Road Law – December 2021/January 2022
We have written about the topic of masking convictions too many times to count and spend a great majority of our day trying to educate or reeducate prosecutors and judges that they have not lost any prosecutorial or judicial discretion under the current law. Unfortunately, some bureaucrats continue to misinform, threaten and try to convince courts around the country that CDL holders are not candidates for any type of relief on their cases. To follow is one example.
Lawyer: My client has a speeding ticket in his private vehicle, but because he holds a CDL he can’t do the diversion program. He got a new speed sensor for the vehicle, and I understand the anti-masking provisions that apply to convictions, but can you amend the charge pre-conviction to some kind of nonmoving violation?
Prosecutor: You are correct that I have very limited discretion on matters, and in early 2021 the U.S. Department of Transportation and Federal Motor Carrier Safety Administration labeled Indiana a “masking” violator precisely because of the practice of amending violations. Our prior practice was based on advice that we had the prosecutorial discretion to authorize such amendments. However, this was not the case. As a side note, should Indiana continue to be labeled as a “masking violator,” the consequences could be extremely damaging, resulting in millions of federal dollars being withheld from the state’s budget for highway transportation and safety spending that would affect all Hoosiers.
Lawyer: Let’s review the legal definition of masking. The statute, 49 CFR 384.226, reads, “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 (CDL) holder’s conviction … from appearing on the (CDL holder’s) driver record.”
The plain language of the statute does not take away your prosecutorial discretion to make a factually based recommendation to amend a CDL traffic ticket as long as the amended charge is reported as a conviction to the driver’s record.
All we’re asking for in this matter is to use the post-repair receipt of the subject vehicle as a factual basis to recommend a 5 mph speed reduction, to allow the client to enter his plea of guilty to the amended charge, and have the conviction allocated to his record.
This would not be considered masking because the requested amendment is factually based – i.e., the client has provided proof that he has repaired the defective equipment on his vehicle responsible for the alleged violation, and as a result the speedometer is now reflecting an accurate speed. Second, the requested amendment would result in a conviction being submitted to the court clerk for processing, who in turn, would report the same to the Indiana Bureau of Motor Vehicles for processing to the client’s record as a conviction.
Of course, there are other, factually based and identical driver point moving violations the client would answer with his plea of guilty.
For example, disobeying a traffic control device or going too fast for conditions. The speed limit sign is a traffic control device placed on the roadway for the sole purpose to promote the safe and orderly flow of traffic in the area based on specific conditions, such as the condition of the roadway, terrain, population density, traffic density, etc.
I don’t like when bureaucrats try to bully attorneys by participating in the unauthorized practice of law when they push lies and hearsay by telling you the feds have somehow eliminated your prosecutorial discretion to make a factually based recommendation to amend a CDL ticket.
Nothing could be further from the truth. Let me know your thoughts and look forward to hearing from you. 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 them via RoadLaw.net.