Road Law – December 2022/January 2023

Some of our recent articles have centered around the term “masking” and the ways that different jurisdictions have been interpreting or applying the prohibition on masking convictions found in Title 49 CFR 384.226. Masking refers to the practice of preventing a conviction from showing up on a commercial motor vehicle driver’s record.

While you may have grown tired of the topic, as we have, the continued misapplication and interpretation boggles our minds. Here are a few of our latest interactions with court officials.

Lawyer 1: My client has a traffic citation for disobeying a traffic control device at a railroad crossing. A conviction would result in four points on his driver record with a mandatory 60-day CDL disqualification. Would you be opposed to an amendment to an identical four-point violation of disobeying a traffic control device without a railroad designation?

Prosecutor 1: The masking statute won’t allow me to make that agreement because it would put your client in a better position than a conviction of the original charge.

Lawyer 1: There’s no language in the statute that says an analysis needs to be conducted to determine if someone is going to benefit from an amended charge. In fact, the true intent of the statute is to prevent convictions from not being reported to a driver record. If you are worried about a benefit, then are you opposed to an amended charge of careless or reckless driving, which is more severe than what was originally charged?

Prosecutor 1: I think that amending any charge is masking and is beneficial to your client.

Lawyer 1: No. Any prosecutor can make a factually based recommendation to amend a CDL ticket … period. Any prosecutor can let a CDL ticket holder plead guilty to a factually based amended charge and let them pay the fines and costs. Making a recommendation for a factually based amended charge on a CDL ticket is not masking as long as the amended charge is reported. Also, any benefit a CDL ticket-holder gets from accepting a factually based, amended charge – i.e., fewer driver points or avoiding being suspended/disqualified – is simply not relevant and has nothing to do with masking. Remember, “masking” is the failure of a court to report a CDL ticket-holder’s conviction and has nothing to do with any benefit the CDL ticket holder may receive from a factually based amended charge.

One more thing that deserves mention. The National Association of District Attorneys actually wrote and published a “Masking Quick Reference Guide” that lets prosecutors know what they can and can’t do to help CDL ticket-holders. So, the very fact that the National Association of District Attorneys wrote and published a “Masking Quick Reference Guide” is absolute proof that amending a ticket for a CDL ticket-holder is allowed when done correctly.

Lawyer 2: My client has a speeding citation for 70 mph in a 55 mph zone. I’d like to discuss a factually based amendment to either disobeying a traffic control device or speeding 1-10 so we don’t run afoul of the anti-masking statute.

Prosecutor 2: What’s masking? I’ve never heard of it. Would you accept an amended charge of defective equipment with payment of fine and court costs?

Lawyer 2: We can discuss masking another time. Let’s get that amended plea signed by the judge before she leaves. 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.

This column is the opinion of the writers 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.