Cover Story
What happened to probable cause
OOIDA challenges CVSA's fatigue out-of-service criteria as 'unconstitutional' and asks the Minnesota State Patrol to explain why it's violating a court order

By Jami Jones, managing editor

With a federal court decision in hand that set clear limits on fatigue enforcement the Commercial Vehicle Safety Alliance proceeded in April to adopt out-of-service criteria for fatigued drivers – criteria that OOIDA says violate the court order and the Fourth Amendment.

On June 12, the Owner-Operator Independent Drivers Association filed a motion for an order to show cause with the U.S. District Court for the District of Minnesota.

The motion asks the court to order both the Minnesota State Patrol and the Commercial Vehicle Safety Alliance show why they should not be held in contempt for implementing out-of-service criteria that run counter to a landmark court ruling handed down Sept. 21, 2011.

The current filing cites the lawsuit filed by OOIDA and member plaintiff Stephen K. House against the Minnesota Highway Patrol in 2009.

OOIDA and House filed the case on May 13, 2009, on behalf of truck drivers placed out of service after members of the state patrol consulted a checklist and arrived at the conclusion the drivers were “fatigued.” According to the lawsuit, members of the state patrol were instructed to consider the presence of a TV, reading material and a cellphone – to name a few – as signs of fatigue.

U.S. District Court Judge Donovan W. Frank issued his final order for declaratory relief, injunction and entry of judgment in favor of OOIDA and House on Sept. 21, 2011.

The order enjoins the state patrol from violating the Fourth Amendment Rights of House and members of OOIDA and from modifying the current General Order that governs the fatigue enforcement program.

The court’s order sets concrete limits on any fatigue enforcement actions conducted by the state patrol so as to protect truckers’ constitutional rights.

The court’s final order stated two very specific limits on fatigue-related inspections. OOIDA reviewed the limits in the recent filing:

First – “during a North American Standard (NAST) inspection, Troopers and Commercial Vehicle Inspectors are to observe drivers for signs of impairment due to illness, fatigue, or other causes, but they cannot expand the driver portion of the inspection to determine impairment unless they have a reasonable articulable suspicion that the driver may be impaired.

Second – “a driver will not be ordered out of service for fatigue or illness unless there is probable cause to believe that the driver, due to fatigue or illness, is unsafe to drive because there is an imminent risk to public safety. When the driver is placed out of service, he is also to be given a citation.”

It’s those limits that OOIDA says CVSA ignored in establishing its new out-of-service criteria for ill and fatigued drivers that prompted the most recent filing by OOIDA.

The newly adopted out-of-service criteria state:

When so fatigued that the driver of a commercial vehicle should not continue the trip based on reasonable articulable suspicion (392.3). 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.”

OOIDA’s motion states that CVSA’s April 1, 2012, adopted out-of-service criteria “confuse these very different standards by allowing the (state patrol) to place a driver out of service merely upon a finding or articulable suspicion, instead of the far more exacting standard of probable cause.”

“The amended CVSA standard allowing law enforcement officials to place drivers out-of-service on the basis of “reasonable articulable suspicion” is unconstitutional on its face,” OOIDA’s motion states.

The court filing by the Association also presents several declarations and a timeline of events that shows CVSA established the out-of-service criteria while in full knowledge of the court’s final order.

“The Declaration of Douglas Morris filed in support of this motion establishes beyond doubt that CVSA acted with full knowledge of this court’s final order when it amended the (out-of-service criteria) governing fatigue,” the motion states.

The declarations and exhibits of Doug Morris, OOIDA’s director of safety and security operations, show that CVSA officials were in possession and knowledgeable of the court’s rulings – including the final order. The group did not act on action requests by OOIDA, one of which was to dismiss the out-of-service criteria.

Eventually, rather than adopt the criteria during a CVSA conference, a ballot was emailed to members that led to the April adoption of the criteria under fire by the motion.

While CVSA was not a named defendant in the case, because the group acts in concert with the Minnesota State Patrol, OOIDA claims CVSA’s and the patrol’s actions should be ruled as in contempt of the court’s ruling.

The motion to show cause asks Judge Frank to issue an order to show cause why officers of the Minnesota State Patrol and the Commercial Vehicle Safety Alliance should not be held in contempt of court for violating the final order. The motion requests a hearing on Sept. 21, the anniversary of the judge’s final order. LL