Road safety is everyone's responsibility

[quincy]

I try not to bog down the story with details.

Yes. I saw how you restrained yourself from saying too much in your first two posts.

You have started two threads about two different trucking issues (this one, and the other about an accident involving an uninsured driver for your company). I am afraid I got them confused.

In this thread, you said you did not dissolve your company as a carrier until after you returned to Texas. When you were stopped, you were transporting a vehicle belonging to your company (I.e., acting as a carrier).

 

[RomTon]

Yes. I saw how you restrained yourself from saying too much in your first two posts.

You have started two threads about two different trucking issues (this one, and the other about an accident involving an uninsured driver for your company). I am afraid I got them confused.

In this thread, you said you did not dissolve your company as a carrier until after you returned to Texas. When you were stopped, you were transporting a vehicle belonging to your company (I.e., acting as a carrier).

If I rent a car and thereby become a carrier, then I am entitled to at least a discount in the form of a personal convenient.

 

[quincy]

If I rent a car and thereby become a carrier, then I am entitled to at least a discount in the form of a personal convenient.

Not really.

 

[RomTon]

Not really.

FMCSA in the section List of Proper Use of Personal Conveyance 6. Time spent transporting personal property while off-duty. I think that my personal pickup truck and my personal trailer can be considered personal property. If this is so, then we can say further. The same website section Personal Conveyance: Frequently Asked Questions says 5. How is personal conveyance time calculated in the hours-of-service rules?
Time spent under personal conveyance is off-duty time.
7. Are there maximum distance time or distance limits for the use of personal conveyance?
No. However, it is important to note that the provision in §392.3 of the FMCSRs, prohibiting the operation of a commercial motor vehicle while fatigued, continues to apply. Therefore, a driver must get adequate rest before returning to driving.
If I understand correctly what I quoted from the FMCSA website, then I was traveling in personal conveyance. This in no way relieves me of the obligation to record the ELD, but it still does not oblige me to take into account driving time.

 

[quincy]

FMCSA in the section List of Proper Use of Personal Conveyance 6. Time spent transporting personal property while off-duty. I think that my personal pickup truck and my personal trailer can be considered personal property. If this is so, then we can say further. The same website section Personal Conveyance: Frequently Asked Questions says 5. How is personal conveyance time calculated in the hours-of-service rules?
Time spent under personal conveyance is off-duty time.
7. Are there maximum distance time or distance limits for the use of personal conveyance?
No. However, it is important to note that the provision in §392.3 of the FMCSRs, prohibiting the operation of a commercial motor vehicle while fatigued, continues to apply. Therefore, a driver must get adequate rest before returning to driving.
If I understand correctly what I quoted from the FMCSA website, then I was traveling in personal conveyance. This in no way relieves me of the obligation to record the ELD, but it still does not oblige me to take into account driving time.

You should speak with an attorney in your area for a complete and personal review, RomTon. While I sort of understand your arguments, I am not sure they will help you escape the fines. I tend to think they won’t.

Good luck.

 

[LdiJ]

You should speak with an attorney in your area for a complete and personal review, RomTon. While I sort of understand your arguments, I am not sure they will help you escape the fines. I tend to think they won’t.

Good luck.

I tend to agree with you Q.

 

[RomTon]

I tend to agree with you Q.

