Mastering Masking: Why and How to Avoid Masking CDL-Holder Convictions.

• Author: Earleywine, Elizabeth
• Position: Commercial driver's license

INTRODUCTION

Congress has charged the U.S. Department of Transportation (DOT) with regulating commercial motor vehicles (CMV) to promote the public interest in their safe operation, and to encourage economical, efficient, and fair transportation. (1) The Federal Motor Carrier Safety Administration (FMCSA) is the operating administration within the DOT charged with ensuring "the highest degree of safety in motor carrier transportation." (2) Congress has instructed FMCSA "to improve motor carrier, commercial motor vehicle, and driver safety" in part by "developing and enforcing effective, compatible, and cost-beneficial motor carrier, commercial motor vehicle, and driver safety regulations and practices." (3) To further this goal and its mission to reduce crashes, injuries and fatalities involving large trucks and buses, FMCSA has promulgated (and updates) the Federal Motor Carrier Safety Regulations (FMCSRs). (4)

Driving is a privilege, not a right. It is a privilege granted upon meeting certain qualifications, such as passing a test, and can be taken away for many reasons. A commercial driver's license (CDL) is not a standard driver's license. Driving a CMV (5) requires advanced skills and knowledge above those required to drive a car or other lightweight vehicle. To be granted a CDL and authorized to drive a CMV in interstate commerce, an applicant must meet additional specific requirements that do not apply to holders of non-commercial licenses. (6) As such, a CDL holder may be considered a professional driver. A CDL indicates that the individual has a unique privilege to operate a motor vehicle that is larger, longer, and capable of carrying heavier loads. (7) If the driver possesses further qualifications, he/she may have privileges to transport hazardous materials or drive a vehicle that holds large numbers of passengers. (8)

Not only is a person required to meet certain conditions in order to earn the privilege to drive a CMV, he/she must comply with special laws and regulations in order to retain the privilege. These conditions are more stringent than those placed on a person with a standard driver's license. For example, a CDL holder may not consume any alcoholic beverages within 4 hours of driving or having physical control of a CMV. (9) A CDL holder who operates in interstate commerce is also required to maintain physical qualification standards, (10) which, generally, the CDL holder must renew every two years. (11)

These higher standards reflect the nature of the inherent risk in operating a CMV. The fact is that CMVs are disproportionately involved in motor vehicle crashes and fatalities. Large trucks and buses represent 9.6% of all vehicle miles traveled in 2016, but accounted for 12% of all traffic fatalities. (12) In those crashes, the occupants of a car, pedestrians, bicyclists or motorcyclists accounted for more than 80% of the fatalities. (13)

This article focuses on the role of the courts in advancing FMCSA's safety mission. Promoting safe driving behavior starts on the roadside through a states enforcement of its traffic laws. The process continues in the courts, by holding the driver accountable for unsafe driving behavior. First, this article will provide a brief overview of how modern-day CDL safety measures came about, then it will discuss the prohibition against masking and define key terms. Lastly, the article will describe the ways in which masking can occur and some ways the court might act in conflict with the masking prohibition.

HISTORY OF CDL REQUIREMENTS

Prior to 1986, when Congress enacted the Commercial Motor Vehicle Safety Act (CMVSA), (14) regulation of CMV drivers was largely left to the states, resulting in piecemeal commercial driver qualifications and requirements. Some states did not require special licenses to operate 26,000 pound plus, articulated vehicles. Drivers could obtain licenses in multiple states and states did not communicate driver records with other states. The goal of the CMVSA was to improve highway safety by ensuring that drivers of large trucks and buses are qualified to operate those vehicles and to remove unsafe and unqualified drivers from the highways. In 1985, the year before Congress enacted the CMVSA, large trucks and buses were involved in just under.30 fatal crashes for every 100 million vehicle miles traveled. (15) By 2017, however, they were involved in.14 fatal crashes for every 100 million vehicle miles traveled. (16)

The CMVSA established the CDL Program with minimum standards for commercial drivers, (17) introduced the one driver/one license/one record concept, and mandated creation of the Commercial Driver's License Information System (CDLIS) to "...serve as a clearinghouse and depository of information about the licensing, identification, and disqualification of operators of commercial motor vehicles." (18) The CMVSA also required states to ensure that drivers convicted of certain traffic violations be prohibited from operating a CMV. (19) Congress determined that increased highway safety could be achieved by holding CMV drivers accountable for their driving behavior. A significant step toward that accountability was the CMVSA's prohibition on CMV operators from possessing more than one drivers license. (20)

In 1987, the Federal Highway Safety Administration (FHWA) (21) amended the FMCSRs to implement the requirements of the CMVSA and establish national CDL standards that states were responsible for enforcing. (22) As part of this rulemaking, FHWA defined the term "conviction" as "the final judgment on a verdict [or] finding of guilty, a plea of guilty, or a forfeiture of bond or collateral upon a charge of a disqualifying offense, as a result of proceedings upon any violation...