Georgia Injury Lawyers Blog

CMV Hours of Service: Observations & Case Law

February 8, 2016 | by Slappey & Sadd, LLC

Observations And Hours Of CMV Service

Starting with the premise that all drivers are subject to the HOS regulations, there are some significant exceptions, particularly as to local drivers and drivers who encounter unforeseen adverse conditions. There are other exemptions, many of a technical nature, that come into play on a fairly rare basis, but nevertheless may be encountered. When involved in a claim with a local driver, be mindful that this exception pertains to recordkeeping only. The driver is still prohibited from driving over eleven hours following ten hours off duty. The driver must have at least ten hours off duty after being on duty for fourteen hours. Similar rules apply to drivers of passenger vehicles, with slightly different time periods in line with HOS rules pertaining to those drivers. Note that an unexpected delay in loading or unloading does not qualify a driver for an “adverse condition” or “emergency” extension of driving time, and instead is considered “on-duty, not driving” for purposes of calculating the time he may drive.

Pertinent Case Law

CMV Law: HOS Rules & Exceptions

February 4, 2016 | by Slappey & Sadd, LLC

Application and Exceptions: Overview

Unless a specific exception applies, the HOS rules found in Part 395 apply to all motor carriers and drivers. There are over twenty possible exceptions. Most, but not all, of those exceptions will preempt any contrary or conflicting state law or regulation governing the safe operation of CMVs.Regulation specifying that the exceptions applicable to CMVs involved in ground water well drilling operations and the transportation of construction materials and equipment will not preempt state law.

Application of HOS Rules & Exceptions

CDL Driver: Reasons & Exceptions Of Hours Of Service

February 1, 2016 | by Slappey & Sadd, LLC

Reasons For Hours of Service

The Regulations concerning how long a driver may operate a CMV without a break, how often his time limitations re-set, and how various activities such as waiting on a load are counted are some of the most litigated topics in trucking cases. The goal of these “hours of service” rules is to prevent fatigue, as numerous studies have demonstrated the danger posed by fatigued CMV drivers. These rules have undergone changes over the past few years, with new limits imposed. A concurrent area of inquiry concerns the proper logging and verification of the hours a driver spends behind the wheel. On occasion, drivers have been known to falsely prepare logs that purport to show compliance with the Regulations even though they do not truly represent the time spent on the road. A motor carrier cannot turn a blind eye to this situation, much less encourage it. Ferreting out the truth about driving time and the efforts made to monitor compliance can be critical in determining why an incident occurred.

Regulations And Exceptions For HOS

CDL Testing and Licensing Procedures: Case Law

January 29, 2016 | by Slappey & Sadd, LLC

CDL Testing and Licensing Procedures: Observations

While one would assume it would be to deal with a driver who professes complete ignorance of the knowledge or skills that he was required to be tested on, it does happen. In that event, it is important to be able to use the requirements found in the regulations to reveal that the driver had to have this knowledge in order to obtain a CDL. Many cases squarely involve issues with space management, vehicle inspection, or the effects of fatigue. The regulations state a driver must have knowledge of these areas, and therefore a driver’s lack of knowledge of these requirements may provide an opportunity for impeachment.

Often an attorney making a claim against a driver will only consider whether or not he possessed a valid CDL. However, counsel should be mindful that there may be important differences in the type of CDL possessed, such as whether it is for “interstate” or “intrastate” use. The federal requirements for medical testing at part 391 only apply to “non-excepted” interstate drivers. A “non-excepted” interstate driver is someone who does not fit into the regulatory exceptions cited in the next footnote. Because the exceptions are fairly narrow, most drivers are “non-excepted.” Beginning January 30, 2012, an “excepted interstate” driver is not required to comply with part 391, including the requirement of a medical examiner’s certificate, and arguably is not required to comply with State driver qualification requirements either. An “excepted interstate” driver is one engaged exclusively in transportation or operations excepted:

CDL Testing and Licensing Procedures

January 27, 2016 | by Slappey & Sadd, LLC

CDL Testing and Licensing Procedures: Overview

The testing and licensing regulations of part 383 contain detailed procedures for anyone wishing to possess a CDL. As an initial note, those regulations were recently revised by the FMCSA, and substantially so. See 76 FR 26854 -26893 (May 9, 2011). The new part 383 establishes “new minimum federal standards for States to issue a commercial learner’s permit (CLP)” and requires CLP holders “to meet virtually the same requirements as those for a CDL holder, meaning that a driver holding a CLP will be subject to the same driver disqualification penalties that apply to a CDL holder.” 76 FR at 26854. The revised regulations were drafted to allow States to gradually implement the new procedural requirements that a driver applicant must fulfill. This is shown by the fact that they impose different requirements for CLPs issued before or after July 8, 2014, as well as for CDLs issued before or after January 30, 2012. The stated goal of the FMCSA in promulgating the new part 383 was to “enhance safety by ensuring that only qualified drivers are allowed to operate commercial motor vehicles on our nation’s highways.”

While in the typical case the rightful possession of a CDL is undisputed, it is nevertheless worthwhile to know what a driver must accomplish to obtain the license. Generally, a driver engaged in intrastate-only operation may be able to qualify for a CDL without meeting the driver qualification requirements of part 391, in particular the requirement of a physical exam and medical examiner’s certificate. Such drivers are subject to the specific driver qualification requirements of their respective states. Prior to the recent revision of part 383, a considerable amount of discretion was left to the States regarding the topics that could be covered within their respective versions of the knowledge and skills testing required to obtain a CDL. However, the new part 383 now mandates that States must include specific types of items as part of their knowledge and skills tests. A review of these items may be worthwhile in the right type of case, and, in any event, it is helpful for counsel to be generally familiar with the procedures that a driver must undergo to obtain a CDL.