You're all right. They didn't cancel anything.
I did a little work on this but unfortunately none of it worked. Maybe I have a chance to win this case in court? This is what I wrote to them:
Request for conference.
Please pay attention to the facts that were left unaddressed.
Regarding the documents requested by the officer. I did not keep ELD records and
therefore could not provide such records. Believing at the time that I was transporting
my own property in a rented car, I was not a carrier, I did not install company signs
on the rented car. However, in the end, despite many mutual objections regarding my
failure to provide the officer with the remaining documents requested by the officer, it
is impossible to agree. Moreover, I cannot agree that I refuse to cooperate with the
officer because all the documents I have were provided to the DOT employee, and
no other demands were made other than to show the documents. I showed the
inspector photos of the medical board on my mobile phone. I also showed the
paperwork and insurance for my rental car on the Turo app on my phone, as well as
the paperwork for the trailer and pickup truck I was hauling on the trailer. I personally
handed over my phone with open images of the above documents and it cannot be
said that I did not provide these documents to the officer. In my previous complaint,
video 4, a recording was made of the moment where I offered the officer to look at
my medical examination.
Company signs were visible on the driver's and passenger's doors of my pickup
truck, which I was transporting on my trailer when the officer searched me. As can
be seen in video 4 of the previous complaint, the officer confirmed in his own words
that he saw these signs on the pickup truck that I was transporting at that moment
and therefore the officer came to the conclusion that my trip was commercial.
However, company insignia on the doors of a 2003 Dodge Ram 2500 does not make
the vehicle company property and cannot allow the vehicle to be considered a
commercial vehicle for that reason.
Answering the question What is the difference between commercial and
non-commercial vehicles?
Commercial vehicles are used for business purposes and must be registered with
the DMV. Personal vehicles, on the other hand, are used for personal, non-business
purposes and do not have to be registered with the DMV. There are some important
distinctions between these two types of vehicles.
After the accident, my company stopped using this vehicle and trailer and,
accordingly, this vehicle and trailer were no longer considered commercial.
FMCSA regulations require CMV operators to record their hours of operation and
service status in addition to other relevant data and to make these records available
for inspections upon request of the police or other authorized person. I did not
maintain such ELD records. However, the preventive measure applied to me does
not correspond to the conditions and circumstances of applying such a measure to
me and depriving me of the opportunity to continue driving for 10 hours.
The 2003 Dodge Ram 2500 I am transporting belongs to me personally by right of
ownership, as evidenced by the title provided to the officer. Also towed by the 2021
F150 rental. The 2019 Appalachian trailer is my personal trailer. The above 2003
Dodge Ram 2500 and 2019 Appalachian trailer are my personal property and do not
belong to any company. The 2021 F150 is also private property but belongs to
another person from whom I leased this vehicle.
The only thing that could indicate a commercial company on that trip was myself, as
the owner of the company ROMTON LLC. However, if I own a company and drive a
vehicle that is not owned by my company and transport any my personal property,
that does not make me a commercial motor vehicle (CMV) driver. For example, if I
operate my personal or rental motor home or mobile home, or transport a personal
boat or other personal property weighing more than 10,000 pounds, I am not
required by law to maintain an EID record or company signs.
The very statement that the transportation of personal property in a rented vehicle
can be considered commercial goes beyond common sense. Even if my trip on a
rented vehicle for the transportation of personal property is considered commercial, it
is not required by law to take into account working hours. The Federal Motor Carrier
Safety Administration (FMCSA) allows commercial motor vehicle (CMV) drivers to
transport their own property while off duty.
FMCSA provides examples of appropriate off-duty use of CMVs for Personal
Conveyance. 6. Time spent transporting personal property during free time.
The FMCSA defines what Personal Conveyance is. Personal transportation is the
movement of a commercial motor vehicle (CMV) for personal use during
non-working hours. A driver may count time while operating a CMV for a personal
vehicle as time off work only if the driver is released from work and all responsibility
for performing the work of the motor carrier. A CMV can be used for Personal
Conveyance even if it is loaded, since at that time the cargo is not being transported
for the commercial benefit of the motor carrier.
Initially, when I leased the 2021 F150, I did not pursue any of the company’s
interests. The only purpose of this trip was to bring my own property and did not
imply any direct or indirect motives in the interests of the company, much less from
the point of view of any commercial benefit in the interests of the carrier. According
to the FMCSA, Personal Conveyance is “the movement of a commercial motor
vehicle (CMV) for personal, off-duty use that does not provide financial benefit to the
company.”
Determining whether you use Personal Conveyance.
Knowing if you use CMV for personal transportation should be easy.
An easy way to determine if you're a Personal Conveyance operator is to ask
yourself these questions, as suggested by FMCSA Director of Compliance and
Compliance Joe DeLorenzo.
Am I off duty?
Am I doing some work for myself and not at the request of the trucking company?
Is the primary purpose of moving the vehicle personal?
Is this being done for non-business purposes?
If the driver can answer yes to all of the above questions, then he works with
Personal Conveyance.
After the accident, the company lost all interest in this vehicle, just like in the trailer,
only my personal interest remained. Since the vehicle and trailer were transported
after an accident, the trip clearly cannot be considered commercial.
The FMSA also explains on its website under "Hours of Operation" its internal rules
regarding the timing and distance Personal Conveyance use. FMSA explains the
House Rules section of its website. Opening hours. Personal Conveyance:
frequently asked questions. 5. How is Personal Conveyance time calculated in the
working time rules?
Time spent in Personal Conveyance is off duty time.
7. Are there any maximum time or distance restrictions for using Personal
Conveyance?
No. However, it is important to note that the provision of FMCSR §392.3 prohibiting
the operation of commercial motor vehicles while fatigued continues to apply.
Therefore, the driver must get enough rest before returning to driving. The law does
not calculate the time of Personal Conveyance in any way in the rules for recording
working hours of the ELD. That is, according to the law, from the moment I left to
pick up my property until I returned home with my property during my trip within the
framework of this case, I should not have taken into account driving time, time on
duty while driving, or sleep or rest time.
The 4th Amendment to the United States Constitution protects the people from
unreasonable government interference with their legitimate expectations of privacy
(People v Quackenbush, 88 NY2d 534, 541 [1996], (Los Angeles v Patel, 576 US
409, 419 [2015] , citing Arizona v Gant, 556 US 332, 338 [2009]; see People v
Weaver, 12 NY3d 433, 444 [2009].) This warrant requirement includes administrative
inspections aimed at ensuring compliance with the regulatory scheme (Kamara v
Municipal Court of the City and County of San Francisco, 387 US 523, 534 [1967];
see Quackenbush, 88 NY2d at 541-542; People v Keta, 79 NY2d 474, 498 [1992]).
Such an administrative inspection, aimed at ensuring compliance with the regulatory
scheme, can be considered an officer's inspection of the vehicle I was driving, my
documents and my property in Cleveland Ohio.

