Consistently Inconsistent or The Joy of DataQ Challenges
June 1, 2011
By now, everyone knows that CSA is up and running and is not going away. Accordingly, all those things that happened eighteen months ago – and that you have tried to forget – are now showing up. That speeding citation/logbook/equipment violation that your driver received in November of 2009 or 2010 is now showing up and negatively impacting your SMS and ISS, resulting in you having more “interaction” with enforcement officers on the road. Now you are asking yourself “what can I do to address these issues?” The answer is to file a DataQ challenge contesting the accuracy of the information used by the FMCSA.
For those of you not familiar with DataQ challenges, the FMCSA has a mechanism in place where a carrier or a driver can challenge information that the FMCSA has compiled and is using to determine your SMS and ISS score and whether or not an enforcement action will be commenced against you. Stop right now, if you have not requested your pin number from FMCSA to view your SMS score; DO SO BEFORE YOU FINISH THIS ARTICLE. Less than 10% of all carriers have requested a pin number to view their SMS scores as of March 2011. How can you know where you are or even where you need to improve unless you know what your score is?
The process for filing a challenge is pretty straight forward. You can file a challenge directly through the DataQ challenge login page at www.dataqs.fmcsa.dot.gov or through your FMCSA Compass Portal at https://portal.fmcsa.dot.gov. Once you access the system you will need to enter certain information from the inspection report as well as some basic company information and the reason you are challenging the data. Once that is done, you submit your challenge and magic (or lack thereof) begins to happen. Obviously, there are some additional things that can be done to increase your chances of success and those will be discussed shortly.
In theory, the purpose of the DataQ challenge is to ensure that the information being used by the FMCSA is accurate and consistent. While this is a lofty goal, it is far from being achieved. To quote a friend (and with no disrespect meant to women) “if the DataQ challenge process were a woman we would say she had a great personality.” I think what my friend was trying to say was that while the challenge process has a noble purpose; something is being lost in the execution.
Since CSA went live our law firm has been performing DataQ challenges on behalf of drivers and carriers and the biggest problem that I have seen with DataQ challenges is the lack of consistency in how they are handled. In fact, the only thing that has been consistent is the inconsistency. Things such as response times and willingness to consider the validity of challenges vary from state to state and from person to person. For example, I have filed challenges for things such a no valid medical certificate in possession where the driver had the certificate but simply could not lay his hands on it quickly enough. In that case, quickly enough meant not producing the medical certificate immediately upon demand, but the driver failed to meet that demand because he had to go back into the truck to get it. Really now, shouldn’t ‘quickly enough’ mean production within the entire stop, not just an arbitrary “right now” of a particular officer? We have contested these citations in a court of law and have had the Judge/Prosecutor dismiss the charges. We have included the dismissals as supporting documentation in the DataQ challenge and have received responses ranging from removal of violation to, in essence, a response of we don’t care that it was dismissed by the judge or court and we are not going to take any action. These cases were both in the same state and were reviewed by the same agency but with different officers.
Another example of the inconsistencies is in the willingness of states to consider the challenges. As you can imagine, when CSA went live we had clients who sought our help in trying to address some older items that were showing up on their SMS. In one such instance, we filed a challenge for a matter that occurred in Pennsylvania. Shortly after filing the challenge we received a response that said:
“Challenges made by motor carriers are limited to those inspection/crash reports which are not over 12 months old. This has been established by the program managers in Pennsylvania as a matter of policy. We strongly encourage all motor carriers to take a proactive role in monitoring their safety profile by submitting any challenges as soon as possible within the 12 month time limit.”
In other words, Pennsylvania has adopted, as a matter of policy, that they will not consider challenges filed more than 12 months after the date of the inspection. On the surface, you may think that this is not really a big deal as everyone should be proactive in filing their challenges. However, how about this scenario: you have a driver involved in a serious accident with the potential for significant civil liability. The driver receives a couple of citations (say reckless driving) and an inspection is performed and he/she gets a couple of citations. We dispute the citations — because of the potential civil liability and the fact that your driver did not do anything wrong – and the matter goes to trial. However, because of the court’s docket, trial does not occur within a year of the inspection. Regardless, we go to trial and the driver is found not guilty of all charges. We now have a trial verdict in our favor that could be used in the challenge but Pennsylvania refuses to consider it. Sure we could file a challenge in this scenario without the trial verdict but I anticipate the likelihood of getting any relief will be greatly reduced. Moreover, I don’t think you would want a plaintiff’s attorney to say at trial, “look here – they challenged this citation prior to trial and were found “guilty.” So now, you have a trial verdict that says your driver did nothing wrong but you are still being penalized because Pennsylvania won’t consider the challenge – other states would consider the challenge but not Pennsylvania. Now do you think this is still “not a big deal?”
These above examples are not exhaustive. They are only offered to show inconsistencies in how states handle items internally and the inconsistency between how states handle matters.
Of course, even with the inconsistencies that exist in the DataQ challenge process, there are some things you can do when filing a challenge to increase your chances of success. First, have a story. Explain the circumstances surrounding the citation and why you believe it was issued in error. If you can offer a valid explanation of why something occurred, you will increase your likelihood of success. Second, include any and all supporting documentation that you have related to the challenge. This includes things such as dismissals from courts, not guilty verdicts and things such as proof of repairs.
Presently, there is no appeal process for DataQ challenges where no action is taken; however, when an appeal process is determined (and I believe the due process consideration require one) you will have made all of your evidence of record for the appeal. Finally, be professional and courteous. Enforcement officers have a tough job and the last thing they want is somebody making personal attacks about them or the job they did in a DataQ challenge. Nobody wants that and it will not help your cause.
In closing, I just wanted to say that while the DataQ challenge process is currently yielding inconsistent results, I believe the process is in its infancy and everyone is learning as they go. The process will become more streamlined and the results more consistent as time pass. The thing you need to recognize is that EVERY time you have a chance to make a DataQ challenge, you should do so to protect your company and your driver. One thing is certain, if you do not make that DataQ challenge the points will remain on your SMS.