The Debate over “Masking” Serious CDL Convictions
As every single CDL driver knows, without a license to drive, you can’t make money. That’s obvious, right? What every CDL driver doesn’t realize, however, is that many states issue infractions that could easily lead to you losing your license. In fact, as we have discussed in a previous blog, if you get two serious infractions in three years, you lose your license for 60 days — if you receive three serious infractions in three years, you lose it for 120 days. Serious infractions aren’t always what most would consider “serious.” For example, speeding 15 over the speed limit, following too closely, using a handheld device, reckless driving, improper lane changes (left lane violations), failing to obey a traffic control device, etc. are all examples of serious infractions.
Given there is so much at stake for CDL holders in losing their license, and given the relative ease at which you can accumulate points, it makes sense that most drivers are willing to hire attorneys to fight these tickets. That’s why it’s essential that a CDL driver hire an attorney who understands the law and knows how each different county and city court operates around the state. With that knowledge comes the ability for your attorney to fight for what you deserve without wasting time on what a prosecutor won’t or is unable to offer.
Here at Banks & Brower, we have represented drivers from all over the country – from New York City to Fargo, North Dakota, and from Ontario, Canada to the Florida Keys. With that experience, we have gained a vast understanding of the federal laws and how they affect each individual state and their respective statutes governing CDL’s. That awareness is essential because any judgment you consent to must be evaluated based on how your respective state will interpret a conviction in Indiana. We, at Banks & Brower, have that knowledge-base that you need.
Furthermore, given our vast experience in working with CDL drivers, we have run across a few county and city prosecutors that are initially unwilling to negotiate CDL-related traffic tickets. Often times, that’s because they believe they are forbidden from “masking” serious infractions as defined by the federal statutes and adopted by many states. What we have found is many times they are misguided or misinformed. That’s understandable as Indiana has yet to fully weight in on the matter — however, many other states have.
This blog is intended to provide the legal and foundational arguments that clearly allow for negotiating CDL-related traffic infractions in Indiana.
According to the Federal Motor Carrier Safety Administration, in order for masking to occur, there first must be a judgment of guilt. According to § 383.5.
Conviction means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person’s appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.
Moreover, when the state of Missouri was asking the FMCSA for examples of what would constitute masking, the FMCSA provided great examples for prosecutors to follow.
In “Situation #3” a CMV operator was issued a traffic citation for “improper lane change in a CMV.” The prosecutor determined to only file a charge for a “defective muffler.” This was the only charge filed with the court. In response, the FMCSA stated “this practice is not in violation of § 384.226 because the violation was reduced before a judgment of guilt was pronounced.” FMCSA emphasized that in order to apply § 384.226 to determine whether masking occurred, there has to be a judgment of guilt for a violation.
Therefore, so long as a judgment has not been entered on your ticket, anything is fair game in terms of the negotiating/amending charges process.
Additionally, Oklahoma’s Department of Public Safety (DPS) has explicitly notified their courts what is meant by the term masking. In a memo from the Oklahoma DPS to all Oklahoma State Courts they stated:
Therefore, any amendment of the original charging information and/or any reduction in charges in anticipation of a plea is permitted.
The National District Attorneys Association (NDAA) through the Prosecutor’s Guide to the Basics of Commercial Motor Vehicle Licensing and Violations supports the contention that there must be a judgment of guilt before masking can occur. Under the guide’s section on masking they state, “generally, masking as contemplated by § 384.226, requires adjudication, or, at least, factual finding of guilt followed by some action that intends to avoid the record or mandated consequences of conviction. The anti-masking provision does not prevent plea bargaining or dismissal of charges.”
Similar to the FMCSA, the NDAA provides masking scenarios in their guide. Each example is instructive because they take away from each is that if a conviction has not entered and/or so long as a fine has not been paid, there is no conviction. Without that conviction/judgment, any type of negotiation is fair game.
Thus, a dismissal and/or allowing a plea from a serious offense to a non-serious offense or a non-pointable offense would not offend § 384.226.
Finally, the only federal statute that addresses masking addresses the concern of diversions or deferrals — something Indiana DOES NOT ALLOW by statute. Nevertheless, under 49 CFR Section 384.226, the language is as follows:
§ 384.226 Prohibition on masking convictions.
The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CLP or CDL holder’s conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (other than parking, vehicle weight, or vehicle defect violations) from appearing on the CDLIS driver record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State.[76 FR 26895, May 9, 2011]
According to Black’s Law Dictionary:
(1) Defer, means to, “Delay; put of; remand; postpone to a future time.”
(2) Deferral, means the “Act of delaying, postponing or putting off.”
(3) Diversion program, means, “A disposition of a criminal defendant either before or after adjudication of guilt in which the court directs the defendant to participate in a work or educational program as part of a probation.”
Therefore, so long as the state doesn’t offer a diversion or a deferral as part of the process, any other plea deal is allowed.
As anyone can see, the law is very clear as to what masking is and what it isn’t. Though Indiana has yet to fully weigh in on the matter, a knowledgeable attorney can use this information to fight on your behalf — even if the prosecutor initially says no. Given that prosecutors are given vast power to negotiate the most serious of criminal cases — including charges of murder, rape, and child molest — it makes sense that they would also be able to negotiate much less serious CDL-related traffic tickets, too.
Give the attorneys at Banks & Brower a call today. Let us defend your license because we realize without truckers driving goods across this great country, there would be nothing for us to buy at our local stores or possess in our homes. The experienced litigators at Banks & Brower have an extremely high success rate in negotiating CDL-matters and defending your jobs. Let us do the same for you. Call today at (317) 870-0019 or send us an email at info@banksbrower.com.