 

[RomTon]

Continuation:
As I previously reported, I loaded my property on October 30, 2023 at the
Hendrickson Auto Repair Shop 2828 NY 79 Harpsville NY 13787. I left immediately
after the shop closed at 5 p.m. From the time I have started driving from
Hendrickson's shop until he was stopped by a DOT officer at 2 p.m. in Cleveland,
Ohio, the distance was no more than 383 miles. I left at 5 pm and was stopped at 2
pm the next day. The total travel time was 21 hours, which is more than enough to
fully combine driving time and rest time. Video 3 of the previous complaint shows the
location and time of filming of the video filmed in Hendrickson's workshop. The
navigator determines the time for such a route as no more than 6 hours. Subtracting
from the total travel time the time required for the direct journey 21 subtract 6 we get
15 hours of time spent on rest. The last rest stop before the city of Cleveland was
made at the rest area 36 minutes before the stop in the city of Cleveland at the
request of the DOT officer, and this is also documented in the form of recording the
time and location of the photographs taken at the rest area.
The ELD integrates with the vehicle's engine and uses global positioning system
(GPS) technology to record, among other things, geographic location, engine hours
and CMV mileage, and date and time. If such technology stops working, the law
allows the use of a piece of paper instead of the ELD, which records driving and rest
time. The so-called paper lookbook, permitted by law in the event of failure of the
ELD, creates great opportunities for falsifying the recording of working hours and that
is why it was replaced by the ELD.
In the case of Owner Operator Indep. Drivers Ass'n et al. v. N.Y.S. Dep't of Taxation
and Fin., No. 5551-13 (N.Y. Sup. Ct., Albany Cnty. Jan. 22, 2016)
The Appellate Division affirmed. The court held that "commercial trucking is a widely
regulated industry and that the ELD rule furthers a 'vital and compelling interest' in
highway safety (205 AD3d 53, 60 [3d Dept 2022, McShan, J.] In reaching this
conclusion, the Appellate Division relied on FMCSA's estimate "that annually 755
fatalities and 19,705 injuries are caused by 'drowsy, tired, or fatigued CMV drivers'"
(id. at 60-61, citing 65 Fed Reg 25540 [ May 2, 2000]). The Court further relied on
FMCSA's "factual findings in connection with its rulemaking" which "showed that the
previous system of documenting work hours through paper records was inadequate
because of the widespread and long-standing problem of falsifying such records"
(id., 61, citing 65 Federal Register 25540, 25558). The Court further relied on
FMCSA's "factual findings in connection with its rulemaking" which "showed that the
previous system of documenting work hours through paper records was inadequate
because of the widespread and long-standing problem of falsifying such records"
(id., 61, citing 65 Federal Register 25540, 25558). The Court also noted the obvious
fact that “paper records are also subject to human error” (id., citing 80 Federal
Register at 78303).
In addition, fleet owners are increasingly being accused of hacking the ELD
application in order to increase driving time. The FMCSA now admits that it has
become aware of “some instances of fraud and abuse” involving ELDs—and that it
may not be able to address these issues.
For example, two former owners of the recently shuttered Massachusetts trucking
company Westfield Transport were charged with falsifying fleet log records,
instructing drivers to falsify their logs and lying to investigators after a fatal crash that
killed seven people in June 2019.
While the CMV driver's time recording system itself allows for falsification of time
recording, I provide irrefutable evidence that I was more than sufficiently rested by
the time the DOT inspector in Cleveland stopped me. An assessment of the facts of
sufficient rest and the absence of the need to put me in out-of-service at 10 o'clock
on October 31, 2023 was not made. Conclusions about this need were made on the
basis that the law requires recording of working time for SMV operators. The facts
are not taken into account, such as the fact that I have never previously violated the
provisions of the law on the recording of CMV time. It was not taken into account that
I was transporting my own property and therefore was not obliged to take into
account separately working time, driving time and rest time in the personal transport
mode.
This treatment of me during the October 31, 2023 inspection in Cleveland and the
subsequent investigation renders the interference with my legitimate expectations of
legal certainty unreasonable.
According to the Ninth Amendment to the United States Constitution, “the
enumeration of certain rights in the Constitution shall not be construed as a denial or
abridgement of other rights reserved by the people.”
Undoubtedly, the ELD rule is constitutional because it is designed to protect SMV
drivers from overwork and thereby protect road traffic. This raises a logical question:
whether the constitutional rule of ELD in this case actually protected me, for
example, from overwork or protected the road traffic in relation to other road users. It
is impossible to give an affirmative answer to this question. In fact, the arbitrary
interpretation of this ELD law did not allow me to freely drive through Cleveland in
good weather and gave grounds for putting me in out of service, after which I found
myself in a severe snowstorm. Undoubtedly, with a correct understanding of ELD law
and constitutional rights, my journey would not have been as dangerous as I actually
experienced it.
Video 5 from the previous complaint 10-31-2023 Cleveland to Geneva, Ohio - First
Lake Effect Snow of Season - i-90 Shots - Heavy Snow filmed a snowstorm that I
found myself in after leaving the city of Cleveland. Moreover, in the city itself the
weather conditions were not as bad as outside the city. Therefore, it was impossible
for me to determine the degree of danger on the high road while in the city of
Cleveland without the special warning means available to the DOT. However, the
officer did not demand that I drive through a dangerous section of road during the
day in good weather. Instead, I was left to wait for the good weather during the day
to turn into a terrible storm at night. Driving at night itself is the most dangerous
according to FMSA statistics, especially driving in a snowstorm. I believe the
constitutionally recognized ELD law was incorrectly applied in my case. This
misapplication of the law turned my relatively safe trip into the most dangerous trip
imaginable. The principles and goals of a safe systematic approach were violated in
my case not on my part, but on the part of the DOT officer. [Docket No.
FMCSA-2022-0028] Clarification of the applicability of emergency "adverse driving
conditions" exceptions.
Since road safety directly depends on the weather, I believe the DOT officer, putting
me out of service, first of all had to make sure that his actions would not put me at
greater risk due to the approaching snow storm, the signs of which were visible even
in the afternoon of October 31, 2023. Required in In emergency situations such as a
snowstorm, flexibility was not shown.
People make mistakes and DOT officers are no exception.
People will inevitably make mistakes and decisions that can lead to or contribute to
accidents, but the transportation system must be designed and operated to
accommodate certain types and levels of human error and avoid the conditions for
accidents to occur. Instead of rushing to write tickets and records, the focus should
be on a safe systems approach, prioritizing eliminating the causes of accidents that
result in death and serious injury

