Procedural due process refers to the aspects of the due process clause (The Fifth and Fourteenth Amendments) that relate to the procedure of arresting and trying persons who have been accused of crimes. It also applies to any other government action that deprives an individual of life, liberty, or property. It has been broadly interpreted by the US Supreme Court to keep the government from abusing people without a reasonable process.
CSA by its own mission statement is designed to “remove unsafe drivers from the nations highways”. A worthy goal indeed, but perhaps more worthy if we keep Constitutional protections in mind. Knowing your accuser is fundamental to Due Process, this permeates our legal system all the way down to traffic enforcement. I know a guy (he shall remain un-named and I wasn’t going that fast anyway) who had a traffic ticket thrown out because the Officer didn’t show up in Court.
CSA not only does not give a driver their day in court, but I have looked at the latest Data that Vigillo has on nearly 1M drivers, and in only 3% of all violations is there any identifier of who the officer or enforcement official is who wrote the violation.
So no court exists that will hear a drivers case on a CSA violation, a tiny fraction of violations identify the law enforcement person who wrote it, yet this is the system that will be used to take away livelihoods?
What do you all think?
As most everyone knows by now, this is the basis for the lawsuit filed by OOIDA against the FMCSA ,on behalf of four drivers whose violations were not overturned after they submitted DataQ challenges stating that the charges had been thrown out in court. The wording here is the key: the drivers did not plead guilty to a lesser charge, the judge in the case did not throw out the fine and leave the conviction intact, nor did he agree to “expunge” the violation if the driver took a defensive driving course or did community service. The judge in each of the four cases tossed out the charge, saying, in effect, the charge never should have been assessed in the first place.
With state police, county sherriffs, and local jurisdictions essentially ignoring the rulings of the judges in these cases, leaving the violations and their associated points on the drivers CSA record after a DataQ challenge, the lack of protection under Due Process seems fairly clear.
I’ve even taken it a step further in my discussions and presentations: the increasing incidents of violations being placed on an inspection report, with NO citation issued, even in seemingly obvious situations such as a 15+ mph speeding violation. Three drivers in my fleet went through this scenario in a 3 day span last year, in 3 different states. Each of the drivers received only a warning, not a citation, but the violation was entered on their roadside inspection. This leads to my ultimate question of due process: How do you contest a warning? The FMCSA answer is: DataQ challenge. We see how that is working out. The real answer to the question is: you can’t. Penalty without a redress = Due Process.
Another case of constitution be damned. Without sounding like a conspiracy wako, I truly do not get where these politicians who “know better than us” are coming from. Yeah, the safer roadways out here for aunt Margaret are a good idea and i do hope it works. At my palce of business we are pushing a fledgling safety culture and it is working well. However, like stated above, they are messing with another mans livelihood, without care for cause or recourse, and, from the words out a liberals mouth; “This isn’t fair”(NEVER did i EVER think i would have agreed with those people). It is not fair. It simply ties the hands, ever so slowly, that are trying to keep this country and its economy afloat. Grab your life vest Auntie cause the ship is sinking
The fifth amendment applies to capital crimes:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]
The fourteenth amendment applies to life, liberty and property:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Roadside inspections are not a capital or infamous crime and unless the driver is wanted or has an unpaid tax there’s no loss of life, liberty (arrested) or property (truck seized until taxes are paid.)
I would be interested in seeing the DataQ Challenges. How does a driver prove the load wasn’t secured at the time of the stop? How does a driver prove that a light was operational at the time of the stop? The roadside inspection is based on a moment in time. If the driver fixed the problem doesn’t mean the problem never existed.
In regard to speeding.. I suspect the vehicle’s computer or a satellite tracking system could document whether or not the speeding occurred. IMHO carriers don’t utilize the tools available to the maximum extent possible as they suspect it will be incriminating or impair production.
Don’t forget that many State Constitutions also have their own Due Process clause — which may provide stronger protection than the Federal ones.
I was talking with a driver who recived a ticket in Wisconsin he is not from that state, went to court 5 times the officer never showed up at any time. The Judge finely let him go now the state wants him to pay court cost around $240 some dollers they are the people who took him to court yet they sent him the bill