One of the DOT FMCSA’s “serious offenses” is the illegal cell phone use violation in a commercial motor vehicle (CMV).

Commercial drivers have been severely affected by the amendment to CA Vehicle Code (VC) Section 23123.5, Driving Offenses & AB-47, Distracted Driving. The latter, enacted on 1 July 2021, gives the CA DMV authorization to assess 1.5 negligent operator treatment system (NOTS) points for commercial drivers with a second illegal cell phone use conviction or paid fine.

According to the DOT FMCSA, a serious offense that could lead to a 60-day driver disqualification for a second conviction within three years is:

• Reckless driving.
• No CDL, CPL, or endorsement in possession while driving.
• Following too close.
• An unsafe lane change.
• Illegal cell phone use (“texting or using a handheld mobile telephone while driving a CMV”).
• Excessive speeding (15 or more mph over the speed limit or speeding in a construction zone).
• Failure to obey a traffic control device in relation to a fatal collision.     

A third conviction within three years of the first will result in a 120-day disqualification, a fourth one-year, and a fifth, a lifetime ban from interstate commercial driving.

Noncommercial drivers are assessed 50% less, only one NOTS point for the same violation. That might not seem like a big deal, but when you are only allowed to accumulate four NOTS point in 12 months, and you drive nearly every day, it can be very detrimental when it’s your livelihood and career on the line.

What Is the Fine for an Illegal Cell Phone Use Violation in a CMV?

Once again, the $150 with surcharges, penalties, and assessments for a first conviction or even the approximately $260 fine for a second or subsequent ticket is inconvenient, though it likely will not put a noncommercial driver into financial difficulties. 

How Does a Second Illegal Cell Phone Use Conviction in a CMV Affect the Carrier & Driver?

However, the assessment of NOTS points makes it a moving violation. Fleet managers often see any moving violation as a threat to their Safety Measurement System (SMS) percentile and thus their fleet insurance premium because a moving violation in CA is reported to the DTO FMCSA under the carrier’s DOT number and affects the driver’s Pre-employment Screening Program (PSP) record. 

“The SMS is the FMCSA’s workload prioritization tool. FMCSA uses the SMS to assess noncompliance by analyzing on-road performance data collected from inspections, crash reports, and Acute and Critical Violations discovered during prior investigations. The SMS uses this safety data to assess carriers in the seven Behavior Analysis and Safety Improvement Categories (BASICs).”— The DOT FMCSA SMS Methodology.pdf.

A percentile of 75 or above out of 100 means being flagged as “unsafe” by the DOT FMCSA and warrants additional interventions, such as Offsite Investigations and Onsite Investigations and roadside inspections, that could affect delivery schedules. A percentile above 75 means all trucks could be pulled into opened weigh stations for inspection.    

Tickets or citations where the commercial driver was found not guilty on appeal must be removed from their PSP and, when changed to a different charge, must be reduced to a Compliance, Safety, and Accountability (CSA) severity assessment of one, the lowest risk as a crash indicator. 

Therefore, it’s always wise to consult a CA traffic attorney about any traffic ticket before paying the fine. 

This is especially true now with the NOTS point assessment for a second conviction. The first illegal cell phone use in a CMV might be easier to get dismissed or changed than the second. 

Commercial drivers would be smart to consult an attorney each time.      

Consult Bigger & Harman About an Illegal Cell Phone Use Violation in a CMV

When you receive a ticket for an illegal cell phone use violation in a CMV in Tulare and are considering contesting it in Visalia or Porterville Courthouse, contact Bigger & Harman for a free initial consultation at (661) 349-9300 or email attorney@biggerharmanlaw.com.

Se habla Español (661) 349-9755.

Alternatively, you can use the convenient online contact form. 

Download our e-book, Protecting Your Commercial Driver License. 

References:

CA VC Section 23123.5, Driving Offenses & AB-47, Distracted Driving.

The DMV Portal CA Commercial Driver Handbook.

The DOT FMCSA Mobile Phone Restrictions Fact Sheet.

The DOT FMCSA 49 CFR Part 383.51, Paragraph 6.2.5, Disqualification of Drivers

The DOT FMCSA SMS Methodology.pdf.