Opinion: Protect CSA Scores by Challenging Citations

This opinion piece appears in the Sept. 22 print edition of Transport Topics. Click here to subscribe today.

By Benjamin A. Johnson

Lawyer

Johnson & Lindberg

It was late at night and the truck’s headlights reflected off the damp pavement. The driver eased out of the warehouse lot and onto the road to the interstate. The streets were empty. The driver carefully checked his mirrors and turned on his signal as he moved into the left lane before turning onto the entrance ramp.

The quiet of the night was broken by the sickening crunch of metal. A car, driving with its lights off, had ignored the turn signal and attempted to speed by the truck. Fortunately, no one was hurt — but the police officer who responded issued the truck driver a citation for “unsafe lane change.”

A few weeks later, a prosecutor interviewed the witnesses and dismissed the charges. But the citation did not come off the CSA score for either the driver or the carrier — until recently.

After the implementation of the Compliance, Safety, Accountability program in 2010, motor carriers had many concerns. One complaint was that citations went on — and remained on — a carrier’s record even if that citation was later dismissed.

When local law enforcement issued a citation to a driver or carrier, they reported that to the Federal Motor Carrier Safety Administration, which accepted the citation as true — a policy that was neither fair nor accurate.

But thanks to the efforts of several large carriers and organizations such as American Trucking Associations, FMCSA listened to that complaint. As 2013 ended, the agency said it was considering a change to how CSA scores are calculated.

In June, FMCSA published its decision: A CSA score can be changed based on information about an “adjudicated citation” — a citation that was dismissed or amended.

Reflecting Convictions, Not Charges

The new process respects the court system, allowing each side to present all of the facts. The change makes the outcomes more accurate and avoids unfair penalties. However, it is not retroactive; it applies only to citations issued on or after Aug. 23, 2014.

Some citations are justified — and for drivers and carriers with clean records, one citation will not irreparably damage their scores. Most citations involve paying a fine, and the amount of that fine often is less than it would cost to retain an attorney and challenge the citation.

On the other hand, one citation could push a carrier with a score of 60% on the “unsafe driving” BASIC over the intervention threshold. The cost of that citation might include an audit — and force the offender to obtain legal representation.

If a challenge through the judicial system does not change the citation, there is no change to the CSA score. If the citation is dismissed, it comes off the driver’s and carrier’s record. If the charge is amended, things are more complicated.

A citation amended to a lesser charge changes the CSA score. The original charge still is listed on the CSA record, but there is a notation showing that the charge was amended. And, most importantly, the severity of the citation gets reduced to level 1.

Imagine a situation where a driver does not observe a sign prohibiting the use of a particular lane of traffic. An officer might cite the driver for failing to obey a traffic-control device (level 5). A more appropriate charge might be a lane-restriction violation (level 3). If the prosecutor agrees to amend the charge and the driver pays the fine, the CSA score will be reduced to level 1.

Drivers and carriers are responsible for reporting the outcome of an adjudicated citation; it will not happen automatically. When the outcome is final, the driver and/or carrier can either obtain a formal, certified copy of the outcome, scan it and upload it into the DataQs system, or include a link to an official court website that shows the adjudication results.

An Educational Challenge

The biggest challenge for drivers, carriers and their attorneys will be to educate local prosecutors.

Federal law 49 CFR 384.226 states a prosecutor cannot “mask, defer imposition of judgment or allow an individual to enter into a diversion program” that would prevent the conviction from appearing on the driver’s record.

The law is confusing, and many prosecutors believe they cannot change a citation after is it issued, even if the prosecutor thinks that the officer made a mistake.

The law is so confusing that the state of Missouri asked for clarification — and FMCSA responded. The agency said a prosecutor cannot change a violation after a person has paid a citation, pleaded guilty or been found guilty. But a prosecutor can dismiss or amend a charge before any of that happens.

Plea bargaining does not violate the law because it reduces a charge before a court pronounces guilt, and the masking provision of the law does not prevent plea bargaining from taking place.

FMCSA’s change also may change the calculation for carriers. While a driver’s ticket may be only a few hundred dollars, it might raise CSA scores and trigger an intervention, which could be problematic for fleets.

With carriers worried about retaining their best drivers, showing them that the company will back those when a citation is wrong can increase morale and loyalty. Spending a little money to lower CSA scores and retain drivers is a calculation that will make sense to a lot of carriers.

Benjamin was an assistant public defender before joining the Minneapolis law firm of Johnson & Lindberg P.A. He specializes in commercial trucking liability, personal injury and insurance coverage.