Judge Overturns Shutdown Order, Registry Takes Effect, Roadcheck Scheduled

Beginning May 21st only medical examiners listed on the national registry can perform driver physicals. Drivers must still carry their certification and are also responsible for supplying their state department of motor vehicles with a copy. To find a certified medical examiner, visit the National Registry website and search by Zip Code, State, or examiner name.

This year’s CVSA Roadcheck runs from June 3 – 5. Past Roadcheck events have seen 10,000 inspectors performing an average of 1,000 inspections per hour at 2,500 locations. Last year nearly 50% of the out–of–service violations were caused by brake adjustment or other brake system violations.

Earlier this year there was a fatal crash on the Regan Memorial Tollway (I-88) in Illinois. An owner operator for DND International was in the final hours of a round trip to Omaha and was driving east following another truck. When that truck changed lanes the DND driver saw two emergency vehicles stopped in his lane assisting a disabled tractor trailer. The resulting crash killed an Illinois Tollway worker and seriously injured a state trooper. A post accident investigation revealed that the driver, Renato Velasquez, had been on duty in excess of 26 hours during which time he had no more that 5 1/2 hours off duty. The investigation also revealed that Velasquez falsified his records of duty status on four out of the seven days immediately leading up to the day of the crash.

FMCSA expanded the scope of the hours of service investigation to include additional records for driver Velasquez and six other DND drivers. When their logs were compared to toll receipts it was found that 25% of the logs were falsified. As a result of the investigation FMCSA issued an order that DND immediately cease all commercial motor vehicle operations.

The trucking company challenged FMCSA’s shut down order and as a result federal Administrative Law Judge Richard Goodwin ruled against FMCSA and restored DND’s authority to operate thus allowing them to put trucks back on the road.

The judge ruled that FMCSA denied DND due process by failing to complete an administrative review within 10 days of issuing the Out–of–Service order. Although that failure was enough to overturn FMCSA’s order, the judge went on to say that FMCSA was also wrong on the merits of the case. In part the decision was based on:

• Specific allegations in the Out–of–Service order were not supported by evidence presented at the hearing.

• FMCSA Field Administrator Darvin Jones contradicted allegations in the Out–of–Service order during his testimony. The judge also felt that his answers were at times evasive.

• The judge considered the toll records obtained by FMCSA that were used in the log audit to be hearsay evidence obtained from a source not available for inquiry at the hearing. As a result the judge gave them limited weight.

• The allegation that DND International does not have adequate safety management practices in place to ensure its drivers are preparing and submitting accurate records of duty status and that they comply with the hours of service driving limitations, is unsupported by the totality of the evidence and testimony in this case.

FMCSA’s decision to place DND Out–of–Service was based largely on the results of their audit of seven drivers, 15% of drivers contracted to DND. The judge found that “there is no testimony and/or evidence to support the use, accuracy and/or reliability of that methodology to extrapolate the behavior of seven (7) drivers onto the behavior of 42 other drivers.” During testimony regarding the audit it was revealed that 54 falsified logs were found but there were only six containing hours of service violations.

FMCSA has stated that they’ll appeal the judge’s decision but it remains to be seen what effect this will have on future decisions to place a motor carrier out of service.

Help your drivers keep a sense of perspective by reinforcing how little time is lost by observing slower construction zone speed limits.