 

[Zigner]

You cannot genuinely expect this group of volunteers to wade through your novella.

Who are you going to send that to?

 

[RomTon]

You cannot genuinely expect this group of volunteers to wade through your novella.

Who are you going to send that to?

Don't know. I just want to make sure that I did everything I was supposed to do. Perhaps publishing my novella was the last thing I should have done before turning this page of my life.

 

[quincy]

Don't know. I just want to make sure that I did everything I was supposed to do. Perhaps publishing my novella was the last thing I should have done before turning this page of my life.

I will read through your posts but because of the length, I may not get to it until later. I am not sure that the recipient of your letter will take the time.

 

[Zigner]

I will read through your posts but because of the length, I may not get to it until later. I am not sure that the recipient of your letter will take the time.

The intended recipient is an important piece of information to have before you commit that much time. Just sayin'

 

[quincy]

The intended recipient is an important piece of information to have before you commit that much time. Just sayin'

Probably. I guess I will add “reread the thread” to my “to do later” list. Haha.

By the way, I do appreciate the effort you put into writing all of that out for us, RomTon.

 

[stealth2]

You cannot genuinely expect this group of volunteers to wade through your novella.

Who are you going to send that to?

Definitely TL;dr.

 

[quincy]

Definitely TL;dr.

I read through the very long posts and, in my opinion, I do not see the arguments working in court to change the outcome. But I have been surprised in the past.