OOIDA says the recently revised criteria that truck drivers can be placed out of service based on "reasonable articulable suspicion" for fatigue violate Fourth Amendment rights and contradict a previous ruling in federal court. That ruling said that out-of-service orders can be issued only if a law enforcement officer finds "probable cause," a more stringent standard.
In April, CVSA amended its out-of-service criteria for fatigue, stating: "When so fatigued that the driver of a commercial vehicle should not continue the trip based on reasonable articulable suspicion, declare the driver out-of-service until no longer fatigued."
"This revised standard is troubling and unconstitutional on its face," said Jim Johnston, OOIDA president. "Principles of constitutional law dictate that an arrest without a warrant must be based upon probable cause, which is a much higher standard than reasonable articulable suspicion," he added.
In September 2011, the U.S. District Court for the District of Minnesota ruled that during inspections, law enforcement personnel cannot expand an inspection to determine impairment unless they have a reasonable articulable suspicion that the driver may be impaired. Drivers cannot then be ordered out of service for fatigue or illness unless there is probable cause to believe that they are unsafe and an imminent risk to public safety.
"The amended criteria is in direct conflict with the court's ruling," said Johnston. "It basically gives police the ability to put a driver out of service for any or no reason."
OOIDA is asking the court to require the CVSA and MSP to appear and defend why they should not be held in contempt for violating the court's ruling in September.
Because state enforcement activities are funded by the Federal Motor Carrier Safety Administration through the Motor Carrier Safety Assistance Program (MCSAP), the Association also sent a letter to FMCSA asking them to repudiate the amended criteria and purge all out-of-service reports since April 1, 2012 when the amendment was enacted.
When contacted by Truckinginfo about OOIDA's action, CVSA Executive Director Steve Keppler responded, "at this point we have no comment."