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The Masking Prohibition – CDL Drivers and Traffic Tickets

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Commercial drivers know that even minor traffic tickets can have a dramatic impact on their livelihood. This stems from the federal law that automatically revokes commercial driving privileges for certain disqualifying offenses. For instance, speeding more than 15 mph can lead to a 60 day revocation. So, for commercial drivers, receiving any traffic citation means they must be aggressive in fighting it and trying to negotiate the most favorable outcome possible.

Complicating this process is the State and Federal ‘Masking Prohibition’. According to these laws, prosecutors often – wrongfully – believe that they do not have the ability to negotiate, let alone agree to a more favorable plea bargain than simply demanding a conviction to the charge as is. But, this is an incorrect belief.

The masking prohibition stems from 49 CFR 384.226 and Minn. Stat. 171.163. Both statutes are identical for our purposes: “The State shall not mask, defer imposition of judgment for, or allow an individual to enter into a diversion program that would prevent a conviction for a violation of a state or local traffic control law, except a parking violation, from appearing on the driving record ….” The key part is that there must be a potential conviction.

This is how federal law defines conviction: “(a)ny unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person’s appearance in court, a plea of guilty or nolo contendre accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or prorated.” 49 C.F.R. 383.5. According to this definition, a ‘conviction’ includes stays of adjudication, stays of impositions, pleas of guilty, or the simple payment of a fine (i.e. a petty misdemeanor outcome). Examples of how this is applied to cases is instructive.

The State of Missouri sought clarification from the Federal Motor Carrier Safety Administration (“FMCSA”) regarding the federal masking provisions and received responses that included examples of what did and did not constitute masking. The response from the FMCSA opens with a comment that masking generally requires a judgment of guilt. Here is the link for the examples the FMCSA provided to Missouri: https://dor.mo.gov/faq/drivers/mcsia.php. As you can see, so long as there isn’t a plea, fine, or conviction, the masking prohibition does not come into play. Even the National District Attorneys Association’s quick reference guide leads to the same conclusion – there must be a plea, conviction, or fine for a potential masking issue to arise. And both sources state that there is no prohibition on plea bargaining.

This means that CDL drivers, like anyone else, should be able to plea bargain with local prosecutors. The problem is that this masking prohibition has taken a life of its own and most prosecutors operate under the assumption that they cannot do anything for our clients, even if they wanted to. This is why it is so critical to get a knowledgeable and aggressive traffic ticket attorney to fight on your behalf.

With all this being said, this is an uphill battle because of the posture most prosecutors take. If you want any chance to negotiate a better result, rather than just tempting fate at a court trial, it is imperative to find a team that knows how to combat this wrong presumption by the State.



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