Legal Forethought

| April 07, 2005

In the movie Deliverance, you may recall the reckless hero whose opinion of insurance was that, “Buying insurance is like betting against yourself.”

The idea of paying for a service one might never use gets little consideration from those with little to lose. But for the professional driver who sees the sense in protecting one’s commercial driver’s license and livelihood, the idea of pre-planned legal coverage may be worth the bet. Increased enforcement by federal and state transportation departments ups the ante when it comes to protecting your livelihood.

On the other hand, you may never get a ticket. Larry Zook, who runs five Midwest states for Miller TLC, has never had a ticket despite running Ohio constantly. Zook says, “I run 59 or 60 in Ohio and I know I’ve been clocked. But I’ve never been stopped.”

Like Larry Black, a fleet driver turned owner-operator, you may decide to defend yourself in the event you are less lucky than Zook. “I got on the Internet and found a website that told me how to defend a case like mine and I did. The case was dismissed,” Black says. But instances of successful self-defense are likely to become even more rare as the legal climate tightens around CDL regulations.

By most accounts the number of fines and tickets handed out to professional drivers has increased dramatically in the past 15 years. And some states have increased the penalties for traffic violations. In California, for example, “doing 70 miles per hour in a 55-mile-per-hour zone has been a criminal offense for the last four years,” says Ed Morgan, an independent sales representative for Pre-Paid Legal of Ada, Okla.

The Motor Carrier Safety Improvement Act of 1999 mandated improvements in the commercial drivers’ license. In response, the FMCSA has revised the Commercial Drivers’ License Program “to enhance the safety of commercial motor vehicle operations on our nation’s highways by insuring that only safe drivers operate commercial motor vehicles.” This means that states will have to implement these improvements within three years of Oct. 1, 2002, or lose federal highway funds.

States that now allow tickets to be excised when the driver attends a driving school will no longer do so under the new ruling. In addition, the number of violations considered serious has risen from five to eight. To the original five serious violations – speeding more than 15 mph over the limit, following too closely, erratic lane change, reckless driving and driving behavior resulting in a fatality – have been added three others: driving a commercial vehicle without having a CDL, driving a commercial vehicle without having a CDL in one’s possession and driving a commercial vehicle without having the proper endorsement.

Today, violations in a personal vehicle may have an impact on your CDL. “Violations occurring in any vehicle will show up on a driver’s commercial license,” says Robert Readmond at MCSIA. “Serious violations, including drug and alcohol violations, will show up as disqualifying offenses if the state considers them disqualifying offenses in a car.”

Safe driving is not always enough. “The system is not set up to distinguish the innocent from the guilty,” says Morgan. “It is set up to create revenue.” Some states allow drivers’ records to be accessed by insurance companies. Even tickets that have been dismissed are part of this record. The new federal regulations prohibit “masking,” the hiding of tickets, in any way.

While the number of fines and tickets has increased in the past 15 years, drivers have lost some of their methods of defense. Plea-bargaining is a common tool of lawyers defending drivers. Morgan says this tool remains intact and will continue to be used to have some moving violations bargained down to non-moving violations.

But other defenses, such as deferred judgment, are unlikely to find favor with the courts, Morgan says. Deferred judgment means that a driver pleads guilty and judgment is deferred for a specified amount of time, usually six months. If the driver gets no tickets in that period, his prior ticket is expunged from the record.

The loss of legal tools like deferred judgment means drivers have even greater need for legal representation in court. Self-defense was never a very good option, despite Larry Black’s success, and in the developing legal climate, representation by a lawyer who knows the trucking industry as well as the ins and outs of the jurisdiction trying a case is absolutely necessary. At the very least a lawyer can keep a driver from having to return to court on continuances if, for example, the arresting officer does not appear. This keeps a driver from having to take off from work, at his own expense, to appear more than once.

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