By Senior Judge Earl G. Penrod | Indiana Judicial Outreach Liaison
Introduction
Since the arrival of the COVID-19, there has been a discussion about masking. Some advocate for a mask wearing mandate because science supports the efficacy of masks against the spread of the coronavirus, while others claim that a law mandating mask wearing is an unconstitutional infringement on individual liberties. The mask wearing controversy emerged in 2020—and will hopefully become moot in the foreseeable future. This column addresses the “no masking” government mandate enacted in 1999 that has nothing to do with public health. No masking prohibits a court from dismissing, deferring, diverting, or failing to report a conviction for a traffic violation committed in a commercial motor vehicle or by one who holds a commercial driver’s license.
Background
Federal regulation of commercial motor vehicles began in 1986 when Congress passed the Commercial Motor Vehicle Safety Act. That Act was amended in 1999 by the Motor Carrier Safety Improvement Act, which created the Federal Motor Carrier Safety Administration, to monitor and regulate what is sometimes referred to as the trucking industry. Indiana has implemented the federal regulations and requirements by statute (I.C. 9-24-6.1-2), and the burden primarily falls on state law enforcement, prosecution, and administrative personnel to properly enforce those laws and regulations. But judges and courts are not without responsibility.
Many traffic citations issued in Indiana are resolved without a court appearance or direct court involvement by way of a violation bureau or prosecutorial deferral program. As a result, some judges may leave traffic case processing in the hands of others. After all, the prosecutor’s office and clerical staff handle the traffic infraction docket effectively and efficiently, and, because the process isn’t broken, a busy judge may consider it ill-advised to get involved. However, when it comes to commercial motor vehicles and holders of a commercial driver’s license, the adjudicatory process in Indiana may not be broken, but it merits attention from judges.
No masking
49 C.F.R. Sec. 384.226 provides:
“The State must not mask, defer imposition of judgment, or allow an individual to enter a diversion program that would prevent a CLP (Commercial License Plate) or CDL (Commercial Driver’s License) 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 Commercial Driver’s License Information System (CDLIS) driver record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State.”
As noted previously, many traffic citations in Indiana are disposed of through the Prosecutor’s Deferral Program which is authorized by IC 34-28-5-1. Importantly, that statute is not applicable to offenses or violations under IC 9-24-6.1-2 by which Indiana adopted the federal regulations and requirements for CDLs and CMVs. That is, a driver holding a CDL, or a driver of a commercial motor vehicle, is not permitted to participate in the Prosecutor’s Deferral Program.
Fortunately, most prosecutor’s offices in Indiana do not allow CDL/CMV citations to be handled through a prosecutor’s deferral program. However, the prohibition against masking extends to many other contexts and applies systemwide. For example, if an individual appears in court and explains that a conviction on the charge will cause the loss of a CDL, resulting in the inability to provide for their spouse and/or dependents, it is improper for either the prosecutor or the judge to extend mercy by holding the citation for later disposition/dismissal, with or without conditions.
Masking sometimes occurs because prosecutors and judges misunderstand how the term conviction is defined for CDL/CMV purposes. There are numerous case disposition methods in the criminal system that occur without the entry of a conviction to a charge as filed. A conviction for CDL/CMV purposes includes an unvacated adjudication of guilt but it also includes those instances in which there has not been a formal guilty plea or guilty finding at trial, IF the case is deferred, diverted, delayed, and dismissed.
Prosecutor’s discretion and due process
The masking prohibition is not designed to curtail the prosecutor’s discretion or to prohibit legitimate plea bargaining when the law and facts permit. Not every CDL/CMV citation issued is supported by sufficient evidence, and a prosecutor may determine to dismiss a citation or allow a plea to another offense, based on the evidence and circumstances of the case. However, it is contrary to the intent of the anti-masking provisions in the MCSIA for CDL/CMV violations to be dismissed or amended to a less serious charge simply to avoid the ramifications of the federal regulations.
CDL/CMV laws do not mean that every person cited or charged is guilty. Holders of a CDL and operators of commercial motor vehicles do not waive all due process rights, but the process afforded to CDL holders and CMV operators is not the same as for other drivers. Driving is a privilege, and those who choose to operate any vehicle on the public roadway are bound by various regulations and laws. And because of the dangers inherent in the operation of large trucks, buses, and other commercial vehicles, those who wish to obtain a CDL and operate those vehicles are obligated to comply with several additional requirements imposed in the name of public safety.
Caselaw
CDL/CMV requirements are determined at the time of the citation or charge and are not limited to when the CDL holder is operating a commercial motor vehicle. If the driver has a CDL on the date of the charge, the no masking limitation is applicable—even if the driver is operating a personal vehicle.
The federal mandates cannot be avoided by the driver surrendering the CDL after the citation or charge. In the case of State v. Hargrave, 51 N.E.3d 255 (Ind. Ct. App. 2016), Nicholas Hargrave, who possessed a CDL, was charged with operating a vehicle while intoxicated in his private vehicle. Following the charge, Hargrave surrendered his CDL and subsequently pleaded guilty. The court withheld judgement and ordered Hargrave to complete a diversion program after which the charge would be dismissed. The Court of Appeals found that the trial court erred in deferring judgment because Hargrave held a CDL at the time of the offense, noting, “allowing Hargrave to surrender his license, avoid his conviction, and possibly return to driving professionally with no record of the offense is precisely what the anti-masking law is designed to prevent.”
Summary
The FMCSA strives to make the highways safer by reducing crashes, injuries, and fatalities involving large trucks and buses by ensuring that only qualified drivers receive and retain a CDL. To further that mission, the Commercial Driver’s License Information System assists states in maintaining a, “one license, one record,” approach for CDL holders, and the entire regulatory scheme underscores the importance of complete and accurate records.
Judges, prosecutors, and other stakeholders should not need a financial incentive to comply with the law, but it is pointed out in the Hargrave case that a state in violation of the CDL/CMV regulations faces a loss of federal highway funds. While awareness of the regulations, including the anti-masking provision is increasing, the FMCSA audit of state activity shows that Indiana still has some room for improvement.
Further information
Judges may obtain more information about CDL/CMV issues from the National Judicial College’s CDL Resource Center and are encouraged to contact Bryan Walker for information about NJC’s numerous education programs. Prosecutors may contact the Traffic Safety Resource Prosecutors and consult the National District Attorneys Association’s Traffic Law Center website for training opportunities.
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