Major Defect in comm. Veh. HTA 107 (11)

pam
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Re: Major Defect in comm. Veh. HTA 107 (11)

by: pam on
Wed Jul 19, 2017 5:28 pm

Actually Driver was charged for fail to note defect on trip log also (under HTA 107 (8) (A) for that defect we was talking about earlier.
There was no defect in the vehicle when driver did the inspection in the morning before starting his trip.
So officer asked the driver to show the logbook and upon providing the logbook, officer tear off the page for that particular day and took it with him.






screeech
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by: screeech on
Thu Jul 20, 2017 12:54 pm

I doubt there is anything on the ministry site about that...more of a procedural thing, there is nothing in law that says they can't seize it, they just shouldn't seize it...if you are looking to beat the charge because the officer took that page it won't work...


pam
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by: pam on
Thu Jul 20, 2017 2:03 pm

I understand, just trying to know the facts so if needed, can defend this issue.

Just found: Record keeping requirements under Highway Traffic Act

ONTARIO REGULATION 199/07
COMMERCIAL MOTOR VEHICLE INSPECTIONS
SCHEDULE 1
DAILY INSPECTION OF TRUCKS, TRACTORS AND TRAILERS
PART II
DAILY INSPECTIONS
and Part V Record keeping.

That the log book need to be reported/provided to the carrier to comply for mandatory record keeping requirements.

and..........
under Inspections, unsafe vehicles (Highway Traffic Act)
82 (6)
Notice was required to the driver that what level of inspection was done according the North American Standard Inspection Procedure.


I don't know if this is sufficient.


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by: screeech on
Thu Jul 20, 2017 8:06 pm

Yes, that is why the officer should not have taken the log page, as it need to be turned into the Carrier...Officer was probably thinking of rules of evidence and seizing it to be able to produce it later in court if needed...again, the officer should have copied it and left the original with the driver...For now, if I were you, I would get the driver's remaining copy of that day's log page, copy it and keep it with your records, as is required, with a written note on in that the original was seized by officer #, and what the ticket numbers were that were associated to that stop so if you are ever audited you will have something the mto can track...
As for the other issue: I can guarantee the officer was not cvsa certified (commercial vehicle safety alliance) and therefore would not have concucted a cvsa inspection where the driver would have been given a copy of the cvir...when a certified officer, (all of the mto officers at the inspection stations, and some police officers) conduct a cvsa inspection, level 1 or 2, they give you a copy of the cvir which will indicate what inspection they did and any defects or violations...


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by: Stanton on
Fri Jul 21, 2017 7:32 pm

screeech wrote:Officer was probably thinking of rules of evidence and seizing it to be able to produce it later in court if needed...again, the officer should have copied it and left the original with the driver...
Original copy would certainly be best evidence in Court. Also, photocopying a logbook isn't really an option at the side of the road.


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by: screeech on
Fri Jul 21, 2017 8:25 pm

Most people have cameras on their phones, a picture or two will do quite fine in court, or the officer can take the document back to the office to photocopy or have the cmv attend the nearest inspection station for an inspection where there will be a photocopier, all of which depends on the location of the stop and other factors...I am aware of the best evidence rule yes it is the best, but, as noted by the op, there is a requirement to turn it in to the carrier...it is obviously not a perfect situation...


ynotp
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by: ynotp on
Sat Jul 22, 2017 10:05 am

If the page of the pre-trip inspection was seized you will get a copy of it when you request disclosure.

Drivers mistakenly assume that if pulled over for inspection they cannot face prosecution for any defects discovered, arguing that they were not present when they completed the pre-trip.

The charge you mentioned is based on the driver becoming aware of a defect during the operation, and it was not noted in the vehicle inspection report after the pre-trip was completed. (Every pre-trip I have ever seen is designed to allow the driver to add major/minor defects encountered while operating to the inspection report.)

