ASK THE ATTORNEY: CSA’s DataQ challenge response differs from state to state, person to person
The FMCSA has a mechanism in place where a carrier or a driver can challenge information that the FMCSA has compiled and is using to determine your SMS and ISS score and whether or not an enforcement action will be started against you.
By JIM KLEPPER
The Trucker News Services
Editor’s note: This is the first of a two-part series on CSA scores and how to challenge them.
By now, everyone knows that CSA is up and running and is not going away. Accordingly, all those things that happened 18 months ago — and that you have tried to forget — are now showing up. That speeding citation/logbook/equipment violation that your driver received in November of 2009 or 2010 is now showing up and negatively impacting your SMS and ISS, resulting in you having more interaction with enforcement officers on the road.
Now you are asking yourself “what can I do to address these issues?” The answer is to file a DataQ challenge contesting the accuracy of the information used by the Federal Motor Carrier Safety Administration (FMCSA).
For those of you not familiar with DataQ challenges, the FMCSA has a mechanism in place where a carrier or a driver can challenge information that the FMCSA has compiled and is using to determine your SMS and ISS score and whether or not an enforcement action will be started against you.
Stop right now. If you have not requested your pin number from FMCSA to view your SMS score do so before you finish this article. Less than 10 percent of all carriers have requested a pin number to view their SMS scores as of March 2011. How can you know where you are or even where you need to improve unless you know what your score is?
The process for filing a challenge is pretty straight forward. You can file a challenge directly through the DataQ challenge login page at dataqs.fmcsa.dot.gov or through your FMCSA Compass Portal at https://portal.fmcsa.dot.gov. Once you access the system you will need to enter certain information from the inspection report as well as some basic company information and the reason you are challenging the data. Once that is done, you submit your challenge and magic (or lack thereof) begins to happen. Obviously, there are some additional things that can be done to increase your chances of success and those will be discussed shortly.
In theory, the purpose of the DataQ challenge is to ensure that the information being used by the FMCSA is accurate and consistent. While this is a lofty goal, it is far from being achieved. To quote a friend (and with no disrespect meant to women) “if the DataQ challenge process were a woman we would say she had a great personality.” I think what my friend was trying to say was that while the challenge process has a noble purpose; something is being lost in the execution.
Since CSA went live our law firm has been performing DataQ challenges on behalf of drivers and carriers and the biggest problem that I have seen with DataQ challenges is the lack of consistency in how they are handled. In fact, the only thing that has been consistent is the inconsistency. Things such as response times and willingness to consider the validity of challenges vary from state to state and from person to person.
For example, I have filed challenges for things such no valid medical certificate in possession where the driver had the certificate but simply could not lay his hands on it quickly enough. In that case, quickly enough meant not producing the medical certificate immediately upon demand, but the driver failed to meet that demand because he had to go back into the truck to get it.
Really now, shouldn’t ‘quickly enough’ mean production within the entire stop, not just an arbitrary right now of a particular officer? We have contested these citations in a court of law and have had the Judge/prosecutor dismiss the charges. We have included the dismissals as supporting documentation in the DataQ challenge and have received responses ranging from removal of violation to, in essence, a response of we don’t care that it was dismissed by the judge or court and we are not going to take any action. These cases were both in the same state and were reviewed by the same agency but with different officers.
Monday, more examples.
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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