CDL Driver Disqualifications: Observations

January 25, 2016 | by Slappey & Sadd, LLC

CDL Driver Disqualifications: Observations

First and foremost, the USDOT interpretations state that a motor carrier cannot unilaterally place a driver out-of-service for serious traffic convictions. In its guidance on the driver disqualification requirements, the USDOT specifies that a motor carrier must pull a driver off the road once it “knows, or should have known” of a driver’s conviction for any of the disqualifying offenses set out. It would seem difficult to reconcile that interpretation with the guidance found in the requirements, which specifically states that the motor carrier’s only obligation is “to refrain from using the driver begins when it learns of the disqualification action,” by the State or FHWA. However, the devil is in the details; the “disqualifying offenses” under the requirements are not the same as the “serious traffic violations”. They are arguably incomparable in terms of the nature and degree of the conduct at issue, i.e., the disqualifying offense of DUI while driving a CMV vs. the serious traffic violation of following too closely (which could have occurred while driving either a CMV or personal vehicle). There is thus at least an implied recognition by the USDOT that a driver can be convicted of two of the serious traffic convictions listed, yet nevertheless capable of saving his CDL (and, at times, his job). In those situations, the motor carrier can wait for the State or FHWA to take action before it is required to do anything. However, a conviction for one of the disqualifying offenses carries with it the penalty of automatic disqualification. Thus, because no official action is needed to effectuate a disqualification, the motor carrier cannot wait and instead must pull the driver off the road as soon as it knew or should have known of the conviction for the disqualifying offense. It is also worth nothing that both regulations refer to the “authority” to disqualify a driver from CMV operation as resting solely with the State or the FHWA, but never with the motor carrier. In other words, the motor carrier’s only province is whether the driver may drive the motor carrier’s own CMVs, while the State or FHWA controls whether the driver is disqualified from operating a CMV for anyone under any circumstances. The regulations also draw a line between what the motor carrier must do versus what it can choose to do. For example, the regulations prescribes the motor carrier’s “minimum responsibility” without affecting its “latitude” to fire, suspend, or transfer its driver. Of course, regardless of whether the motor carrier must act or not, it permits an unsafe driver (as shown by his convictions for any offense) at its own peril, and its choice is properly scrutinized when civil litigation results from the negligence of that driver.

Second, the disqualifying provisions should be read in conjunction with the annual review requirements. In determining whether the driver has “exhibited a disregard for the safety of the public” under the latter regulation, the motor carrier conducting the review “must give great weight to violations, such as speeding, reckless driving, and [DUI].” This list is obviously open ended. Certainly the violations are ones that the motor carrier should consider as part of its “great weight” analysis. The ultimate goal of that analysis is to “determine whether the driver meets minimum requirements for safe driving,” a decision the motor carrier must make regardless of whether the driver has been formally disqualified by the State or FHWA.

CDL Driver Disqualification

January 25, 2016 | by Slappey & Sadd, LLC

Driver Disqualification: Overview

The CDL requirements set forth certain disqualifying events for a CDL driver. While the regulations are interpreted by the USDOT to mean that only the FMCSA or the State or jurisdiction that issued a CDL may disqualify a driver, this does not mean that a motor carrier with knowledge that a driver has, for example, been cited with DUI while driving a truck is free to ignore that fact.

There are prescribed periods of disqualification for certain types of offenses, and a motor carrier who returns a driver to service after a period of disqualification arguably has a duty to monitor that driver more closely. Knowledge of the disqualifying events defined in the regulations may prompt questions for the motor carrier representative during deposition for which he has not been prepared, and counsel may wish to have him agree that the motor carrier will take a driver off the road once it learns of a serious charge, though it has not been put on notice of a formal conviction.

CDL Notification of Suspension & Convictions

January 22, 2016 | by Slappey & Sadd, LLC

Notification of Suspension and Convictions: Overview

The regulations require a CDL holder to provide detailed information about any convictions for motor vehicle law violations and any license suspension to both the state issuing the CDL and his employer. These regulations also require job applicants to disclose ten years worth of employment history that involved operating CMV when they are seeking employment with a motor carrier.

Notification of Convictions and Suspensions

Commercial Driver’s License: Observations & Case Law

January 20, 2016 | by Slappey & Sadd, LLC

Observations

Most cases involving trucks will obviously involve a CDL holder. However, knowing early on if you face an exception to the requirement of a CDL will assist you in posturing the case effectively. For example, it is certainly worth exploring whether the driver of a large RV involved in a crash is from a state that has decided to required such drivers to possess a CDL.

Because the requirement of a CDL applies to operation of a commercial motor vehicle, keep in mind the basic definition of a CMV. Generally, a CMV is any vehicle weighing 26,001 pounds or more, any vehicle designed to transport sixteen or more passengers, or any vehicle used to transport hazardous materials (as they are defined in the rule).

CMV Law: The Commercial Driver’s License

January 18, 2016 | by Slappey & Sadd, LLC

Introduction

The stated purpose behind the requirement of the CDL, as set forth in the FMCSRs, is “to help reduce or prevent truck and bus accidents, fatalities, and injuries by requiring drivers to have a single commercial motor vehicle driver’s license and by disqualifying drivers who operate commercial motor vehicles in an unsafe manner.” Thus, the CDL regulations discussed in this have been calculated to achieve that purpose. Moreover, when seeking a jury charge on a CDL-related regulation, the direct language of the purpose statement above could be helpful in making a proximate cause argument to the trial judge.

Who Must Possess a CDL and Exceptions: Overview