FMCSR 303--Civil Rights

Arguing an infraction with an officer at the side of the road is a fools errand. You can stand up for FMCSA as much as you like, but Data-Q is not an "appeals process" of any validity in the meaning set forth in constitutional law.

 

In Texas you sign an electronic signature pad before you can review what the inspector wrote. Just a quote from the provided link in your post"Once a state office makes a determination of the validity of the challenge,FMCSA considers that decision as the final resolution of the challenge. FMCSA cannot change state records without state consent" The reasonable expectation is that the state agency will affirm their own initial ruling, regardless of the validity of the claim by the accused. IE; the IRS and state tax agencies admit that 35% of the time advice to taxpayers given by the Employees of these organizations is incorrect. No matter how well you document the situation(Advisors name ID#,ect) you are personally held liable for the penalties for the bad advice. You really expect a stae agency to say "OOPS,our bad. We will correct the info drivermthanks for pointing out this Idiot in our system"? are you really that naiive. You can have live video of a cop beating the hell out of someone and the states position will be one of "well the perpatrator did something to cause this and we are not liable"....so you think the next cog up from the inspector in the revenue generation agency called DPS is going to reverse the officers decision.....maybe....but don't hold your breath .

 

Precisely.

Even in the case of an administrative ruling by the IRS, you have the option to appeal the ruling to a court of law. Data-Q has none of the legal attributes of a adequate appeals process... i.e., the intervention of a disinterested third party. The issuing officer can in no way be considered a third-party to the action, nor disinterested.

In the case of the FMCSA, once the Data-Q process has run its course, there is no allowance for further appeal on the merits. FMCSA blithely stands behind the concept that "its none of our business" (if you get screwed) on the idea that a state employee brought the violation. A convenient (for the beaurecrats) legal shelter.

 

I have pointed out, many civil rights violations that truckers are subjected to for simply being a trucker.(scroll back) I was adding to the OP another voice on the subject to broaden the scope of the OP. Which is something I felt the original poster wanted/liked.(I was merely engaging in the conversation).

Please explain to me where I deviated from the topic(civil rights lost for being a trucker).

 

Exactly right, there is an appalling lack of due process under the law as required by the constitution. The issuing state agency is NOT a disinterested third party,neither am I. The decision on the validity of the claim is left to the agency involved( if not the actual officer!!!)
As the judge stated, these were written as warnings,not enforceable violations and therefore fall into a grey area outside the courts purview.
There is no actual appeal to this process. What we are trying to determine,is,can this be addressed in Civil litigation,thru the civil court since these are "civil violations not criminal violations since there was no fine ,or other guilty/not guilty assesment, only an administrative penalty(points)".
How is this not a violation of due process...which is a basic civil right.

 

Its an administrative deal, with no effective means of appeal. You are however, stuck with the CSA points for three years.

 

Yup!

How about the Minnesota driver fatigue survey(still being used just not officially documented). An 'enforcer' Captain Ken Urquhart unilaterally wrote the checklist/survey to be used by 'enforcers' under penalty of law to put truckers deemed fatigued out of service.
http://www.mntruck.org/pdf/fatigueflier.pdf
Thankfully, it was met by strong opposition.

How far will they go?

This has happened in history before... case in point:

Heinrich Himmler, leader of the police force in Nazi Germany(SS and Reichsfurer SS including the Gestapo) unilaterally wrote laws in which his police/gestapo enforced.

Scary stuff!

 

Well I would stop short of a Nazi comparison but yes it is scary. Look at the number of times the war on drugs/war on terror is used to justify law enforcement encroaching on our liberties. In one case, a friend was selling a classic Mercedes on Ebay, the buyer was in Miami ,my buddy was in Tampa. He and the buyer came to an agreement so he loaded the car into his enclosed 1 car trailer and took it to the buyers mechanic for the agreed upon inspection. Buyer met him there and paid cash for the agreed upon price. On the way back, my friend was stopped for speeding on the Sawgrass expressway. The metro dade cop, a normally decent fellow, noticed the large amount of cash on hand when my friend opened his wallet to get his license. He contacted his superior who showed up on the scene and despite the copies of a bill of sale,ect. decided that the money came from a drug deal and attempted to seize the funds in question. One problem...my buddy is a deputy US attorney and with one call got this stopped.
The problem is the average citizen could not do that, and under the usual application of the search and seizure laws (as outlined under drug profits) this could be allowed.(large amount of cash in a known drug area) The legal recourse is to sue the seizing agency for return of the money,costing quite a bit, quite possibly more than was made on the sale. This has been in effect since the 80's and abused quite often,in several well documented cases.
Civil rights and the application of law can be tricky business.

 

This isn't as 'out there' as it may seem. Enforcers do NOT write the laws they enforce them, period.

When this was going down, I called my State Rep. (as I live in Minnesota) and used the same Nazi comparison. My State Rep. happened to be a very educated, smart, articulate women that understood completely my concern in this matter.

When I was done explaining the MN fatigue survey, who wrote it, and its implications her reponse was, "Oh my God".

 

You waived your rights when you signed the application for your CDL....

No different than one joins the military and signs an agreement with the government to waive their rights as well...

Not to be an azzhat about it...but...Did you sign the application under duress or at the point of a gun?