By: Daniel M. Fox
It's 6:30 a.m. and you’re driving down the highway when you notice the big rig with out-of-state plates closing fast on your rear bumper. You begin to wonder, “how much sleep did that driver get last night?” You walk your daughter to the school bus stop. The bus pulls up and the door opens. You catch a glimpse of the driver and reflexively ask yourself “is that guy using meth?” Think about it: you’re a prosecutor, and you don’t even know where to start to look for answers to these types of questions.
Commercial Motor Vehicle (CMV) drivers and companies are in the business of making money. So, how does one prevent a mass migration of drivers and companies to the jurisdiction with the lowest cost and least restrictive licensing, regulation and enforcement scheme? Meet FMCSA, the Federal Motor Carriers Safety Administration.
Created by Congress in 2000 as part of the Department of Transportation, the FMCSA is charged with improving public safety by reducing crashes, injuries, and fatalities involving large trucks and buses. FMCSA carries out this mandate by working with Federal, State and local governments as well as the motor carrier industry and labor interests to develop and enforce rational safety standards. If the vehicle in question weighs more than 13 tons, carries hazardous materials or conveys more than 16 passengers, then the vehicle, the driver and the company most likely fall under FMCSA regulatory standards. The FMCSA only sets minimum standards and the states are free to impose higher regulation. However, the states must agree to at least the minimum standards to become part of the FMCSA framework. All 50 states have signed on with the FMCSA.
FMCSA carries out its duties by focusing primarily on two groups of industry players: the drivers and the operating companies. Regarding CMV drivers, FMCSA acts primarily in a regulatory manner. FMCSA treats operating companies both as a group to be regulated but also as a partner in improving public safety.
Driver Regulation
The driver is the most critical element in CMV safety. If the vehicle itself is unsafe, we count on the driver not to take it out on the road. Likewise, if the driver is unfit, we trust that he or she will not be put out on the road. FMCSA has set forth minimum standards of driver knowledge and skills competency for the issuance of CMV licenses. In addition, FMCSA has worked diligently to establish on-going review criteria of driver’s post-license issuance. Similar to the FAA’s regulatory scheme for aircraft pilots, FMCSA mandates an annual medical examination to ensure that drivers maintain the physical and mental ability to control the vehicles under their control. In 2008, the Hours of Service (HOS) rules were made more stringent: a driver can only be behind the wheel 11 hours in a 24 hour period and can be on the job no more than 14 hours in a day. A driver must rest 10 hours between shifts and can drive no more than 60 hours in a week. To reset the weekly work schedule now requires 34 hours of continuous rest. FMCSA also imposed upon a driver a duty to report any traffic violation (except parking) to the employer within 30 days, regardless of the type of violation or the vehicle being operated at the time of violation.
Perhaps the two most important areas of driver regulation that FMCSA has championed are the prohibitions on multiple driver’s licenses and drug/alcohol use. In 1986, the U.S. Congress made it illegal for a CMV driver to hold more than one driver’s license. At the time, many drivers held multiple commercial and non-commercial licenses in order to hide violations and deficient driving records. As a result of the enactment, the Commercial Driver’s License Information System (CDLIS) came into being. This system serves as a clearinghouse for CMV driver’s license status and conviction information. Moving forward, FCMSA hopes to expand, strengthen and improve the CDLIS, its operations and the data found therein.
FMCSA forbids the use of alcohol while driving, driving with a 0.04% blood alcohol concentration, drinking alcohol within four hours prior to driving, and refusing a blood alcohol test. In addition, alcohol testing is mandated post-crash, upon reasonable suspicion, on a random basis, and prior to a return-to-duty following a suspension for a violation of the alcohol conduct standards. The return-to-duty tests continue for at least 12 months and can last for as long as 60 months. The random testing regulations require employers to test at least 10 percent of their drivers every year, at times reasonably spread throughout the year.
An employee (driver) who violates the alcohol conduct policies must immediately be removed from safety-sensitive duties. The employee must then be evaluated by a substance abuse professional and comply with the recommendations of that professional prior to being eligible for a return-to-duty. FMCSA imposes no obligation upon employers to provide rehabilitation or treatment to the driver, or to reinstate the driver. Public safety is primary. Thus, one violation could possibly end a career. Notably, the alcohol rules apply to foreign motor carriers when their drivers operate within the United States.
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FMCSA rules on drug testing are the same as those for alcohol. Pre-employment drug testing is mandated, as is post-crash, reasonable suspicion, random, return-to-duty and follow-up testing. Like alcohol testing, the results of the testing are kept confidential at the discretion of the subject tested. However, the results are discoverable in a criminal investigation upon a proper application to a court.
Obviously, FMCSA relies heavily upon the motor carrier operating companies to enforce driver licensing, competency, fitness, and drug/alcohol testing regulations. In this way the company can be seen as the partner or agent of the government in promoting and ensuring public safety. But the company is also a direct subject of government regulation itself.
The Motor Carrier Company
Motor carrier companies do not execute the FCMSA’s protocols out of the goodness of their hearts. However, as the FCMSA points out “safety is good business.” The average cost of a large truck crash costs $91,000. A crash involving injury costs almost $200,000, and the cost of a fatal crash is $3.6 million. Safety isn’t just the rule. It makes good business sense.
Motor carrier companies must enforce the FMCSA driver supervision scheme or suffer the consequences. Earlier this year, FMCSA conducted Operation Safe Student. Aimed at improving the safety of passenger carriers transporting students on fieldtrips, this intergovernmental strike force covered all 50 states and resulted in over 665 bus companies being contacted for comprehensive compliance reviews. In addition, over 8,700 roadside inspections of buses were performed. As a result of these inspections, over 650 buses and 250 drivers were placed “out-of-service” for failure to comply with regulations. One company in Delaware was fined over $83,000 for failure to conduct random drug and alcohol testing, failure to carry federal minimum levels of insurance, failure to properly inspect vehicles, and employing a driver who tested positive for controlled substances. The financial impact to these companies is not just the fines themselves, but in the downtime costs associated with vehicles and drivers being taken out-of-service. Additionally, a repeated pattern of failure can subject a company to additional civil and criminal penalties. Safety is not only the rule. It also makes good economic sense.
Your Role as the Prosecutor
During your career as a prosecutor it is quite likely that you may come across a motor carrier case. It may seem as innocuous as an HOS or inspection ticket, but you need to understand that you play an important role in the regulation of motor carriers and the safety of all of us out on the roads. You should analogize the role of the driver and motor carrier company to that of a pilot and airline company. The potential for large scale disaster is just as real. Few prosecutors would give a break to a pilot flying an aircraft that was unsafe or operating it while unfit. The same should hold true for motor carrier drivers and companies. Don’t give them a break.
When presented with a motor carrier case, you should make sure to obtain the records of the driver and company from CDLIS and other available databases. You should compare your local and state ordinances and find the corresponding federal regulatory provisions to use as reference. When the disposition of the case occurs, you should make sure that the actual ordinance violations and the corresponding federal provisions are properly reported to the appropriate state regulatory entity and FMCSA. If the driver holds an out-of-state license, then you should make sure that the home state receives notice of the disposition. And, when the defense pleads with you to reduce the severity of the violations or agree to the grant of a “conditional” license (they don’t exist, by the way) because of the economic hardship that will be visited upon the offender, please remember – the rules on the books are there for the public safety. Don’t give ‘em a break. Lax enforcement equals lax public safety.
Editor’s Note: Daniel M. Fox is a Traffic Safety Resource Prosecutor with the California District Attorneys Association and the San Diego County District Attorney’s Office.