In my opinion, a conviction on this would require that the defect be obvious to the driver during the subsequent use of the vehicle and them not noting it and doing nothing about it.

Were you also ticketed for operating an unsafe vehicle?


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by: screeech on
Sat Jul 22, 2017 9:06 pm

Unless I am wrong, the charge comes from the parking brake not working properly...it will be a hard sell in court to have the JP believe the parking brake was checked during the pre trip inspection and found to be working properly and later in the day it was not working...let me kick a hornets nest here...Even if the driver did a proper pre trip inspection, O Reg 199 Section 8: On-going Monitoring: "A driver shall monitor the condition of each commercial motor vehicle and trailer he or she is driving, drawing or in charge of to detect the presence of a major or minor defect" so, the burden is placed directly upon the driver to ensure during the trip to monitor for and report any defects...
and there would not have been an unsafe vehicle charge or that would have been a summons, this driver was given 2 tickets...
Pam: what was the vehicle the driver was driving and what is the Registered Gross Weight?


pam
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by: pam on
Mon Jul 24, 2017 12:41 pm

The driver did not get the ticket for unsafe vehicle.
It was dump truck and the registered gross weigh was 11,000 kg (according to officer notes)

Got the disclosure. Officer provided copy of the log book page but kept the original.
No inspection report was provided even in the disclosure. Driver don't know what type of inspection the officer did.so he can further study on it. That was it CVSA inspection or any other type of inspection. Is this can be the defense that no Inspection Report was provided? or Should driver ask in the further disclosure request?

in the disclosure, it says; e brake inoperative (foot operated) auto transmission. 3 attempts , 3 fails.

What does it mean? Does it tells that what kind of inspection it was and if the officer need to be certified? or inspection report should have been provided at the time of the stop?

Do 'HTA 82 (6) Notice is required' apply?


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by: screeech on
Mon Jul 24, 2017 3:45 pm

82(6) does not apply...that is for an officer who wants a vehicle to attend for an inspection and such...
The officer had the driver attempt to show the emergency brake was working 3 times...apparently it failed all 3 attempts...The officer does not need to be certified...the inspection report was not provided as the officer is not, in all likelihood, a certified inspector and it will be no defence that an inspection report was not provided...


ynotp
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by: ynotp on
Tue Jul 25, 2017 12:45 pm

It would be nice to know how the test was conducted. Some officers idea of a test is to have the driver activate the parking brake then put the vehicle in gear to see if the parking brake is able to hold the vehicle in place at idle. Others will do the same except they instruct the driver to accelerate. One is the right way, one is the wrong way... the correct one is debatable. Has the regulation changed on this one recently?


ShrekTek
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by: ShrekTek on
Tue Jul 25, 2017 1:17 pm

pam wrote:he just ask the driver to put the truck in drive (first) gear. Driver did that. The truck did not move and then officer asked the driver to press the accelerator, the truck moved when the accelerator was pressed. Officer not tell anything that what the defect is.
It appears the officer had them press accelerator
I am not a lawyer and I am not a paralegal and I do not give legal advice.
All statements made are my opinion only.

ShrekTek


pam
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by: pam on
Thu Aug 10, 2017 1:16 pm

Had a trial date. It was 5 tickets all together along with the ones we discussed earlier in these posts.
Prosecutor was withdrawing the charges on 3 tickets (which was minor without any points) but not other 2. One of them was accumulating 2 points on CVOR.
No disclosure was provided before,......... so they provide the disclosure that day but give me that option also that I have to plead guilty on 2 tickets if I was.
I did not plead guilty and request an adjournment based on, that I need to read the disclosure. Disclosure is only one page. (they give me three copies of the same page) Not explaining much, most of it has information of the driver and the vehicle. and only two lines about the inspection. (e brake n operator (can't properly understand the wording) then next line is; (Foot operator) auto transmission. 3 attempts--3 fails.
How do I convince the prosecutor to not accumulating any points.
I mean I really want to save 2 points.


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