Legal Lane: Do I Have to Produce My Logbook?
February 1, 2012
A driver sent in the following form and asked my opinion as to whether he should use it if he were stopped. I reproduce it exactly as I received it for your review. However, I caution you to read my statements following the form before you decide whether you wish to hand it to an officer of the law.
START OF FORM
U S Federal Marshall’s Office (800) 336-0102
Court Decision in Garner vs. U.S.A. and Miranda decision.
How it applies to the below situation.
The Fifth Amendment is not a self-incrimination amendment, and using it does not imply you are guilty of anything. (The claim and exercise of a constitutional right cannot be converted into a crime – Miller v US 230 F2d 486, 489) and (Where rights incurred by the constitution are involved, there can be no rule making or legislation which would abrogate them – MIRANDA V. ARIZONA, 384 US 436, 491 – 1)
In Garner vs. USA the court decided that the Fifth Amendment is an irrevocable, unchangeable right. It is not automatic self-incrimination, but rather your right to not give evidence or testimony about yourself on the chance that it might be used against you, in that, not even a judge knows all the laws, and ignorance of the law is no excuse.
A trucker is driving down the road and is stopped, the officer request or demands his license, log book registration, fuel permits, and bill of lading. According to the court decision and the Fifth Amendment, the trucker must show that all the times are in his possession, in accordance with federal laws; he does NOT have to let the officer examine the material except to show that he is licensed to drive that commercial vehicle.
It would be advised, to inform the officer that he has seen nothing illegal in plain view and he (the driver) is doing nothing illegal. Therefore, to examine the truck further, in search of some kind of violation, so a citation can be issued, would be malicious and discriminatory harassment, interference with Private Enterprise and interference with Fee Trade, undue delay of an ICC Interstate or Intrastate shipment and possibly a violation of Constitutional and / or Civil Rights by a Government Agency, such as we had by Los Angeles, CA area officers.
It might also be advised, to inform the officer that taking the information under threat or duress, or searching the truck, without sufficient cause without a warrant or a “John Doe” warrant, is illegal warrant, is an illegal search and seizure, and any charges resulting from such actions by the officer(s) will be litigated in Federal District Court and dismissed as a violation of the driver’s Fifth Amendment Rights, not to be required to give any evidence, verbal or physical, that would tend to degrade or incriminate him. Also, the officer(s) could possibly be sued, civilly and criminally in his/her personal and professional capacity.
I THE DRIVER, DO State and Proclaim to any Federal, State, or Local Government Official that before any exchange of legal documents requested or demanded by such official occurs, that official shall have read, understood signed and dated this instrument.
- The Official will be shown all legal documentation that is in my possession.
- Legal documents signed with my signature can not be examined because they may be used against me in court, being causation of the act of self-incrimination.
- Official understands that the above applies to the drivers Fifth Amendment rights.
Both the driver and official sign and date this proclamation below.
END OF FORM
The driver who gave me the above form would have fallen victim to a cruel hoax being played on professional drivers if he had presented it to an officer. A form similar to the one above, and I have even seen it copied on a stolen piece of letterhead stationery of U.S. Senator Paul Simon (D) Illinois, shows the case of Garner vs. United States, 424 U.S. 648 (1976) as standing for the proposition that you don’t have to surrender your logbook. The theory is that you violate your Fifth Amendment rights by giving your personal papers that may incriminate you if you are behind on your record of duty status.
My advice is don’t use this theory with an officer. Let me tell you a little story about a brand new driver on his first load. He had given the officer one of the above forms, or at least one very similar, at a scale in Missouri. The officer was allowing him to call me because he was about to take him to jail and felt sorry for a new driver. This new driver was just about in tears when he called me and scared out of his wits.
After speaking with the driver and getting his side of the story I was able to speak with the officer. About ten minutes of discussing the matter with the officer, he agreed to forget the trip to jail and allow the driver to be put out of service until his logbook caught up to his location. We both had a good laugh at the form the driver had given him and agreed it was a shame that new drivers get caught up in the “legal roundtable” at every truck stop, get bad advice, and then have to learn the hard way.
As an attorney, take my word that Garner was a tax case filed in 1973 that determined the tax records are written and as such are not protected by the Fifth Amendment. Furthermore, the Supreme Court has ruled that your Fifth Amendment rights only apply to spoken words not written documents that may be in your possession or hold information that may incriminate you. Only you may seek to invoke your Fifth Amendment right, not your spouse or even your attorney.
You should always follow company policy about providing your logbook to officers as well as searches of your truck. However, you should know that you do have the right to remain silent and you do have the right to refuse to testify if that testimony will tend to incriminate you in criminal matters.
Let’s review this document. The form starts out telling you that you do have a right to invoke your Fifth Amendment right without fear of retaliation from the government. That information is correct.
Then the form goes to the EXAMPLE. The form misinterprets the Court’s opinion by including in your Fifth Amendment right written records that the Court has specifically stated are not covered by the Fifth Amendment.
Not wanting to leave out other Constitutional Amendments, the form then uses the Fourth Amendment against warrantless search and seizure asking the driver to tell the officer what he has and has not seen in plain view and to further inform the officer the driver has violated no law, which, of course, is the reason for the initial stop by the officer. The officer has either viewed the driver violate the law, in the officer’s opinion, or has been informed the driver has violated the law or is performing a roadblock stop (read scales here).
The Court is very clear on vehicle searches and stops. All recent cases have granted law enforcement broad powers to search the vehicle, the trunk or closed compartments, and even closed boxes such as suitcases or briefcases. The PATRIOT Act as Passed by Congress – HR 3162 on October 25, 2001 increases the police powers of the state to search vehicles and identify drivers, especially of hazardous materials carriers.
Coffey bars at truck stops are a great place to talk with other drivers and learn from their experiences but a really bad place to get your legal advice. Want to know how to drive a truck ask a driver, want to know about legal issues ask a lawyer. The moral of this story is it is better to show them the logbook and fight it afterwards. That’s better than being put out of service with a ticket to boot.
Jim C. Klepper is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation’s commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Jim is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Jim, a former prosecutor, is also a registered pharmacist, with considerable experience in alcohol and drug related cases. He is a lawyer that has focused on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking and life over-the-road and has his Commercial Drivers License. 800-333-DRIVE or www.interstatetrucker.com and www.driverslegalplan.com