49 CFR § 384.226 addresses the prohibition on masking convictions:
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 CDLIS driver record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State.
What is a real-life example of masking?
Let’s say, for example, that a driver with a commercial driver license is charged with using a handheld mobile device. The driver enters into a plea agreement wherein he pleads guilty to the charge. The court then defers entry of judgment for 60 days to give the driver time to complete a traffic safety class. If the driver completes the class with those 60 days, the court will then dismiss the charge. This is masking.
Why is this an example of masking?
The key parts of this example that make it masking are the guilty plea, and the subsequent dismissal. By pleading guilty, the driver is admitting to the factual basis of the charge. In other words, the drive is admitting that he was using a handheld mobile device while driving a commercial motor vehicle. The prosecutor and the court, by allowing the charge to be later dismissed, are masking, or hiding, the fact that the driver committed the violation. This is not permissible under 49 CFR § 384.226.
Can CDL holders still negotiate a better outcome in their case?
Yes. While the masking prohibition does reduce options, it does not prohibit negotiations between the defendant driver and prosecuting attorney. A CDL driver may still enter into an agreement with the prosecuting attorney wherein the driver agrees to plead to a lesser charge. The prosecutor could also dismiss the charge. Using the example above, if the driver is charged with using a handheld mobile device, there may be facts that arguably support a lesser charge. For example, the driver and prosecutor may agree that a civil charge of A.R.S. 28-921(A)(2), an equipment violation, would be more appropriate.
The masking issue is generally triggered when the defendant driver admits in some fashion, typically by pleading guilty, to the facts that underly the charge. Once the driver admits to the facts, thereby conceding he committed the alleged violation, the court and prosecutor cannot hide, or mask, the fact that the driver committed the violation.
The language of the statute also seems to prohibit diversion programs, even though diversion programs can sometimes be implemented without a guilty plea or any admission of facts. That being said, we do see courts permit diversion programs for CDL holders wherein there is no admission of guilt.
This anti-masking rule applies to CDL holders, regardless of whether or not they were driving a commercial motor vehicle at the time of the alleged offense. So even if a CDL holder is driving their personal vehicle, the fact that they hold a CDL will trigger this prohibition on masking.
On the flip side, if a non-CDL holder is driving a commercial vehicle (in itself a violation), that driver would not be subject to this masking prohibition because the driver does not hold a CDL.
The masking prohibition does not apply to violations related to parking, vehicle weight, or vehicle defects.