The Driver’s Record of Violations: Overview
Much like the annual review required, the “record of violations” requirement is a post-hiring, at-least-annual check to be performed on all CMV drivers. However, it differs in one material respect: a motor carrier cannot allow a driver who has failed to comply with this regulation to continue operating a CMV. This is in contrast to the annual review requirement which does not impose any such sanction of immediate disqualification for noncompliance.
Record of Violations Requirements
- The motor carrier “shall, at least once every 12 months, require each driver it employs to prepare and furnish it with a list of all violations of motor vehicle traffic laws and ordinances … of which the driver has been convicted or on account of which he/she has forfeited bond or collateral during the proceeding 12 months.” It should be noted that parking-related violations are specifically excluded from inclusion on this list
- In turn, the CMV driver is required to furnish that list to the motor carrier, and, if he or she has not been convicted of, forfeited bond or collateral on account of any violation that must be listed, he/she shall certify to that fact
- The motor carrier is required to retain the list or a copy thereof in the DQ file
- If a driver has previously informed the motor carrier of a violation as required, it is not necessary for him or her to include that violation on the list provided to the motor carrier
The burden is on the motor carrier to require the driver to prepare the list. The form itself “shall be prescribed” (furnished) by the motor carrier to the driver, although the regulation itself does include a suggested form. Although the regulations speak in terms of “violations,” it should be noted that only convictions or bond/collateral forfeitures must be reported. Thus, a driver charged with reckless driving who subsequently pleads to a lesser offense is only required to report his or her conviction on the lesser charge. There is no requirement that the driver report criminal convictions unrelated to the operation of a motor vehicle, however.
No safe harbor is presented; the list must be furnished “at least once” every twelve months. Ideally, counsel should seek evidence that the motor carrier should have required a driver to provide a list on a more frequent basis. This may be suggested by evidence that the driver had a history of suspensions, a record of bad accidents, numerous failures to comply with motor carrier’s own safety policies, and so forth. Again, if it can be shown that the motor carrier should have checked more often, counsel is one step closer to showing the direct negligence of the motor carrier and gaining the right to introduce a history of citations.
Motor carriers typically require drivers to complete a record of violation form during the hiring qualification process. Drivers just as typically fail to report convictions in the prior year. As mentioned before, the motivation to conceal is obvious: the driver wants to be hired, or if already employed, keep his job. Motor carriers typically obtain (at least) a three-year MVR during qualification, but frequently fail to compare it to the (frequently false-negative) list of convictions furnished by the driver. If it turns out the motor carrier had an MVR which shows its driver lied on the list of convictions he furnished, a claim for negligent retention or entrustment may well arise, and is worth real scrutiny.
The form provided in the regulations includes a place for the motor carrier representative to sign. Thus, the motor carrier is required to pay attention to the form completed by the driver and its contents. This document is almost always done as part of the annual review required. The motor carrier obtains (or is supposed to obtain) an updated MVR as part of the review. One would expect the motor carrier to compare the MVR with what the driver has certified as a “true and complete” list of citations, but this does not always happen. Again, if the two don’t match, the motor carrier might have been negligent in supervising the driver. The internal policies of most big motor carriers deal harshly with drivers who lie on paperwork. You may well find the driver should have been counseled and made to correct the list, or even suspended or terminated for such conduct. The motor carrier may dispose of the initial erroneous (or blatantly false) report. The motor carrier’s representative should be asked: has the driver been required to re-submit a record of violations with corrections?
It is important to determine whether the driver gave notice of convictions for traffic law violations because those violations do not have to be repeated on the annual record of violations. Documentation of those violations is required to be placed in the DQ file. Determine whether the employee who completed the annual review considered those violations, and whether company policies were followed. For example, if the company handbook says the driver is to be placed on probation after his second moving violation in a year, and the driver reported two, counsel should determine if he was actually placed on probation or if company policy was violated.
Perhaps the most significant effect is the consequence of its breach. A driver who has not furnished the list “shall not drive” a CMV and a motor carrier “shall not require or permit” him to drive. Even a driver with no violations must be disqualified from operating a CMV if he has not submitted the proper form. For this reason, it is essential to carefully review the DQ file to locate the record of violations, determine if regulation was obeyed, and if not, when the driver became disqualified as a result of the failure to submit the required form of the driver’s list or certification of no violations.
Pertinent Case Law
Like the annual review requirement, there appears to be a significant lack of cases that directly touch on the requirements. One probable reason is that the regulation has played a significant part in cases involving bad drivers and the motor carriers that failed to keep them off the road. The duty created by this regulation has likely resulted in the resolution of such cases either without appellate review or before a reported opinion could be issued.