Transportation Law Update, May 2016: Don’t Be “Careless” with CMV Driver’s Careless-Driving Citation

Don’t Be “Careless” with Your CMV Driver’s Careless-Driving Citation

We continue to see a growing number of cases in which drivers of commercial motor vehicles (“CMVs”) are issued traffic citations for, inter alia, careless driving in the event that an accident occurs, particularly in accidents where liability may not be favorable.  The purpose of this article is to caution CMV drivers and their motor carriers not to allow these citations to fall by the wayside, as there are various collateral ramifications stemming from careless-driving convictions and many citations could be effectively challenged with meritorious arguments.

In Pennsylvania, “[a]ny person who drives a vehicle in careless disregard for the safety of persons or property is guilty of careless driving, a summary offense.”  75 Pa.C.S. § 3714.  The penalties for careless driving become more severe if the CMV driver caused serious bodily injury to or the death of another person.  Specifically, serious bodily injury carries a fine of up to $250, whereas the death of another doubles the fine to $500.  Both charges also carry the possibility of 90 days in jail.  An additional $2,000 penalty is imposed if the CMV overturns in an accident resulting from a careless-driving violation.  See 75 Pa.C.S. § 3716. 

Various ancillary ramifications stem from a careless-driving conviction for CMV drivers.  For example, a careless-driving conviction adds three points to a CMV driver’s record.  The Pennsylvania Department of Transportation (“PennDOT”) begins to take corrective action when a driving record reaches six or more points.  A CMV driver could accumulate at least six points from one accident if convicted of multiple traffic citations.  Notably, when police charge a CMV driver with careless driving, they often include additional traffic citations, such as driving a vehicle at an unsafe speed, 75 Pa.C.S. § 3716, and following too closely, 75 Pa.C.S. § 3310.

A careless-driving conviction is also considered a serious traffic violation.  If a CMV driver is convicted of two serious traffic violations within a three-year period, a 60-day disqualification may be imposed, and a 120-day disqualification may be imposed for additional convictions during the same time period.  As the above points, fines, and citations become part of a CMV driver’s record and MVR report upon conviction, insurance premiums, if applicable, and future employment may also be adversely affected.

Collateral consequences arise from a careless-driving conviction for motor carriers as well.  A careless-driving conviction, for example, negatively affects a motor carrier’s safety ratings.  In December 2010, the Federal Motor Carrier Safety Administration (“FMCSA”) enacted the latest version of their compliance and enforcement program, i.e., Compliance, Safety, Accountability (“CSA”), to improve motor carriers’ safety and ultimately reduce CMV-related accidents, injuries, and fatalities.  CSA determines a motor carrier’s on-road safety performance and potential crash risk.  CSA also identifies non-compliant and unsafe companies in order to prioritize them for corrective interventions. 

Careless-driving convictions, motor vehicle accidents, and serious traffic violations are some violations which negatively impact a motor carrier’s CSA score.  The number, severity, and temporal proximity of such violations further reduce a CSA score.  Notably, CSA’s measurement system uses the previous 24 months of data when calculating a motor carrier’s safety scores.

Although convictions for all summary offenses, including careless driving, are inadmissible in subsequent civil actions filed in Pennsylvania State Court, they may be admissible in Federal.  The traffic citations issued by police to CMV drivers serve as a guidepost for plaintiffs in alleging negligence per se in such subsequent actions.  A violation of the Motor Vehicle Code, i.e., the statute governing the operation of vehicles in Pennsylvania, constitutes negligence per se.  Thus, a plaintiff will be entitled to recover in civil cases where he or she establishes a motor-vehicle-code violation and establishes that a CMV driver factually caused the injuries.

In our experience, we often see police charge CMV drivers with careless driving based on emotion, after observing the damage stemming from an accident.  Police assume that, if the CMV driver appears to be at fault for the subject accident, that driver must have been distracted.  This is not always the case.  A classic example, and one we see frequently, is where a CMV driver rear-ends a vehicle, but there is significant evidence demonstrating that the vehicle improperly changed lanes in front of the CMV or abruptly stopped without warning.

To prove careless disregard, the Commonwealth must establish that a CMV driver demonstrated more than ordinary negligence, or in other words, more than the mere absence of care under the circumstances.  However, unlike a reckless driving citation, the Commonwealth does not need to establish that the conduct was willful or wanton.

Think of some classic scenarios where a CMV driver’s actions may be considered more than ordinarily negligent and “in careless disregard for the safety of persons or property.”  Some examples could be: texting while driving, falling asleep at the wheel, reaching behind you or below the dashboard or any other acts in which the driver completely takes his or her eyes off of the road.  We also note that a violation of the FMCSA rule restricting the use of hand-held cell phones by CMV drivers could constitute careless driving.  See our article on Cell Phone Laws and Trends in Various Jurisdictions (Transportation Law Update, Volume 17, Numbers 2 and 3) for details on the FMCSA rule on hand-held cell phones.

Now, think of what evidence the Commonwealth would need in order to prove careless disregard.  If a cell phone was involved, police could secure and observe the CMV driver’s cell phone records.  If a witness saw the careless acts, police may obtain that witness’s statement.  We note, however, that in most scenarios, the only evidence that police have pertaining to careless driving is the CMV driver’s statement.  With that said, we caution CMV drivers from making admissions of guilt to police in the event that an accident occurs. 

