I have a JP case where the Trooper cited truck driver for possession of beer while on duty, in violation of 392.5(a) of the Fed. Motor Carrier Safety Act (FMCSA). Driver not intoxicated nor any indcation of consumption, merely possession w/out open container. The driver was ordered to shut down for 24-hours per the code and the officer then files complaint in JP court under this section. My officer (DPS CMV inspector) tells me this is a Class C. I cannot find anything, yet, that backs him up. I am not so sure that I am supposed to be prosecuting violations of Fed. Regs. when I cannot find any apparent authority. What do the great prosecutorial minds of this esteemed board think?
Gee- if your trooper had the time to pull over and cite for this only - - wish I had your crime rate!!
Personally, my desk is too full of other things that have to get done to mess with a ticket on an adult for possession (not drinking, not open) of an alcoholic beverage.
Not sure I qualify as a "great prosecutorial mind" but my first thought was "lucky you" and my second thought was "decline." I'm sure there's some authority out there for this to be charged, but like Lisa, I don't have quite enough hours in my day to research that particular offense.
This may be the applicable statute 49 CFR � 392.5. Took too long to find. Says nothing about Class C violation. I can look further if you think the statute & your facts match? Good luck.
(a) No driver shall --
(1) Use alcohol, as defined in � 382.107 of this subchapter, or be under the influence of alcohol, within 4 hours before going on duty or operating, or having physical control of, a commercial motor vehicle; or
(2) Use alcohol, be under the influence of alcohol, or have any measured alcohol concentration or detected presence of alcohol, while on duty, or operating, or in physical control of a commercial motor vehicle; or
(3) Be on duty or operate a commercial motor vehicle while the driver possesses wine of not less than one-half of one per centum of alcohol by volume, beer as defined in 26 U.S.C. 5052(a), of the Internal Revenue Code of 1954, and distilled spirits as defined in section 5002(a)(8), of such Code. However, this does not apply to possession of wine, beer, or distilled spirits which are:
(i) Manifested and transported as part of a shipment; or
(ii) Possessed or used by bus passengers.
(b) No motor carrier shall require or permit a driver to --
(1) Violate any provision of paragraph (a) of this section; or
(2) Be on duty or operate a commercial motor vehicle if, by the driver's general appearance or conduct or by other substantiating evidence, the driver appears to have used alcohol within the preceding four hours.
(c) Any driver who is found to be in violation of the provisons of paragraph (a) or (b) of this section shall be placed out-of-service immediately for a period of 24 hours.
(1) The 24-hour out-of-service period will commence upon issuance of an out-of-service order.
(2) No driver shall violate the terms of an out-of-service order issued under this section.
(d) Any driver who is issued an out-of-service order under this section shall:
(1) Report such issuance to his/her employer within 24 hours; and
(2) Report such issuance to a State official, designated by the State which issued his/her driver's license, within 30 days unless the driver chooses to request a review of the order. In this case, the driver shall report the order to the State official within 30 days of an affirmation of the order by either the Division Administrator or State Director for the geographical area or the Administrator.
(e) Any driver who is subject to an out-of-service order under this section may petition for review of that order by submitting a petition for review in writing within 10 days of the issuance of the order to the Division Administrator or State Director for the geographical area in which the order was issued. The Division Administrator or State Director may affirm or reverse the order. Any driver adversely affected by such order of the Division Administrator or State Director may petition the Administrator for review in accordance with 49 CFR 386.13.
The "department" has rulemaking authority with respect to commercial motor vehicles. Transp. Code Sec. 522.055. The department adopted the Federal Motor Carrier Safety Regulations in 37 TAC � 4.11 (2006).
DPS can adopt rules under Ch. 644 Trans. Code.
DPS-adopted rules regarding safety of commerical motor vehicles must be consistent with federal regs. Trans. C. 644.051 (To the extent DPS adopted the federal rules, you won't have trouble showing they are consistent.)
Violation of a DPS rule adopted under Trans. Code ch. 644 is a class c. Trans. C. 644.151.
Thanks for your responses. I have plenty to do as well. However, this has been like a one of those little thorns you get in foot that you can't see but it just keeps bugging you. FYI I found the Fed. Regs. at www.fmcsa.dot.gov . I got the same answer that A. Diamond provided from a very helpful DPS Sgt. Ramos, in Corpus Christi, who provided the same info. Thanks again. On to bigger and better things like, uh, let me see... seat belt tickets or window tint violations!
You will find the rule in 37 Texas Administrative Code 4.11. This adopts the applicable chapter (392).
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