As a result of the last legislative session, Art. 45.051(f) of the CCrP now prohibits any kind of deferral for a traffic offense by the holder of a CDL. Before this change, I would allow CDL holders who received a speeding ticket (so long as it was less than 25 miles over the speed limit) to defer the ticket so long as they paid court costs and a deferral fee. Now, since I can't offer any kind of deferral deal, every CDL holder who gets a speeding ticket wants a jury trial (they feel they have nothing to lose) and I am swamped. Have any of you other CAs figured out a deal you can offer to CDL holders that would get a fine out of them without them having to plead guilty to a moving violation?
I have avoided pretrial diversion in county court and District Court but finally found a venue where I'm willing to try it. We charge court costs and a pretrial diversion fee in accordance with the code on these CDL cases(I believe there is a $500.00 limit). After 90 days, we dismiss the ticket. The defendants seem to be more than willing to take the offer. I haven't spent a bunch of time checking into the validity of this but If many counties use pretrial diversion on DWIs, it should work on speeding tickets??
This has been causing problems here, too. Farmers/ranchers who have CDLs, band directors who drive school buses, etc. have all been caught up in this deal. The law does not seem to take into account whether someone is driving their personal vehicle or not.
How did this law get passed?
I too would like to hear what other counties are doing.
I'm also seeing a vast increase in CDL jury trials in my county.
I've heard that deferred is an option once it is appealed up to county court, but I haven't found supporting authority for it. Maybe someone out there can point us in the right direction.
I too was interested in why that law got passed because my son has a CDL. I talked to DPS and it seems it had some federal backing. Especially since the bus driver that crashed into I-35 had some 14 or more tickets. I was under the impression, having just tried a CDL appeal, that deferred is not an option on appeal; that is what my DPS representative indicated. I am not sure that a pretrial diversion program would not be any different as to the legality of the program. The way I understand it is that federal guidelines must be followed or lose federal highway dollars. I talked to the DPS attorney that deals with the CDL licensing, Rebecca Bluett, and would suggest talking to her about the leagality of a pretrial diversion program. See my posting in the CDL suspension in this section.
[This message was edited by pkdyer on 04-19-04 at .]
The law got passed finally in Texas because failure on the part of the legislature to implement the federal rules would have resulted in the permanent loss of federal highway funds (5% the first year and 10% thereafter). Also, the feds had the authority to prohibit a state in noncompliance from having their cdl's legal in other states, etc. The fed rules do say: A state must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CDL driver's conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (except a parking violation) from appearing on the driver's record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State. The ban applies regardless of whether the person was in a commercial vehicle or personal car.
See post above from Ed and Mark. Aren't those two completely different views about the law. My understanding of the law was the way Ed's post outlines it, yet apparently there are numerous counties that do not interpret the law in the same manner since they offer deferred adjudication after an appeal or at pretrial diversion. Have these counties checked with the DPS attorneys on that issue? That was my understanding when talking to the DPS attorneys. If these counties are wrong about their interpretation of the law will Texas highway funding be cut?
It seems that the longer I'm in office, the more creative I'm called on to be in an effort to see justice accomplished.
We have several CDL cases in Justice court - between I 20, US 84 and Tx 70 - we are Truck City! Between us, my JP and I think we have it solved. 1) Truckers rarely show for hearings - they simply wart you to death on the phone. 2) When they fail to appear, new charges are filed. 3) Court Costs go to Austin, fines stay home. Why collect twice for Austin? 4) Speeding max = $200, FTA max =$500. Conclusion - major fine on FTA, dismiss underlying speeding. And - if I'll do it for a trucker driving through, it isn't surprising that I'll do it for local CDL holders.
That isn't to say that this offer would be open to people with bad driving records, really excessive speeds, and the like.
I should state that I have never spoken with a DPS attorney and I believe that Ed's interpretation of the law is the correct one. I am only relaying information because I have been asked this question quite a bit...believe it or not, it's the most frequently asked question I have received. Different counties handle this is different ways. I've even known some county attorneys that implement a "pocket probation" type scenario. I'm just letting this board know how others have handled it. Good luck!
