Out Of Service Order Violations

For a second conviction, it is a class 1 misdemeanor instead of a class 2 misdemeanor. This carries the potential for higher fines and increased possibility of jail time. Additionally, a driver faces a 2 year CDL disqualification for a second conviction.

For a third conviction, it is a class 6 felony. A felony conviction means a loss of voting rights, the loss of a right to possess a firearm, as well as higher fines and more jail time. A third conviction also results in a 3 year CDL disqualification.

In defending against an OOS order violation charge, we are looking at two things:

Legal Arguments.

Is there a legal argument that the driver or motor carrier did not commit the alleged violation? Some possible arguments might include:

• • The issue that is the subject of the OOS order was in fact resolved.
  • The driver believed the issue that is the subject of the OOS order was resolved.

Details Specific To Our Client

Can we take advantage of our client’s history, background and character to help negotiate an improved outcome? We present our clients in the best possible light working to negotiate an improved outcome. A prosecutor may take into consideration things like:

• • A clean driving record
  • A history of community service
  • School or employment history
  • Other details that help explain what happened in a favorable light.

Some prosecuting attorneys are willing to consider an arrangement wherein our client can plead to a reduced charge (perhaps with no CSA points) or a civil charge, or participate in diversion that results in the charge being dismissed. Generally speaking, prosecutors are not looking to cause a driver to lose their job. There are unfortunately exceptions to this (I’m looking at you Maricopa County). Some prosecutors incorrectly believe that negotiating on a ticket for a CDL holder implicates masking and therefore will not negotiate unless there is a solid legal argument.

The Arizona department of Transporation (ADOT), does not assess any points to a driver’s license (or Arizona record, if the driver’s license is from another state) for violating an out of service order. However, the driver’s CDL will be disqualified.

There are also CSA points associated with violating an out of service order if that violation is reflected on a driver vehicle examination report.

If you hire an attorney, your attorney can often attend court without you. Some courts require that a defendant attend pretrial conferences, but this is the exception rather than the rule. We represent many clients from out-of-state who never return to Arizona or attend court in-person. If you decide to enter into a plea agreement, it is possible you will have to appear by phone once. If your case goes to trial, you will almost certainly need to attend the trial in person. You can discuss whether or not your presence is necessary with your attorney.

Most courts will let you appear by telephone for court appearances other than a trial. Some courts may require you to make this request in writing, others not. If you live out of state, call the court and ask them about their policies regarding telephonic appearances. If you have an attorney, your attorney can take care of this. If your case ends up going to trial, you will need to come back to Arizona for the trial. If your case is resolved without going to trial, you probably won’t need to physically return to Arizona.

Probably, although this will depend on the policies of your specific employer. A conviction will result in the disqualifiction of a driver’s CDL for at least 180 days, so the driver will be unable to drive a commercial motor vehicle during that time. That may be a dealbreaker for an employer.

Maybe. We always advise our clients to consult with an immigration attorney to get a definitive answer to this question. Keep in mind though that a out of service order violation is not like assault, fraud, theft, burglary or any crime that involves a victim. Also, it does not involve alcohol, drugs or guns, all of which will create major problems for immigration. 

In another post, we discuss potential immigration consequences with immigration attorney Jessica Cadavid.

To expunge something means to make it dissappear entirely. Arizona only permits expungement in very limited circumstances. This is not one of those circumstances.

Arizona does have a mechanism to set aside convictions. If a conviction is set aside, it means that the judge undoes the conviciton and dismisses the charge. This changes how the violation is reported on a background check, but does not remove the charge from one’s record entirely.

Arizona now has a process to seal criminal records, which goes a lot further than a set aside towards removing the conviction from one’s record. 

Note that neither a set aside or a sealing will clean up records with the Department of Transportation or FMCSA.