201 E. Kennedy Boulevard
Suite 950, Fifth Third Bank
Tampa, Florida 33602Phone
- posted: Feb. 14, 2014
As of January 11, 2014, the Department of Motor Vehicles implemented a new rule change regarding commercial truck drivers. If a ticket is issued to someone who holds a commercial license (CDL), the DMV is not allowing for a withhold of adjudication (points removed) from the driving record for that ticket.
We have been fighting this new rule change, and encourage anyone who holds a CDL or who knows someone who holds a CDL to contact their lobbyist for the trucking department to help us fight this new change. Below is a Memo we wrote in response to the DMV's Memo regarding the new law change.
DMV RESPONSIVE MEMO (copied below)
MEMORANDUM IN RESPONSE TO DMV MEMO; SUPPORTING THE
WITHHOLDING OF ADJUDICATION FOR COMMERCIAL DRIVERS
Based on Chief of Division of Motorist Services, Maureen Johnson’s, January 8, 2014 memorandum of “Changes to CDL Adjudication Withheld Validation Processes”, the Defendant and undersigned in furtherance thereof would submit the following:
That the Florida DHSMV, through Mrs. Johnson’s memorandum, refers to Federal Regulation 49 C.F.R. Part 384.226, 49 C.F.R. Part 383.5, and Florida Statute 322.01 for support that the withholding of adjudication for commercial drivers is not permissible under this regulation.
1. Federal Regulation 49 C.F.R. Part 384.226 reads in part:
“The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CDL driver’s conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (except a parking violation) from appearing on the CDLIS driver record, whether the driver was convicted for an offense committed in the State where the driver is license or another State.”
This regulation does not state what it means to “mask” and is therefore vague. Congress’s intent to write this statute stemmed from its concern that commercial drivers had a practice of obtaining multiple driver’s licenses from various states (which is no longer possible) and that their convictions for traffic infractions were hidden from each state’s driving record. However, a withhold of adjudication does in fact appear on a State of Florida driving record and therefore the infraction is not hidden.
What is clear, is Florida Statute 318.14(11) which specifically states “if adjudication is withheld for any person charged or cited under this section, such action is not a conviction.” Chapter 318 is the “Florida Uniform Disposition of Traffic Infraction Act.” Thus, the Florida Legislature does not consider Federal Regulation 49 C.F.R. Part 384.226 to mean that a withhold of adjudication on a commercial driver’s driving record is considered “masking.”
Despite the fact that 49 CFR §384.226 apparently took effect on September 30, 2005, it has been codified in several states recently (Missouri, Nebraska, Kansas, Minnesota, and Tennessee, etc.), but Florida has no provision adopting this federal regulation in its statutes.
Florida Statutes, section 316.302, Commercial Motor Vehicles, specifically incorporates relevant portions of the Code of Federal Regulations into the Florida Statutes while excluding 49 C.F.R. 384, stating that “[a]ll owners and drivers of commercial motor vehicles that are operated on the public highways of this state while engaged in interstate commerce are subject to the rules and regulations contained in 49 C.F.R. parts 382, 385, and 390-397.” Fla. Stats. 316.302. Part 384 is specifically not included.
States and Federal agencies outside of Florida have made great efforts to define what is and what is not “masking”. The State of Missouri has a “Frequently Asked Questions” section in their Department of Revenue website which states,
“Situation #5: CDL holder operating a non‑commercial vehicle and is issued a traffic citation for "Failure to Yield Right of Way". Prosecutor files charges for "Failure to Yield Right of Way". Court convicts person of "Failure to Yield Right of Way” and the conviction is posted in the driver’s record, but allows a Driver Improvement Program in lieu of having the director assess points on the Missouri driving record.
Response) FMCSA: The failure to assign "points" does not violate 49 CFR §383/384. However, if the federal regulations required the imposition of a disqualification period for the convicted offense and the court then allowed a Driver Improvement Program in lieu of having the director impose a disqualification for the prescribed period of time this would be in violation of 49 CFR §384.215/284.213/384.231 as a diversion deferral program.” (emphasis added)
Thus the State of Missouri, after its exhaustive review of the ramifications of this law, concluded that withholding the imposition of points is not a violation of the aforementioned regulation. It is evident that it would be incumbent on Florida’s Department of Highway Safety and Motor Vehicles to report all dispositions (regardless if adjudication is withheld or not) for all moving violations obtained by a CDL licensee to the Federal Government for their record keeping. A disposition that includes a Withhold of Adjudication is posted on a “Lifetime” Florida Transcript of Driver Record, and therefore, is not “masking.”
2. Federal Regulation 49 C.F.R. Part 383.5 is a definitions section.
The DHSMV Memo states that Florida Statutes adopts the 49 C.F.R. Part 383.5 definition of conviction pursuant to 322.01(11). THIS PROVISION ONLY APPLIES TO VIOLATIONS OF CHAPTER 322, if it applies at all. Under this provision, the definition of conviction includes: “a plea of guilty or nolo contendere accepted by the court”, and/or “the payment of a fine or court cost.” This definition does not mean that a Judge or Hearing Officer is barred from withholding adjudication for a commercial driver.
http://www.ecfr.gov/cgi-bin/text-idx?rgn=div8&node=49:188.8.131.52.184.108.40.206 current as of January 27, 2014.
Finally, the DHSMV is a government administration agency. The agency’s opinions are not binding over the decisions of the courts. County Judges, Hearing Officers and Circuit Court Judges are not required to follow any recommendations from the DHSMV.
Christa C. Lopez, Esq.
LAW OFFICE OF DENNIS A. LOPEZ
201 E. Kennedy Blvd. Suite 950
Tampa, FL 33602
Phone (813) 222-8989
Fax (813) 222-8934