Road law
Un-Masking 2016

By Jeff McConnell and James Mennella, attorneys at law

"Houston, we've had a problem," and it's not getting any better. We're talking about the ongoing and blatant misuse of the term "masking" by DMVs and courts around the country.

The feds tell us that "masking," pure and simple, is when a judge grants a "deferral" or "diversion," which basically lets you plead "guilty" to a traffic ticket, pay your fines and costs but not have your conviction reported or appear on your driver record.

Masking or hiding traffic convictions is a complete judicial no-no these days as the feds are afraid that if convictions are "masked" or not reported, then driver records won't be truthfully reflected and "bad" drivers will stay on the road. It's a safety thing; we get it and it makes sense.

What makes absolutely no sense is the ongoing misapplication of the term masking by DMVs and courts around the country. Simply stated, "no masking" means that all traffic ticket convictions have to be reported to the driver's DMV. But "no masking" does not prohibit a prosecutor or judge from amending a CDL ticket.

I got a ticket for Speeding 55/45 mph zone, and I went to court to try to keep it off my record. The judge told me that he looked at my ticket, and the calibration report for my truck, and decided to change my ticket to Defective Equipment.

I said, "Great," and told the judge I was guilty of Defective Equipment. The judge handed me the paperwork and told me to pay the court costs on my way out. After I paid my court costs, the clerk gave me a receipt that has my conviction of Defective Equipment printed right on the front.

About a month later, I checked my driver record and my original charge of Speeding 55/45 mph zone is on my record now instead of Defective Equipment. When I called my DMV to tell them about the mistake, they told me there wasn't any mistake. They told me that the amended charge of Defective Equipment was "masking" and so they had to put my original ticket as the "true" conviction on my record.

Can the DMV do this? Doesn't the DMV have to do what the judge told them to do?

Well, at least the judge was right when he amended your ticket. Unfortunately, your DMV is completely wrong and should not be able to disregard a valid, court-ordered, amended charge from appearing on your record. Unfortunately, this is the very policy and attitude of many DMVs around the country.

How are courts and DMVs getting away with misapplying the federal "masking" statute? In a nutshell, here's what's happening.

The feds tell the DMVs, "Thou shall not mask" - i.e., no deferrals, no diversions of any kind. And if it happens, the feds won't give fed highway money.

Well, no state wants to lose their fed highway money. So no DMV will accept any court order for "Deferral" or "Diversion." To make sure they're in compliance with the federal "no masking" policy, states send their DMV bureaucrats to "train" the various court clerks, prosecutors and judges. They tell tales about how these court officials will be hounded out of office and employment if they dare mask a ticket for a truck driver. So, at the end of a DMV training session, we get one of two results.

The DMV training is terrible. And when it's finished, the court officials still don't know what the hell masking means and what they can and can't do for a CDL driver. If this is true, then the court officials leave the training completely overwhelmed and confused and simply adopt a play-it-safe, no-changes policy for all CDL tickets.

The DMV training is good. And when it's finished, the court officials are pleased as punch that the fed/DMV just handed them the perfect scapegoat on a silver platter when they told them they can't mask. Now, all the courts have to say is, "Gosh, I'd really like to help you, but the feds won't let me."

Think about it. Dealing with traffic tickets takes a lot of time, manpower and money - and the court would really like to get rid of their pain-in-the-butt traffic docket. So, by using the "no masking" policy as their excuse not to help a CDL driver, a court can get rid of most of its traffic docket and devote that time to other court functions.

Bottom line… whether DMV training on masking is terrible or whether the courts are using the term masking just to have a new excuse to be lazy, we don't know. What we do know is that there's a terrible and ongoing wrong being committed by public officials who refuse to simply read the fed masking definition.

It's not rocket science. Masking prohibits prosecutors and judges from hiding convictions… period! Masking does not prevent prosecutors and judges from amending a CDL ticket to allow the defendant to enter a plea of guilty to the amended charge and for the defendant to pay his/her fines and costs and have the amended charge be reported and appear on their driver record as the amended charge. Trust us, Road Law will continue to work hard in 2016 to make sure public officials understand what masking is and isn't. LL

Send any questions or comments regarding transportation law to: Jeff McConnell and James Mennella, Road Law, 3441 W. Memorial, Suite 4, Oklahoma City, OK 73134; call 405-242-2030, fax 888-588-8983, or email roadlaw@att.net.

This column is the opinion of the writer and does not necessarily reflect the opinions of Land Line Magazine or its publisher. Please remember everyone's legal situation is different. Consult with an attorney for specific advice on your situation.