Masking Convictions for Traffic Offenses

I have read a lot of posts where advice is given for fighting traffic citations. The standard advice given is "Hire a lawyer to have the ticket thrown out." That is generally good advice (as a lawyer, I would not argue against such advice). However, given the relatively new regulation set forth at 49 C.F.R. Sec. 384.226, the ability for CDL holders to fight traffic citations, or to simply "plead bargain" to something that "keeps it off your record", fighting such citations has become more difficult. I know this from personal experience. While I am generally an employment lawyer for truck drivers, I am occasionally asked to fight tickets for CDL holders.

In the past, I often had the ability to negotiate resolutions for drivers that kept offenses off their record. One option was to argue with the prosecutor for what we call in Minnesota a "continuance for dismissal" on the condition that the driver have no other infractions, or no "same or similar infractions. Under this option, the case remains open for a stated period of time, usually six months or one year. If the driver had no offenses, or same or similar offense, then the charge is dismissed after the agreed time period, and not conviction appeared on the driving record. Another option was to negotiate with the prosecutor for a "stay of adjudication." In such cases, the driver pleads guilty, pays court costs equal to the standard fine, but the guilty plea is not accepted and the driver is not adjudicated "guilty" by the Court, on the condition that he has no infractions for a stated period, or no same or similar offenses, depending upon what was negotiated.

These options were usually only offerred if the driver had a relatively clean record. Of course, the prosecutor had to agree.

These options are usually not allowed anymore.

49 C.F.R. Sec. 384.226, implemented in 2011, states as follows:

Pleas or diversion which prevents the infraction from appearing on a CDL driver's record are no longer an option. There are options for the prosecutor to amend the charge and accept a plea to a lesser charge where the facts would support such a lesser charge. Additionally, the prosecutor has the option to dismiss if the charge has no legal or factual basis. This applies even if the CDL holder is operating his personal passenger vehicle.

Yes, this is another screw job for truck drivers taking away an option available to other drivers. I also have serious questions about such interference by the federal government with prosecutorial discretion, and the concept that this applies to state laws as the U. S. Constitution reserves to the States (and then to the people) powers not expressly granted by the Constitution to the federal government.

Drivers may want to think twice about spending money on an attorney to try to keep something off their records. I am not saying "Don't try" but merely suggesting that when you consult an attorney to possibly fight a traffic citation that you have a candid discussion of the options available before spending money on an attorney.

Paul O. Taylor
Attorney

 

Thank you. Good point on the overweight issue. I recently negotiated a careless driving ticket to entering a HOV lane. The facts supported the lesser charge. The prosecutor noted that we good not mask the conviction by a stay of adjudication due to the law mentioned which MN has enacted by statute.

 

What it means is that you cannot negotiate a plea or deferral that keeps a conviction off your record. Charges can be reduced it lesser infractions provided the facts support the plea to the lesser charge.

 

Minnesota enacted a similar provision in 2009 I believe.