Monday, May 18, 2009

When's A Trucker Too Tired to Drive?

When's a trucker too tired to drive?
JIM FOTI, Star Tribune

How should a state trooper decide that a trucker is too tired to drive?

That's the question at the heart of a federal lawsuit filed by a national truckers association, which contends that the Minnesota State Patrol has illegally kept trucks off the road by using a lengthy "fatigued driving" checklist. On the list are such items as whether the driver seems dirty, disheveled, unshaven, irritable or overly agreeable, and whether his sleeping berth is "obviously unused" or has a video game system.

The lawsuit, filed Wednesday in Minneapolis by the Owner-Operator Independent Drivers Association Inc., on behalf of two out-of-state drivers, points out the tricky business of regulating drowsiness on the road.

"We consider this ... an outrageous abuse of police power and an intolerable violation of the civil and constitutional rights of professional truckers," said Jim Johnston, president of the association, the largest in the nation representing professional truckers. "We see no justification for this conduct either scientifically or in rational, legitimate law enforcement."

A State Patrol spokesman said the agency wouldn't comment on pending litigation. The defendants are the patrol's chief, the commander of its commercial vehicle division, and a handful of officers.

The suit says that the checklist was created by Capt. Ken Urquhart, the commercial vehicle commander, and that officers were "strongly urged" in an internal memo to use it when stopping truckers. However, the suit says, it "does not define fatigue, nor does it incorporate any medically or clinically tested and approved methods for measuring fatigue.

"The suit comes as fatigue's role in crashes is coming under scrutiny both regionally and nationally. The same day the suit was filed, the National Transportation Safety Board questioned the sleep habits of the two pilots of the Continental Connection flight that crashed in upstate New York in February and killed 50 people. The NTSB says the copilot apparently pulled an all-nighter before the flight, and both pilots can be heard yawning on the cockpit voice recorder.

Also Wednesday, the lawyer for the truck driver blamed for a fatal bus crash on Interstate 94 east of Eau Claire, Wis., in 2005 indicated that the driver will appeal federal convictions on five counts of falsifying his driving log. The NTSB ruled that Indiana driver Michael Kozlowski had fallen asleep at the wheel of his truck, causing the crash of the bus, which was returning to Chippewa Falls, Wis., after a band field trip.

In 2007, Kozlowski was found not guilty of other charges in the crash, which killed five people and injured 28.

'Difficult to define'

Fatigue may be gaining attention as a safety issue, but enforcement is more complicated than it is for seat belt use or drunken driving, two frequent subjects of special patrols and public education efforts.

"With blood alcohol, there's a concentration that you can measure, and there now is a consensus that at a certain level, people are undoubtedly impaired," said Dr. Elisa Braver, senior epidemiologist with the Insurance Institute for Highway Safety. "There isn't any argument about whether this individual or that individual is impaired.

"Fatigue is much more difficult to define," she said. "This is why the federal government has set limits on the work hours of drivers.

"The problems, Braver said, are that widely used handwritten log books are easy to falsify, and that drivers can become fatigued even if they are within the legal limits.

Hence the roadside examinations -- and Minnesota's unusual checklist.

The suit alleges that the patrol had failed to make the checklist public and used it to remove Stephen K. House of Springdale, Wash., and Gary B. Page, of Spencer, Wis., from behind the wheel in incidents in 2006 and 2008 at a weigh station on Interstate 94 near Moorhead, Minn.

The suit describes interactions that the two men had with members of the State Patrol. House was asked about his "purportedly red" eyes (he said he had allergies) and whether he was able to sleep in his berth, which he often shared with his wife and young son.

The two men said they had no prior knowledge of the checklist and say they each sustained in excess of $75,000 in damages.

'Loopy'-sounding, but ...

The Minnesota Trucking Association doesn't have a position on the checklist, said its president, John Hausladen, but as it gets more attention nationwide, his organization is receiving calls from concerned truckers.

"We are not getting complaints from Minnesota-based carriers being put out of service," he said. His group held a phone-in seminar titled "How Law Enforcement Recognizes Fatigue at the Roadside" in February, and a copy of the checklist can be found on its website.

"If you look at the checklist in isolation, some of the questions just look really loopy," but the overall process to assess fatigue has merit, he said.

Other states have taken an interest in Minnesota's approach. In Iowa, 12 officers have received training from members of the Minnesota patrol as part of a pilot program, said David Lorenzen, chief of Iowa's motor vehicle enforcement office.

The pilot will run until Aug. 1 and then be evaluated, said Lorenzen, who cited the recession as a factor fueling driver fatigue. "People are going to take second jobs and work longer hours, and the economy makes things tougher for everyone.

"Truck drivers are "kind of like the last cowboy," said Capt. Wayne Andrews, a former over-the-road driver who now works for the state police in Indiana, which has had several high-profile fatal crashes tied to fatigue. Indiana troopers used the Minnesota checklist for a time, then received complaints from the state trucking association and ultimately decided the list wasn't necessary.


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