CDL Masking

Masking of CDL Violations is a growing issue in the traffic law industry.  While some courts and prosecutors are not concerned at all, others are becoming increasingly strict with CDL drivers.  

At Heritage Law Office, we are taking steps to have the most up to date information on masking, which is why attorney Liz Gagley has attended two multi-day annual masking trainings that were put on by the National District Attorney Association.  This training was tailored toward training prosecuting attorneys, law enforcement officers, and judges on the rules about masking.  In the two annual CLEs Liz Gagley has attended, she was the only defense attorney present, thus Heritage Law Office is the most prepared to address these issues.

What is masking?  49 C.F.R. § 384.226 defines masking:

“The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CLP or CDL holder's conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (other than parking, vehicle weight, or vehicle defect violations) from appearing on the CDL's driver record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State.”

The CFR's define a conviction as:

“an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.”

This definition has been interpreted in many different ways in order to allow or disallow the amending of the traffic or criminal violation for a CDL driver.  Basically, it comes down to the prosecutors and the courts as to whether an infraction can be amended to a non-moving infraction.  

The National District Attorney Association and various prosecuting attorneys interpret the definition of a conviction very broadly.  In fact, they almost go so far as to say the conviction occurs just because an infraction was issued.   They have defined a conviction so broadly as to not allow any amendment for any CDL driver.  

These prosecutors interpret this to mean that no violation can be amended or changed or it would amount to masking, however we believe that there is no conviction prior to the court finding it committed.  We base this on the CFR definition sited above, which states clearly the conviction only occurs after a finding by the court.  In fact, the materials presented at these classes also state that the parties may negotiate, as that does not amount to masking.  

So what happens if a court does something that constitutes masking?  The concern over masking is that Federal funding to the state or county could be limited or withheld entirely.  No state wants to lose the funding, but to our knowledge, no state has yet been accused of masking for simple infractions and had funds withheld.  In the few times there was a masking issue, the situation was extreme and much more serious than a traffic infraction.  

In summary, Heritage Law Office is fighting to keep your CDL record clean in any way that we can.  We continue to educate ourselves and the prosecutors, as well as other defense attorneys, so that we can work together to keep CDL drivers on the road.