Some lawyers have forgotten their oath

October 2019

Jeff McConnell and James Mennella

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We take the practice of law very seriously. We’re not talking about the practice of law as some kind of ivory tower, pie-in-the-sky, idealistic concept but as the tough-grind, living, breathing, daily reality. Here at Road Law, we consider the very ability to practice law a great honor and one that we take a tremendous amount of pride in doing.

As a lawyer, there are few things more satisfying than helping a driver negotiate their way through the legal process involved in defending a traffic ticket, misdemeanor or felony case and having a great outcome at the end. What’s not so satisfying is having to constantly deal with prosecuting attorneys in municipal, county, district and superior courts who seem to have forgotten the solemn oath they took as a new lawyer to protect the law and the U.S. Constitution.

We have an epidemic of municipal and state prosecutors who, instead of complying with oath they took to protect the law, prefer to play dumb and hide behind the intentional, misinformation campaigns being waged against Class A drivers by almost all state departments of transportation.

In this column, we may step on a few prosecutor and DOT toes, but we’re setting the record straight and hopefully we will shine a little light on a dark situation. Also, if you happen to be reading this column and you’re a prosecuting attorney in this great country of ours, it’s time you wake up and smell the law. Do your duty!

  1. I got a ticket for “speeding 80/65 mph zone.” After I got my ticket, I took my truck to my mechanic and had my tractor/speedo recalibrated. When the results came back, the diagnostics said my speedometer had been off by 8 miles per hour. I went to court on my ticket and gave my diagnostic report and my shop-repair receipt to the prosecutor and asked if I could plead guilty to a lesser speeding charge, such as speeding 75/65, and pay all the fines and costs. The prosecutor said that the state had ordered him not to amend any Class A tickets because that would be “masking” a conviction. Is the prosecutor’s statement right?
  2. No, and if this is what the prosecutor told you, then he failed to protect the law. First, we agree that masking a conviction for a Class A driver ticket is unlawful. So, what’s “masking?” Masking, according to 49 CFR 384.226 – Prohibition on Masking Convictions – says:

“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 CDL driver’s record, whether the driver was convicted for an offense committed in the state where the driver is licensed or another state.”

Now, if you’re wondering how we know about and understand 49 CFR 384.226 – Prohibition on Masking Convictions, it’s because we’re lawyers, trained to locate specific laws and we took an oath to do so.

So, to all prosecutors please note:

  1. Masking is: No traffic school; no fake “probation” devices or other court scams that will allow a Class A driver to pay a ticket and not report the payment as a conviction. If a Class A driver pays a ticket, a conviction for that ticket must go on their driver record.
  2. Masking is not: offering a factually based recommendation to amend a Class A driver’s traffic ticket to a lesser included offense, allowing that Class A driver to enter his/her plea of guilty or no contest to the amended charge; having the Class A driver timely submit all relevant fine and costs to the court clerk for the amended charge; having the court clerk process the fine, costs and conviction of the amended charge; and reporting the conviction of the amended charge to the state DMV.

This process is not “masking.” This process requires the reading and understanding of current laws. This process requires prosecutors not to use the state DMV as a scapegoat to get out of their traffic calendar. This process requires prosecutors to simply do their duty under the current law. LL

Send any questions or comments regarding transportation law to: Jeff McConnell and James Mennella, Road Law, 3441 W. Memorial, Suite 4, Oklahoma City, OK 73134; call 405-242-2030, fax 888-588-8983, or contact us via RoadLaw.net.

This column is the opinion of the writer and does not necessarily reflect the opinions of Land Line Magazine or its publisher. Please remember everyone’s legal situation is different. Consult with an attorney for specific advice on your situation.