James F. Mahoney, Attorney

What Happens in Minnesota ... Doesn't Necessarily Stay There

In a roadside inspection, even drivers have a degree of privacy that state police officers must respect

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Your driver calls explaining he's been sitting at a port of entry for the last two hours as state police conduct a Level III inspection.

That seems absurd. Two hours to check credentials? Two hours of wasted drive time. Costly in more ways than one. Your customer's appointment will be missed. Your driver calls back and says he's being placed out of service for fatigue. You're stuck with the lost revenue and no recourse against this regulatory action. Your CSA score just took a hit; and so maybe did your insurance renewal pricing and your chances of bidding on a new customer.

Or are you stuck?

This police stop, though seemingly legal on its face as an exercise of oversight of the highly regulated motor carrier industry, is very likely unconstitutional.

The Fourth Amendment to the U.S. Constitution protects persons from unreasonable searches and seizures. The Federal Motor Carrier Safety Regulations, however, through state legislation intended to promote public safety, authorizes and directs law enforcement to engage in otherwise less-than-Constitutional searches that are perfectly legal.

The motor carrier industry is a highly regulated industry, as determined by the United States Supreme Court. Thus, commercial drivers and motor carriers do not have the same expectations of privacy that ordinary citizens enjoy. Trucks can be stopped for any reason, or no reason. Roadside inspections, as intrusive as they are, nonetheless are commonplace and necessary to promote safety and regulate the industry.

That being said, however, even drivers have a degree of privacy that state police officers must respect. In Minnesota's efforts to curtail fatigued driving, commercial drivers were held and interrogated without receiving Miranda warnings and were asked about such personal issues as their magazine preferences and DVD choices; their neck size, their family sleeping arrangements and other irrelevant aspects of their lives, like the use of reward cards from truck stop chains, which, of course, are not proper supporting material in a Level III inspection.

The recent decision and order of a United States District Judge in OOIDA vs. Dunaski, et al (several Minnesota State Police commanding officers) suggests that all states and their commercial vehicle inspection protocols may soon have to be re-visited to comply with the Constitution. It's a well-developed opinion and memorandum reciting the background of roadside stops, the CVSA, state funding and, most importantly, how a legitimate stop could soon devolve into an illegal search and seizure.

We can see how this decision will spread rapidly among the states and how, maybe someday in the dim future, we will have uniformity in dealing with roadside inspections.

The court suggests that all states must eventually become more uniform and fair.
Even better, it suggests a due process method of challenging violations obtained outside the bounds of a CVSA inspection, particularly Level III's; and further, if the driver or carrier disputes the violation charged, the state will have to provide a due process mechanism for the dispute to be heard and fairly evaluated under the DataQ process, which presently has all the due process of "just say No."

In the example above, the driver did successfully oppose the criminal charges of violating the HOS regulations. But while the criminal charges in Arizona were dismissed, his DataQ appeal process fell on deaf ears. And his motor carrier's CSA scores did take a hit with all the repercussions associated with higher CSA scores.

Arizona's DPS and other states' highway patrol services should be encouraged to read this decision and to implement the directives the Minnesota Court gave to the Minnesota Highway Patrol.

We know that drivers legally don't need to have more than their logs with them to prove compliance with hours of service rules. It just annoys the heck out of CVI officers when companies use electronic fuel tickets. So when a CVI officer obtains a driver's reward cards and investigates when and where the card was used, that crosses the line.

And when that intrusion manifests itself as a criminal charge, the driver's livelihood is in jeopardy and that's unconstitutional.

While this decision applies to Minnesota only, the Court's view that the HP's actions were unconstitutional will be heard by motor carriers.

The Court recommended that all states work with the CVSA and FMCSA to uniformly apply regulatory powers to motor carriers and drivers; to set up a process by which DataQ challenges are meaningful; and provide for an appeals process through the state's court system..