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FMCSR Week 9: Apples Do Not Explain Oranges

When local police officers are instructed in quasi-enforcement of the FMCSR, they are falsely admonished they are not actually doing FMCSR enforcement but enforcing the State code.  In an earlier post, the idea of “shoehorning” FMCSR violations into the Illinois Vehicle Code were discussed…these are violations that have no equivalent between the two codes.  However, there are some violations of the FMCSR that closely resemble statutes in the IVC.  This post will look at two such violations and how local police officers are being trained to improperly modify the IVC using the FMCSR.

Brakes Both the FMCSR and IVC have statutes about braking systems. There is no argument that braking is a critical system to keep people safe on the highways, but the two codes are very different in scope.  The FMCSR and CVSA out-of-service criteria have many pages of violations that only Illinois State Police troopers can use during their inspections.  The FMCSR talks about percentages of brakes out of adjustment, slack adjuster movement, brake linings, returns springs, chamber sizes, brake/drum contact and air connections.

The IVC has none of these things.  Generally speaking, the IVC defines which vehicles are required to have brakes, and that they must be in working order.  The unfortunate reality is that local police officers are being taught to use the FMCSR to modify one sentence in the 625 ILCS 5/12-301(b)(5) of the IVC: “All brakes shall be maintained in good working order and shall be so adjusted as to operate as equally as practicable with respect to the wheels on opposite sides of the vehicle.

The critic to this post will ask, “how then is a local police officer to know if the brakes are properly adjusted if he cannot use the FMCSR?” The answer is simple.  If a police officer sees the vehicle braking and the tires on one side lockup while the other side keeps rolling, they are not in adjustment.  Lack of explanation on the part of the Illinois General Assembly does not authorize a police officer to go on a fishing expedition for violations of code to which he has no training and no authority to enforce.

Load Securement Nobody wants to see objects falling off trucks.  Machines, aggregate materials, freight…it all needs to stay on the vehicle where it belongs.  The FMCSR has volumes of load securement requirements.  There are different requirements for machines, steel coils, dressed lumber, automobiles and many other commodities.  The FMCSR also has requirements for different methods of the securement…chains, straps, binders, and other tie-downs are explained in detail.

The IVC has two short paragraphs about load securement in 625 ILCS 15-109 and 15-109.1 that summarily say two things.  First, the load must be escaping.  The element of the offense is not the method of securement, but the mere fact the object was not secure.  This is evidenced by the fact the load is no longer on the vehicle.

Second, the vehicle must be “so constructed” as to prevent the escape of the load.  It is improper training regarding this one line that leads many police officers down a path of FMCSR enforcement for specific load securement violations.  Proper interpretation of the “so constructed” language is what any reasonable person would recognize as unsecure.  If a skid of sod is teetering on the edge of a trailer about to fall off, a reasonable person can ascertain the imminent danger.  If a lawnmower is bouncing off the deck of a trailer every time a bump in the road is encountered, a reasonable person can conclude the lawnmower may eventually bounce off if there are no sidewalls to hold it back.

This is a far cry different than stopping the truck and checking for operating strength of chain versus load weight, measuring the distance and width of straps, or determining the minimum number of tie-downs required.  These are FMCSR specific.  The IVC has no requirement of these things.  Again, lack of explanation on the part of the Illinois General Assembly does not authorize a police officer to go on a fishing expedition for violations of code to which he has no training and no authority to enforce.

Next week a list of violations will be provided that are found in the FMCSR which have no equivalent to the Illinois Vehicle Code.  Next to that violation will be the IVC violations local police officers are being trained to cite under. It’s frightening.

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