CDL Testing and Licensing Procedures: Observations
While one would assume it would be to deal with a driver who professes complete ignorance of the knowledge or skills that he was required to be tested on, it does happen. In that event, it is important to be able to use the requirements found in the regulations to reveal that the driver had to have this knowledge in order to obtain a CDL. Many cases squarely involve issues with space management, vehicle inspection, or the effects of fatigue. The regulations state a driver must have knowledge of these areas, and therefore a driver’s lack of knowledge of these requirements may provide an opportunity for impeachment.
Often an attorney making a claim against a driver will only consider whether or not he possessed a valid CDL. However, counsel should be mindful that there may be important differences in the type of CDL possessed, such as whether it is for “interstate” or “intrastate” use. The federal requirements for medical testing at part 391 only apply to “non-excepted” interstate drivers. A “non-excepted” interstate driver is someone who does not fit into the regulatory exceptions cited in the next footnote. Because the exceptions are fairly narrow, most drivers are “non-excepted.” Beginning January 30, 2012, an “excepted interstate” driver is not required to comply with part 391, including the requirement of a medical examiner’s certificate, and arguably is not required to comply with State driver qualification requirements either. An “excepted interstate” driver is one engaged exclusively in transportation or operations excepted:
- school bus drivers
- drivers of transportation performed by the federal government or States
- private drivers engaged in the occasional transport of personal property for no compensation
- drivers transporting human corpses or the sick and injured
- drivers of fire and rescue vehicles
- drivers of vehicles with 9 to 15 passengers for no compensation
- drivers of CMVs used primarily to transport propane winter heating fuel or for immediate response to a pipeline emergency, excepting drivers engaged in certain farming operations or the beekeeping industry, private nonbusiness motor carriers of passengers, or (transportation of migrant workers.
Thus, the fact that a driver responds to a request for admission by agreeing that he held a valid CDL on the day of the wreck does not mean the CDL permitted him to operate in interstate commerce.
Although purely intrastate drivers are subject to medical testing by the State, they are not subject to the medical exam and physical qualifications set forth at part 391. It is certainly not unheard of for a driver who normally operates intrastate to be assigned an interstate run by the motor carrier. If the driver only has a CDL that allows intrastate operation, the driver is likely in violation of the regulations. This could be important in certain cases. For example, imagine a scenario where a driver with severe heart disease and an intrastate-only CDL issued by a State with more lenient physical qualifications than the FMCSA has a heart attack during an interstate run and causes a collision. Had the regulations been followed by the motor carrier and driver, the driver would not have been allowed to make the run due to the fact that he did not possess the right CDL. Arguably, even if he was driving intrastate at the time of the wreck, liability might still arise on the theory that the FMCSRs provide the appropriate standard of care even if the State that issued the CDL permitted a lesser standard. This is analogous to how the motor carrier’s own policies should control when they impose requirements above and beyond those in the FMCSRs.
Finally, although they were not topics discussed here, it should be noted that the regulations also include detailed requirements regarding vehicle groups and endorsements. These are found in subpart F. Included therein are descriptions of the specific tests required to earn the CDL endorsements necessary to operate certain vehicles, such as double/triple trailers, tank vehicles, school buses, or vehicles transporting hazardous materials. Counsel is advised to make specific reference to these regulations in cases involving these types of vehicles.
Pertinent Case Law
While a non-interstate driver may not have to present a medical examiner’s certificate as part of the CDL process, the State issuing the CDL may have its own medical or physical exam requirements that must be met. In State v. Orueta, the Supreme Court of Oregon considered the applicability of Oregon’s physical exam requirements when deciding whether a CDL driver convicted of DUI was eligible for a diversion program. The state law that created the diversion program specified that it was available to drivers with a regular automobile license, but not CDL holders. The court answered the question presented in the negative, and further held that the prohibition did not violate either the state or federal constitutions.
The regulations are likely to preempt the internal policies of an employer that do not comply with the requirements set forth in the regulations for CDL testing. In Pavon v. United Parcel Service, Inc., 2007 WL 528262 (N.J. Super. App. Div. Feb. 22, 2007). , a driver was terminated by UPS after he refused to inspect a trailer in the manner it required, which he believed was not in compliance with the tests for vehicle inspection described. (“Equipment, inspection, and use”). The Superior Court of New Jersey, Appellate Division, held that the employee stated a cause of action for retaliatory discharge by showing that the FMCSRs described a type of inspection different from that specified by UPS. Pavon v. United Parcel Service, Inc., 2007. Pavon may be helpful in any case where it is found that a motor carrier required its driver to perform some action relative to a CMV that may be contrary to the requirements set forth in the FMCSRs, and in particular, the matters required to be tested as part of the CDL licensing process.