Errors on CSA and What Can be Done to Fix Them

Many drivers write to me, surprised at the lack of due process for drivers and carriers in the CSA program.  With how the law is now, when you are given a warning from the CSA, the law enforcement officer in effect becomes the judge, jury, and executioner. The officer is in control of everything from the inspection to the DataQ challenge. But he tells you not to worry because it is just a “warning.”
 
Here are common questions I receive on this issue:

• Where is the due process or taking defense when a warning is written?
• Why is there no ability to have an independent judge or jury determine if a violation occurred?
• Since it is just a “warning,” why is the penalty the same as a conviction?
• Where is the due process or taking defense when the allegation you violated is published and your record is penalized with extra points?
• How can this occur before you have the opportunity to defend yourself before an independent judge or jury? 
• Why is this information used to not hire or fire someone? 
• What makes the judgment of an officer who says you violated the law; more important than that of a jury or independent judge that requires proof you violated the law?
• And should a ‘not guilty’ verdict, a dismissal, or a change to a lower charge by a court, not carry any weight? 

And here is my answer: With the CSA it does not matter, only what the officer says matters.

On June 23^rd, 2010, CSA Administrator, the Honorable Anne S. Ferro, testified before the House Transportation Committee regarding this issue.  This hearing before congress lasted 1:47:00.  For approximately nine minutes during this hearing, Congressman Walz asked Administrator Ferro about warnings and how they affect the drivers and carriers’ Safety Measurement System (SMS) score.  The Motor Carrier Safety Measurement System (SMS) is a tool used by FMCSA and State partners to evaluate a carrier's safety performance. Walz also asked about an appeal process for DataQ, since the current system violates drivers and carriers’ US Constitutional guarantee of due process.  A Data Q Challenge is when a carrier or a driver challenges information the FMCSA has compiled and is using to determine your SMS score and whether or not an enforcement action will be started against you. Administrator Ferro acknowledged the current shortcomings of the DataQ challenges and informed Congress that FMCSA is working to resolve the appeal issue.  She also admitted that some states, Indiana for one, will dismiss the violation/citation from the DataQ upon dismissal in the court system.  (Here is the web link to that video: 
http://transportation.house.gov/hearings/hearingdetail.aspx?NewsID=883)
 
So why have they not made the changes the Administrator acknowledges are needed and would make the CSA offer the due process required by the U.S. Constitution?  The answer could be as simple as - no one has forced them to.
 
However, there could be light at the end of the tunnel. FMCSA was recently sued on this very issue. This past July, two lawsuits were filed in Federal Court in DC.  The lawsuit filed on July 19^th questioned the “guidance” FMCSA provided in May on the use of the data in CSA. The lawsuit filed on July 13^th, 2012, alleges FMCSA releases records of drivers alleged safety violations to CSA and potential employers before the driver has had an opportunity to defend him or herself in court. It even reports those where the driver was found “not guilty” or had the charge exonerated in court.
 
The legal theories of both lawsuits appear to be based upon the US Constitution 5^th Amendment’s due process and taking clauses.  Overall the due process clause guarantees the right to a fair and public trial, the right to an impartial jury, and the right to be heard in one’s own defense. So due process guarantees the right to a trial by an impartial third party with the right to appeal.  The takings clause is the famous “…be deprived of life, liberty, or property, without due process of law…”
 
The CSA appears to violate each of those 5^th amendment rights by failing to allow a carrier or driver access to an impartial 3^rd party judge or jury to determine guilt. It also violated these rights for allowing the CSA to “take” a reputation or rating from a carrier or driver before and even without an opportunity to defend him or herself.
 
When Driver’s Legal Plan defends a driver, we always do a DataQ challenge as part of our defense.  Many times I have had officers tell me that just because a jury found the driver ‘not guilty’ doesn’t mean he didn’t do it.  Not guilty does mean exactly that, the driver did not do it. The only exception is with the CSA, where it doesn’t matter.
 
So what can you, the driver, do to help protect yourself from erroneous data in CSA?  The only way I know at this point is to watch the video listed above and call your congressman and senator and tell them to enforce your rights. Tell them what the FMCSA has told congress they would do on June 23, 2010.  Find your congressman by going to http://whoismyrepresentative.com/ and put in your zip code. Take action with your congressman or senator and hopefully this issue will be resolved.