The Importance of "Evidence Preservation": Part 3 - Related Traffic Citations

Robert Franklin posted on 2010/02/05 |

Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure. This is Part 3 in a nine part series of related discussions. The full list of the parts to this series appears following this installment.

The driver of a commercial vehicle may receive a citation in conjunction with an accident. The fact, and disposition, of such a citation may have several potential impacts on a related civil claim arising out of the accident.

First of all, the obligation imposed by federal regulations for the driver to have a post-accident drug and alcohol test depends in large part upon the receipt of a citation. If there is a fatality, then the driver must go for such a test, regardless of whether a ticket was issued. In the absence of a fatality, however, the obligation to go for such a test in the event of either "(i) bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or (ii) one or more motor vehicles incurring disability damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle” is triggered only if the driver “receives a citation within 8 hours of the occurrence under State or local law for a moving traffic violation arising from the accident”. 49 CFR §382.303. Of course, the driver's employer may require such testing even when the subject regulations do not require it.

Moreover, the disposition of the driver's citation may directly impact a related civil claim. The impact may vary greatly, depending upon applicable State law, and one should, accordingly, be careful to confirm the nuances of the applicable law before deciding upon a course of action regarding the citation.

In Maryland, for example, if the driver goes to trial on the citation, and is convicted, such a finding is not admissible in a related civil suit. That is somewhat counter-intuitive in that the "beyond a reasonable doubt" burden of proof applicable to the "criminal" citation is greater than the civil "preponderance" standard. Again, however, the impact of a conviction may be admissible when some other State's law is applicable.

In Maryland, if the driver pleads guilty to the citation, that is generally admissible in a related civil action as an "admission against interest". Accordingly, it is always in the motor carrier's best interests for the driver to plead not guilty. With ordinary basic citations (e.g. "failure to pay time and attention"), it will generally also be in the best interests of the driver to plead not guilty. In such situations, there is no real potential conflict of interest between the driver and the motor carrier, and the attorney who will handle the civil claim for the motor carrier can safely represent the driver. If, however, there is a more serious charge (e.g. vehicular manslaughter), then it could be in the driver's best interests to plead guilty to a lesser charge (e.g. improper lane change), in order to avoid jail time.

The motor carrier, and its counsel, needs to be cognizant of any such potential conflict early on. Otherwise, if the attorney enters an appearance for the driver, then he or she may thereafter be precluded from representing the motor carrier in the related civil claim due to a conflict of interest. In such situations, the motor carrier may be well advised, for the reasons set forth more fully below, to retain and pay for separate counsel for the driver in conjunction with the citation.

Regardless of the plea or verdict, any traffic court trial involving an accident may be significant in that any testimony given could be used to impeach the same witness or party in the related civil claim, if his or her testimony is inconsistent with that given in the traffic court matter. Moreover, witnesses in the traffic court trial may be witnesses, or even plaintiffs, in the related civil action. Accordingly, having competent counsel represent the driver at the traffic trial may provide a valuable opportunity not only to protect the driver's testimony, but also to cross-examine potential witnesses, and even plaintiffs, when they are generally unrepresented.

As is readily apparent from the foregoing discussion, the issuance of a citation to a driver in an accident involving a commercial motor vehicle, and the disposition of such a citation, may have a significant impact on a related civil suit arising out of the accident. Accordingly, it is generally in the motor carrier's best interest to pay for the driver's defense in such matters. The related costs are generally very modest in comparison to the corresponding exposure in the civil claim. Moreover, failure to undertake such a defense may result in a hostile driver, whose testimony in the traffic trial will almost certainly be admissible in the related civil action, and whose cooperation may be crucial in defending the related civil suit.

The "Preservation of Evidence" Series

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