, states that a driver can be put out of service if the inspector has “reasonable articulable suspicion.”

That standard permits an inspector to put a driver out of service with less evidence than the “probable cause” standard required by Judge Donovan Frank’s Sept. 21, 2011, final decision. That ruling also ordered that the state patrol not modify the fatigue enforcement program that relies on the probable cause standard.

The OOIDA motion heard this past week – on the anniversary of the court’s ruling – asked the court to compel the Minnesota State Patrol and CVSA to show why the two groups aren’t in contempt of court by ignoring the court’s order and adopting out-of-service criteria based on the lower legal threshold of suspicion and not probable cause.

Apparently, comments made by Judge Frank at the hearing prompted the state patrol to urge CVSA to rescind the current out-of-service criteria and adopt criteria that complies with the 2011 court’s ruling. Minnesota State Patrol Chief Col. Kevin P. Daly sent a letter on Sept. 24, during the CVSA fall conference, to CVSA Executive Director Steve Keppler calling for changes to the out-of-service criteria.

In the letter, Daly alerted Keppler to comments made by Judge Frank in the hearing.

“Judge Frank expressed concern that in adopting the reasonable suspicion standard, the CVSA apparently had not adequately considered his 2011 court order and the state patrol’s general order,” Daly wrote to Keppler.

The state patrol’s general order referred to in the letter retooled the patrol’s fatigue enforcement program and included probable cause as the legal hurdle that must be met before putting a driver out of service. The probable cause standard was approved by Judge Frank as the  proper constitutional standard for placing a driver out of service for fatigue.

The court’s Sept. 21, 2011, final order enjoined the state patrol from violating the Fourth Amendment Rights of members of OOIDA and from modifying the current General Order that governed the fatigue enforcement program.

However, in April of this year, the CVSA adopted the criteria that ran counter to the federal court’s ruling, creating inconsistent legal standards.

“As Judge Frank noted, the CVSA’s website states, ‘At CVSA, uniformity is the key to everything we do.’ Judge Frank stated that the CVSA’s adoption of the reasonable suspicion standard, rather than creating uniformity, created a lack of uniformity,” Daly wrote to Keppler.

The letter goes on to say that the state patrol agrees with Judge Frank’s observation.

Daly urges the CVSA in the letter to implement a procedure to adopt out-of-service criteria that comply with the 2011 court ruling and in the meantime rescind the current out-of-service criteria.

The court’s ruling on whether it may hold the Minnesota State Patrol and CVSA in contempt of court is expected in 30 to 45 days.

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