Opinion: Ensuring Accurate Safety Records

This Opinion piece appears in the July 28 print edition of Transport Topics. Click here to subscribe today.

By Fred Fakkema

Vice President of Compliance

Zonar Systems

The Federal Motor Carrier Safety Administration announced in a Federal Register notice that starting Aug. 23, carriers and drivers will be able to request the removal of roadside inspection violations from agency data systems to more accurately reflect outcomes of judicial proceedings. What does this mean — and why should it matter to you?

Carriers and drivers have long complained that citations which have been dismissed or reduced in court still affect their safety records. The real-world impact of this: Those found not guilty or exonerated have been punished as if they were found guilty when a record of a citation lingers with FMCSA without a record of a favorable outcome in court.

And this is true. Historically, violations with citations have remained unchanged in FMCSA’s Safety Measurement System and its Pre-employment Screening Program — regardless of judicial outcome — which is unfair to drivers and carriers. But to address this concern, FMCSA has introduced a plan to adjust these data after court outcomes.

The process starts with the agency’s DataQs system. If you are not familiar with it, you should be; it’s a valuable tool to utilize. FMCSA established the system in 2004 to manage the correction of roadside inspection and crash data generated by state and local commercial motor-vehicle enforcement agencies. Inspectors, after all, are not infallible. They do make mistakes, and those can be removed. And after Aug. 23, citations that are dismissed in court can be removed as well.

While working with the Washington State Patrol, I reviewed a number of DataQs requests, and I can’t stress enough the importance of using the system correctly. Navigating it incorrectly means missing out on this new window of correcting the injustice of being cleared of a citation in court but having it still impact your safety record.

• How is this done? Carriers and drivers who have been found not guilty in court or had a citation dismissed or reduced can file a “request for data review” — RDR —through the DataQs system. States will review the request and the documentation provided by the driver or carrier. Upon verification of adjudication, the state will record the result. Ultimately, FMCSA will collect this information and make the appropriate changes to SMS and PSP. Before the Aug. 23 phase-in date, FMCSA will issue updated guidance and training to state DataQs agents to ensure uniform application.

• What qualifies as adequate documentation? FMCSA doesn’t exactly know yet. To verify that a citation was adjudicated, the DataQs agent must receive and verify the supporting documents provided. This is critical. While FMCSA has not provided a list of acceptable documents, it has issued limited guidance on the types of documents that are preferable. These include certified records of the docket entry, the order of dismissal or entry of a not-guilty determination. A link to an official court website with adjudication results also is acceptable, according to the federal agency. Most importantly, documents should be clearly identifiable and verifiable. Eventually — one would hope soon — FMCSA will provide a formal list of acceptable supporting documents.

• What happens when the documents are accepted? If a citation is dismissed or the defendant is found not guilty, the violation will be removed from PSP and from SMS calculations. If the defendant is found guilty of a lesser offense, it will be noted on the record, and the offense’s SMS severity weight will be reduced to a value of “1.” Convictions for an original charge will remain unchanged. The original citation information will be retained for enforcement users.

• How is a conviction defined? It’s a determination of guilt, a plea of nolo contendere or the payment of a fine or punitive court costs. Excluded court costs include “incidental expenses uniformly imposed on all persons that appear before the court” such as “scheduling fees, the cost of a certified copy of the court’s docket or order, or attorney fees.” A court cost will be considered a fine when the amount charged exceeds the amount generally imposed for the court costs and is akin to a penalty.

A word of caution: This process starts Aug. 23. Citations resulting from inspections occurring on or after that date are eligible for the new FMCSA process. Citations issued before Aug. 23 will not be eligible for review or change — even if they are adjudicated in court after that date.

Good luck navigating the system. FMCSA’s inability to issue concrete guidance on the acceptable documentation isn’t helpful, but even that will be rectified. It’s critical that your record — and that of your carrier — be accurate in the SMS and PSP system and that it be a fair reflection of your driving and your carrier’s safety history.

Before joining Zonar Systems in 2010, Fakkema worked for the Washington State Patrol for 25 years. During his career, he served as commander of the Commercial Vehicle Division, among other responsibilities.