Ok, I gotta ask, What's 'pocket probation'?
I'm certain that my guesses are inappropriate.
Well I didn't know what it was either until a few county attorneys explained to me that their solution to this dilemna was "pocketing" the file i.e putting it in their desk drawer for say 90 days and seeing if the defendant committed a second violation. It's as if the defendant has been deferred. At the end of that 90 day period, if there are no more citations, then the county attorney will just dismiss the case. I'm sure this only works in the smallest of counties because practically, for many reasons, it would be hard to pull off when your caselaod is large. Again, I am not condoning this , I am simply letting everyone else know how others have handled it.
Do they collect a fee? If so, where does it go?
That's what I thought you meant. Interesting question about the 'fee' too.
The cite for the Federal Regulation governing all this is 49 CFR Sec. 384.226. It is strange having to refer to federal regulations when you're talking about class c traffic law but finally the feds holding the purse strings got Texas to comply.
"Only People with a Bad Driving Record"
If nobody does Justice the World's Worst driver, carrying Toxic Waste or Children through your town, can continue to drive with a hundred excused or non moving violations.
This law was passed in part due to a Bus Driver in the Dallas area who killed children after 23 driving violations were masked by 23 Texas jurisdictions because 23 prosecutors or judges were masking convictions, taking lots of money and "doing justice" insted of following the law.
Yes ,this law means a lot more work. A lot more trials. The same contra-arguments that were made when we finally took no drop FV policies and lost Deferred on DWI. If you are going to try anything in JP court why not traffic offenses by CDL holders? Where else can you save a life in JP court.
The problem is a bad driving record is only created by brave prosecutors and by judges that follow the law. There is a reason Texas is number 1 (and way the heck ahead) in number of traffic fatalities involving large trucks. It leads homicides.
Sermon Over. Man do I miss closing arguments. (Can you tell)
Clay, you make a good point. How maddening is it when you get a defendant on the stand with a rap as thick as the NFY phone book, but can't impeach with it because no final convictions... Now, go take your pill and calm down.
I appreciate all of the responses to my question. I like Lisa's idea, and I have in the past offered this as a plea bargain - I just tell the truck driver not to show up at docket, and explain what will happen. Unfortunately, not many will take this offer. Re: the policy behind the law arguments. I have always looked at the criminal/traffic history of the CDL holder before offering deferred, and even when I could, I would not offer deferred to someone with a bad record. For the local CDL holders who are getting their first ticket in 5 years, I really wish the feds had allowed us some discretion. Further, in my county I am the one and only prosecutor in my office. If I get caught up in other, more important cases, the tickets may have to get dismissed if my only other choice is a jury trial.
does this apply to non-moving offenses such as equipment violations?
Our county, having Texas A&M, has MANY CDL's who are students, as well as those who have such licenses exclusively for work. Since 9-1-03, our courts were inundated with gripes about the law change, and requests for alternatives.
The statutes don't provide any.
Our J.P.'s have simply refused to do anything but follow the statutory language.
I prepared the following as a letter sized poster for each of our J.P. courts to put up in their offices. It has reduced the CDL complaints significantly. The clerks can merely point to it and tell them "It's the law, and we must follow it!":
COMMERCIAL DRIVER�S LICENSE HOLDERS,PLEASE NOTE:
Texas Code of Criminal Procedure
�� 45.051(f) and 45.0511(s)
State that you are
NOT ELIGIBLE to take a
DRIVER�S SAFETY COURSE
to dispose of a traffic citation,
and you are
NOT ELIGIBLE for
regardless of the vehicle involved!
This STATE LAW applies to
offenses occurring on or after
September 1, 2003.
I fully agree with Ed's take and believe that to "pocket", grant pretrial "diversion", or to otherwise ignore the plain language of the statutes places the prosecutor in the position of violating their oath to support the Constitution.
Like it or not, it is Texas law until changed by the legislature, and we are ethically bound to enforce it.
|Powered by Social Strata||Page 1 2 3|
© TDCAA, 2001. All Rights Reserved.