ASK THE ATTORNEY: More on necessity of filing a DataQ challenge when questioning CSA scores
As you can imagine, when CSA went live we had clients who sought our help in trying to address some older items that were showing up on their SMS.
By JIM KLEPPER
The Trucker News Services
Editor’s note: This is the second of a two-part series on challenging CSA scores.
Another example of the inconsistencies in the challenge system is in the willingness of states to consider the challenges.
As you can imagine, when CSA went live we had clients who sought our help in trying to address some older items that were showing up on their SMS. In one such instance, we filed a challenge for a matter that occurred in Pennsylvania. Shortly after filing the challenge we received a response that said:
“Challenges made by motor carriers are limited to those inspection/crash reports which are not over 12 months old. This has been established by the program managers in Pennsylvania as a matter of policy. We strongly encourage all motor carriers to take a proactive role in monitoring their safety profile by submitting any challenges as soon as possible within the 12-month time limit.”
In other words, Pennsylvania has adopted, as a matter of policy, that they will not consider challenges filed more than 12 months after the date of the inspection. On the surface, you may think that this is not really a big deal as everyone should be proactive in filing their challenges. However, how about this scenari You have a driver involved in a serious accident with the potential for significant civil liability. The driver receives a couple of citations (say reckless driving), and an inspection is performed and he/she gets a couple of citations. We dispute the citations — because of the potential civil liability and the fact that your driver did not do anything wrong — and the matter goes to trial. However, because of the court’s docket, trial does not occur within a year of the inspection. Regardless, we go to trial and the driver is found not guilty of all charges. We now have a trial verdict in our favor that could be used in the challenge but Pennsylvania refuses to consider it. Sure we could file a challenge in this scenario without the trial verdict but I anticipate the likelihood of getting any relief will be greatly reduced. Moreover, I don’t think you would want a plaintiff’s attorney to say at trial, “look here — they challenged this citation prior to trial and were found guilty.”
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So now, you have a trial verdict that says your driver did nothing wrong but you are still being penalized because Pennsylvania won’t consider the challenge — other states would consider the challenge but not Pennsylvania. Now do you think this is still not a big deal?
This example (and others in the first segment that ran last issue), is only offered to show inconsistencies in how states handle items internally and the inconsistency between how states handle matters.
Of course, even with the inconsistencies that exist in the DataQ challenge process, there are some things you can do when filing a challenge to increase your chances of success. First, have a story. Explain the circumstances surrounding the citation and why you believe it was issued in error. If you can offer a valid explanation of why something occurred, you will increase your likelihood of success.
Second, include any and all supporting documentation that you have related to the challenge. This includes things such as dismissals from court, not guilty verdicts and things such as proof of repairs.
Presently, there is no appeal process for DataQ challenges where no action is taken. However, when an appeal process is determined (and I believe the due process consideration requires one), you will have made all of your evidence of record for the appeal.
Finally, be professional and courteous. Enforcement officers have a tough job and the last thing they want is somebody making personal attacks about them or the job they did in a DataQ challenge. Nobody wants that and it will not help your cause.
In closing, I just wanted to say that while the DataQ challenge process is currently yielding inconsistent results, I believe the process is in its infancy and everyone is learning as they go. The process will become more streamlined and the results more consistent as time passes.
The thing you need to recognize is that every time you have a chance to make a DataQ challenge, you should do so to protect your company and your driver. One thing is certain, if you do not make that DataQ challenge the points will remain on your SMS.
Jim C. Klepper is president of Interstate Trucker Ltd., a law firm dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the 48 states on both moving and nonmoving violations. He is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at discounted rates. A former prosecutor, he is a lawyer who has focused on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking and life over-the-road and has his Commercial Drivers License.
For more information call (800) 333-DRIVE (3748) or go to www.interstatetrucker.com and www.driverslegalplan.com.
The Trucker staff can be reached to comment on this article at firstname.lastname@example.org.
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