DEPARTMENT OF LICENSING

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Operation Iraqi Freedom

Ron O'Gwin, Criminal Justice Program Manager (CJPM) has been recalled to active duty for the third time since January 2001.  The agency has decided to fill Ron's position until his return.  The interim CJPM is Dirk Marler who started in the position on April 21, 2003.  Mr. Marler previously served more than 14 years as a full time district court judge in Yakima, where he worked on a daily basis with DOL issues and gained an extensive knowledge of the RCW's.  Mr. Marler is a welcome addition to the Driver Responsibility staff and can be reached at (360) 902-4073 or by email at dmarler@dol.wa.gov.  Please join us in welcoming Dirk to DOL.

Federal Motor Carrier Safety Administration (FMCSA) Final Ruling

On Wednesday, July 31, 2002, the FMCSA adopted final rules on Commercial Driver License (CDL) Standards, Requirements and Penalties.  These final rules affect how DOL and the courts do business in relation to deferred findings, deferred prosecutions, etc., as well as general convictions on several levels.  The final rules must be put into effect in each state no later than September 2005.  Failure to abide by the federal rules by that date will result in decertification of the state's CDL program--which would result in the loss of significant federal highway funds (Washington's portion is approximately $800,000 per year).  Also, the CDL holders in a decertified state would be prohibited from operating commercial motor vehicles in interstate commerce.

Under the final rules, 49 CFR 384.226 prohibits masking of convictions for operators of commercial motor vehicles.

49 CFR 384.226 reads:

 "The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CDL driver's conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (except a parking violation) from appearing on the driver's record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another state.

The federal definition of conviction includes deferred findings, and may include deferred prosecutions--basically, any program that would mask a "conviction" in regards to CDL drivers.  The federal definition of "conviction" is found in 49 CFR 383.5:

"Conviction means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated."

Also, Section 202(g) of the Motor Carrier Safety Improvement Act (MCSIA) amended 49 USC 31311(a) to read, in part:

(19) The State shall (A) record in the driving record of an individual who has a commercial driver's license issued by the State; and, (B) make available to all authorized persons and governmental entities having access to such record, all information the State receives under paragraph (9) with respect to the individual and every violation by the individual involving a motor vehicle (including a commercial motor vehicle) of a State or local law on traffic control (except a parking violation), not later than 10 days after the date of receipt of such information or the date of such violation, as the case may be.  The State may not allow information regarding such violations to be withheld or masked in any way from the record of an individual possessing a commercial driver's license.  [Emphasis added.]

If you would like to read the final rules, they are located at:

http://www.fmcsa.dot.gov/pdfs/cdl%20final%20rule.pdf.

The Department will need to look at proposing legislation to restrict the use of deferred findings, and, quite possibly, something similar for deferred prosecutions.  The Department may be able to address the deferred prosecution problem by amending RCW 46.20.308(10) to provide that entry into a deferred prosecution program will not act as a stay of the suspension/revocation of the driver's CDL.

What we may be able to do now is try to reach agreement on not masking offenses through other means, especially those not sanctioned by current statute.  Such as sending someone to traffic school rather than using a deferred finding, or dismissing an infraction and then imposing court costs.

This will be an ongoing work in progress until the legislature enacts legislation to implement the FMCSA final rules prior to September 2005.  An ongoing dialogue will continue between the Department and the judicial community.

Any questions, concerns or issues should be directed to Dirk Marler.  The contact information for Dirk is indicated above.

 (May, 2003)