Ask The Law – September 2018

Questions about Using ELDs in the Aggregate Business & More Answered by Law Enforcement Officials (as of September 2018)

Warning: Laws are subject to change without notice.  These interpretations were made on August 15, 2018.

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Q: I run an end dump in Texas hauling rock and sand.  Going into rock and sand plants, once I have checked in, I drive about 1 to 2 miles in the facility, getting in line, stopping, moving, stopping, moving, which keeps me on the HOS driving line.  My ELD goes to driving when 5 mph is achieved but waits 5 minutes to switch to on-duty, not driving.  As rock and sand plants are private property, can I make my time from scale in to scale out, with ticket in hand, on-duty, not driving?  How would I do this with automatic duty switching?  Can geofencing automatically switch an ELD to on-duty, not driving for plants and facilities if my company sets the parameters for them?  I have not heard of any talk about the aggregate side of trucking.  We load, scale, trim and wash, 4 to 5 times if not more, and that takes time away from the driving line, and we do cross state lines.  Is there a better way?  Donald in Texas

A: Provided by Senior Trooper Monty Dial (Ret.), Texas Highway Patrol, Commercial Vehicle Enforcement Division, Garland, TX: All time spent loading and unloading is required to be logged as on-duty, not driving.  See definition in Part 395.2 of On-Duty, Not Driving.  Since you are using an ELD, the carrier and ELD manufacturer are going to have to make software adjustments in instances when you are at the loading facility where you have to continually move forward to keep from losing your place in line.  Currently in Texas, it is not required that a driver be on an ELD until 12/18/19.  But, if your motor carrier requires you to be on an ELD, you need to comply with the mandate.  Here’s my suggestion: get with your motor carrier and have them check with the ELD vendor and see if they can come up with a solution on the geofencing – since the ELD is not GPS specific, but general geographical location.  Also, see if they can keep you in the on-duty, not driving while waiting at the pit or quarry to get loaded.


Q: This is how I log – once I arrive at a shipper and check in, I go to on-duty, not driving.  Once the shipper tells me what to do, I go back to driving until I back into my assigned dock door.  Then, I go to on-duty, not driving and note that I am loading.  Can I then jump into the sleeper and log it as sleeper berth time?  Ed in Ohio

A: Provided by Officer David Kelly, California Highway Patrol, Commercial Vehicle Section, Sacramento, CA: Title 49, Code of Federal Regulations, Part 395 provides definitions for hours of service terminology, including how to designate specified activities.  As your truck is being loaded or unloaded, you are required to document the time as on-duty, not driving under the following conditions: 1) When you are required by your carrier or the shipper to be in attendance to the vehicle for readiness to operate the truck; 2) When you are supervising or assisting the loading/unloading; or 3) When you are dealing with shipping documentation.  You would be able to document the time as sleeper berth if you were not required to be in attendance of the vehicle – as described above – by the carrier or shipper during loading/unloading, the time is used for rest in the sleeper, and you are not otherwise responsible for the vehicle.


Q: Is it legal to have unopened beer or alcohol in my truck?  Before heading to my 34-hour restart at a friend’s farm, I stopped to buy a couple of 6-packs of beer to take along to enjoy on my downtime.  Paul in Maryland

A: Provided by Senior Trooper Brent N. Hoover, Indiana State Police, Commercial Vehicle Enforcement Division, Indianapolis, IN: Part 392.5, Alcohol Prohibition, of the Federal Motor Carrier Safety Regulations states: (a) No driver shall: (1) Use alcohol, as defined in 382.107 of this subchapter, or be under the influence of alcohol, within 4 hours before going on-duty or operating, or having physical control of, a CMV; or (2) Use alcohol, be under the influence of alcohol or have any measured alcohol concentration or detected presence of alcohol while on-duty or operating or in physical control of a CMV; or (3) Be on-duty or operate a CMV while the driver possesses wine of not less than one-half of one per centum of alcohol by volume; beer as defined in 26 U.S.C. 5052(a) of the Internal Revenue Code of 1954; or distilled spirits as defined in section 5002(a)(8), of such Code.  But, this does not apply to possession of wine, beer or distilled spirits which are manifested and transported as part of a shipment or possessed or used by bus passengers.  The regulation states that the alcohol cannot be in the driver’s possession, unless manifested or transported as part of a shipment.  Let’s look at Question 3 – “Does the prohibition against carrying alcoholic beverages in 392.5 apply to a driver who uses a company vehicle, for personal reasons, while off-duty?”  From the interpretations; guidance: No.  For example, an owner operator using his/her own vehicle in an off-duty status, or a driver using a company truck or tractor for transportation to a motel, restaurant or home, would normally be outside the scope of this section.  So, you can possess alcoholic beverages if you are in an off-duty status and transporting it to an off-duty location, and the alcohol is sealed and unopened, with a receipt to show it was just purchased.

~ The “Ask The Law” program is an ongoing educational effort between Ol’ Blue, USA and commercial law enforcement agencies.  Ol’ Blue, USA is a non-profit organization dedicated to highway safety education and to improving relations between the motoring public, law enforcement and commercial drivers.  Ask the Law is a registered trademark of Ol’ Blue, USA.  This column is copyrighted by Ol’ Blue, USA.  Warning: The information contained within this column is provided for educational and informational purposes only and should not be construed as legal advice.  The content contains general information and is not intended to and should not be relied upon or construed as a legal opinion or legal advice regarding any specific issue.  Be aware that the material in the column may not reflect current legal developments or information, as laws and regulations are subject to change at any time without notice.  Always check with the most recent statutes, rules and regulations to see if any changes have been made.

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Ol’ Blue, USATM is a non-profit organization dedicated to highway safety education and to improving relations between the motoring public, law enforcement and commercial drivers. The Ask The LawTM programs are an ongoing educational effort between Ol’ Blue, USA and commercial law enforcement agencies. “Ask The Law” is a registered trademark of Ol’ Blue, USA. This column is copyrighted by Ol’ Blue, USA.