Yet, even if a CMV driver admits that he was “distracted”, it does not necessarily mean that he had careless disregard for the safety of others.  We recently defended a CMV driver on a careless-driving charge where the CMV driver rear-ended multiple vehicles.  At the scene, the CMV driver admitted to police that he was “distracted.”  There were no further questions by police or clarifications by the driver.  Although, thankfully, the injuries were minor, police charged the CMV driver with careless driving and refused to dismiss it because the accident “could have been bad.”

At trial, the investigating officer did not present any witnesses.  Instead, he took the stand and testified that he arrived at the scene of an accident, saw that a CMV rear-ended multiple vehicles, and that the CMV driver admitted he was “distracted.”  We cross-examined the officer, who admitted that, even though the CMV driver said he was distracted, he never told police that he was texting, fell asleep, or even that he ever took his eyes off of the road at any time.  The officer agreed that, by “distracted,” the CMV driver could have been mentally distracted but still focused on the road at all times.

In support, we relied on a case from the Pennsylvania Superior Court, Commonwealth v. Gezovich, 7 A.3d 300 (Pa. Super. Ct. 2010).  In Gezovich, as in our case, the only Commonwealth witness was a state trooper who did not observe the accident but merely responded to the scene.  When the trooper arrived, he observed two damaged vehicles and one of the drivers, the defendant, admitted that she saw “the vehicle she struck, in front of her too late.  She slammed on the brakes but struck it anyway.”  Id. at 301.  Nothing further was said or asked. 

While the trial court convicted the defendant of careless driving, the Superior Court vacated the conviction.  The Superior Court noted that the Commonwealth only established that an accident occurred because the defendant was unable to stop her vehicle in time to avoid striking the rear of the automobile in front of her.  Yet, as the Superior Court explained, the mere occurrence of an accident does not prove negligence. 

The Superior Court reasoned that the fact that the defendant did not have sufficient time to stop did not, ipso facto, mean that she was negligent.  The Court posited that the other driver may have abruptly changed lanes or stopped without warning.  The Court further noted that there was no evidence that the defendant was speeding or took her eyes off of the road whatsoever. 

The Court concluded that the Commonwealth failed to meet its burden, as it did not establish ordinary negligence, let alone the mens rea requirement applicable to careless disregard, i.e., less than willful or wanton conduct but more than ordinary negligence or the mere absence of care under the circumstances.

After relying on Gezovich as well as the facts that the officer only testified that our driver was “distracted” and established the mere occurrence of an accident, our CMV driver was found not guilty of careless driving. 

The lesson to be learned is that if you or your CMV driver obtain a careless-driving citation, do not just pay the fine and live with it.  Instead, consider fighting the citation and requiring that the Commonwealth “prove” their case.

Gary N. Stewart is a partner in the Commercial Motor Vehicle Section in our Harrisburg office. Gary is admitted to practice in Pennsylvania, New Jersey, Massachusetts, Connecticut, Vermont and Rhode Island as well as before the U.S. District Courts for the Eastern, Middle and Western Districts of Pennsylvania, the District of New Jersey, the District of Massachusetts, the District of Rhode Island, the District of Connecticut and the U.S. Court of Appeals for the First and Third Circuits.   He graduated magna cum laude from Widener University School of Law (Harrisburg campus) in 1992.  Gary was the recipient of the James C. Crumlish Jr. Award for Excellence in Scholarship and Administrative Law.  He received his undergraduate degree from the U. S. Merchant Marine Academy at Kings Point, NY, and holds U. S. Coast Guard professional licenses as Master of Oceans, Steam or Motor Vessels up to 1600 gross tons as well as Chief Officer, unlimited tonnage, all oceans.  Gary served as the law clerk for the Honorable Rochelle Friedman, Commonwealth Court of Pennsylvania in Harrisburg.  He has been selected by his peers, as a Transportation/Maritime Pennsylvania Super Lawyer in 2016, 2012, 2011, 2010, 2009 and 2007. It is an honor reserved for the top 5% of all Pennsylvania lawyers.

Gary can be reached at (717) 234-7730 •

Robert J. Aldrich III, an associate in our Harrisburg office, concentrates his practice in the area of commercial motor vehicle defense.  Robert earned his J.D., magna cum laude, from Western Michigan University Cooley Law School in 2013. He served as Senior Associate Editor of the Law Review and the Journal of Practical and Clinical Law.  While attending law school, Robert served as a judicial intern for the U.S. Court of Appeals for the Sixth Circuit, the Michigan Court of Appeals, and the Supreme Court of Pennsylvania. He also served as a law clerk for a private law firm in Okemos, Michigan.  Robert earned a B.S. degree in Spanish from the Pennsylvania State University in 2009.  After law school, he served as a judicial law clerk to the Honorable J. Michael Eakin, Supreme Court of Pennsylvania, from January 2014 through March 2015. He also served as a judicial law clerk to the Honorable Margherita Patti Worthington, Monroe County Court of Common Pleas, Stroudsburg, Pennsylvania, from September through December 2013.  Robert is admitted to practice in Pennsylvania, as well as the U.S. District Court for the Middle District of Pennsylvania.

Robert can be reached at (717) 234-7703 •