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.

The driver who acknowledges the need for a lawyer is faced with the daunting task of finding one with industry and jurisdictional knowledge. In truckstop kiosks and industry trade magazines an array of services called ticketed defense, legal services or pre-paid plans have sprung up since the 1980s. The level of service varies depending on the organization a driver chooses. Like medical plans, legal plans vary and can present a confusing thicket of coverage.

One important information resource is the Internet. Websites like www.lawyers.com let drivers search for attorneys by municipality and specialty. “The lawyers.com website can help drivers find attorneys and evaluate their credentials based upon what attorneys are listed in their municipalities,” says Daryn Teague, public relations consultant for Martindale and Hubbell, the company providing the information database of lawyers for www.lawyers.com.

Some attorneys also have personal home pages where you can find out more information about them. But this preliminary research should be followed up by a one-on-one discussion with the attorney. “Most attorneys give a free initial consultation,” Teague says.

The National Traffic Attorney Network’s website, www.NTAN.org, gives out the names of attorneys in municipalities across the country, says manager Bob Miller. NTAN receives a fee from attorneys to list their names in its catalog. There is no fee to the driver for this service.

“All of our lawyers are trial lawyers,” Miller says. “They all spend a lot of time in traffic court but are able to handle cases from tickets and DOT violations through illegal search and seizures all the way to fatalities.” Miller says drivers are responsible for negotiating fees with the lawyer they choose and for court costs and related fees. It is illegal for a legal service or insurance to pay a client’s fines and court costs, according to Morgan at Pre-Paid Legal.

Ticket Defense Services’ office manager Beth Reed says its service also finds lawyers in the municipality where a driver’s offense occurred. They add a flat fee payable by the driver on top of the referral fee paid to the lawyer. Their attorneys handle a full range of cases.

American Truckers’ Legal Services is a pay-in-advance service. For a monthly fee, drivers have access to attorneys across the country. Owner Millard Dean says ATLS uses attorneys who understand the trucking industry. “We have attorneys for every county in the country unless the court deals directly with us,” Dean says. “If a driver uses our services we charge for eight months, but any other ticket he gets in that eight months is included in the fee.”

Dean qualifies the pay-in-advance designation this way: “Some drivers pay a monthly fee. This fee covers only tickets and DOT violations. Sometimes we will ask a driver for more money if he has not paid enough in monthly fees. For more serious offenses, we work with the driver and the attorney to have the attorney’s fees reduced.”

Pre-Paid Legal began service to truckers in 1986. Since then other organizations called pre-paid legal have spun off from the original. The original service uses a hyphen between Pre and Paid to distinguish itself. Pre-Paid pays its lawyers retainers to ensure they provide a high level of service to clients. Like other legal services, Pre-Paid has attorneys across the country. But, Morgan says, “We evaluate every local attorney every month. We use local attorneys well versed in traffic law who win cases.” As examples, Morgan cited two recent cases, one in California in which a $16,000 overweight fine was reduced to $2,500 and another in New York in which a $6,000 fine was reduced to $2,100.

Pre-Paid offers full payment of attorney’s fees for serious charges like manslaughter and negligent homicide. “We have paid $74,000 in attorney’s fees in a fatality defense,” Morgan says. “Pre-Paid will pay 100 percent of attorney’s fees if there are no other criminal charges involved.”

Whatever the smart driver decides, he will do well to remember Ed Morgan’s advice: “Drivers must realize that having a legal service is not a license to drive unsafely. We do not condone unsafe driving. And the legal climate is much stricter than it was 15 years ago. There is less any lawyer can do nowadays. But that is all the more reason to have good legal representation.”


Cover Your Main Asset

1.Possessing a CDL is a privilege, not a right. It can be taken away from you. Don’t take for granted that you will always have it – consider ways to protect it.

2.Driving safely is your best protection against tickets and violations. In many cases you cannot protect yourself adequately without competent legal representation. If you need a lawyer you need one who knows your business – trucking. Do your research beforehand.

3.Know the terms of your employment or lease/contract. An employer may not be required to help you in some cases. Know the situation before you drive so you won’t be surprised.

4.When choosing a lawyer, ask how long he has been practicing in that jurisdiction and how many cases like yours (ask for details) he has successfully defended there.

5.Don’t try to defend yourself. There may be exceptions to this rule, but there aren’t many.

6.Always carry your CDL. It is now a serious violation to drive without it .

7.Do not accept loads for which you do not have the proper endorsement. Doing so now also constitutes a serious violation.

8.Keep your log current. Being involved in an accident while out of hours will make matters much worse.

9.Remember the eight violations considered serious, especially erratic lane change, 15 miles per hour over the speed limit and following too closely. They are common driving behaviors that can get you in serious trouble.

10.Be aware that some states are less truck-friendly than others. For example, doing 70 mph in a 55-mph zone in California is a criminal offense. Familiarize yourself with the traffic laws in the states you’ll be traveling.

Comments are closed.

OverdriveOnline.com strives to maintain an open forum for reader opinions. Click here to read our comment policy.