E-mail to the Chief of Police in Las Cruces, NM

[Myth_Buster]

C5. El Paso (Texas) Times: Tuesday, January 27, 2009

HEADLINE: Big rig runs over, kills man sleeping in Las Cruces parking lot

Byline: Adriana M. Chávez, El Paso Times Staff

EL PASO -- A Virginia man was killed Saturday when he was run over while sleeping in a Las Cruces parking lot, police said.

Michael Allen Williamson II, 25, had apparently fallen asleep in front of an 18-wheeler in the parking lot of DATS Trucking, 400 S. Compress. Police said Williamson, who may have been intoxicated, was run over at about 3 a.m. Saturday after the driver, El Pasoan Jesus Cano Garcia, 28, began moving the truck.

Police said no charges against Garcia are expected to be filed. Williamson's death was listed as a pedestrian fatality, police said.

End.

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Dear Chief Romero, I was deeply troubled by the report of a driver running over a pedestrian at 3:00 AM. If my suspicions are correct the driver of the tractor trailer failed to perform some rudimentary safety checks required by the Federal Motor Carrier Safety Regulations (FMCSR.) Had the driver of the big rig walked around his vehicle before moving the vehicle Mr. Garcia would have seen the man lying in front of his truck and avoided the accident.

Mr. Garcia’s negligent behavior caused Mr. Williamson’s death. If Mr. Garcia had obeyed the safety regulations he would have saved Mr. Williamson’s life. Two wrongs do not make a right. At the very least I believe Mr. Garcia’s employer should be chastised for failing to ensure their employees followed the safety regulations.

The news of the incident is additional evidence that drivers fail to obey the safety regulations and protect the public that interact near their vehicles on a daily basis. Drivers of tractor trailers have a “COMMERCIAL” driver’s license and are held to a higher standard.

Thank you for your time in listening to my concerns; I hope the City of Las Cruces examines the accident closer and re-evaluates the culpability of Mr. Garcia in his neglectful actions.

Federal Motor Carrier Safety Administration = A link to the FMCSR

FMCSA, Analysis and Information Online = A link to investigate the motor carrier to determine their driver and vehicle safety performance.

Sincerely;

Mike M

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

§392.7 Equipment, inspection and use.

No commercial motor vehicle shall be driven unless the driver is satisfied that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed:

Service brakes, including trailer brake connections.

Parking (hand) brake.

Steering mechanism.

Lighting devices and reflectors.

Tires.

Horn.

Windshield wiper or wipers.

Rear-vision mirror or mirrors.

Coupling devices.

§396.11 Driver vehicle inspection report(s).

(a) Report required. Every motor carrier shall require its drivers to report, and every driver shall prepare a report in writing at the completion of each day’s work on each vehicle operated and the report shall cover at least the following parts and accessories:

—Service brakes including trailer brake connections

—Parking (hand) brake

—Steering mechanism

—Lighting devices and reflectors

—Tires

—Horn

—Windshield wipers

—Rear vision mirrors

—Coupling devices

—Wheels and rims

—Emergency equipment

§396.13 Driver inspection.

Before driving a motor vehicle, the driver shall:

(a) Be satisfied that the motor vehicle is in safe operating condition;

Be safe.

[Rev.Vassago]

I couldn't agree more. Had the driver performed the required inspection, he would have seen the drunk sleeping in front of his truck.

[cdswans]

I saw that story earlier today and almost posted it. While my intent would have been to raise the issue of an obvious absence of a pre-trip, I had no intention of ratting out the driver or the company as MB has apparently done. I had every confidence there are many astute lawyers in Las Cruces who have picked up on that already.

At the same time, as cold as it was and as drunk as this guy must have been, I couldn't help but wonder if he didn't get exactly what he was looking for. If that's the case, instead of being paid for services rendered, DATS and driver are going to pay through the nose for this. That's a tragedy. That's why I didn't post it.

[Uturn2001]

A lot of assumptions are being made from very little information.

It is possible that a pre trip had been done and Williamson passed out, unnoticed, while the driver was doing paperwork.

It is also possible that the driver had stopped by the terminal during a run to get or turn in something and did not "park" instead simply pulled up along side the office, driver's room or whatever and the victim passed out while the driver was gone for a few minutes and while returning to the truck approached it from the rear and therefore had no way to see someone on the ground in front of the truck.

I do not know exactly what happened any more than any of you do. There are many possibilities as to how this happened, and while the one others here have indicated is certainly possible so are the ones I outlined as well as many others.

One thing I do know is that a full vehicle inspection is NOT required at the start of a trip/day though. All that is required is that the driver ensures that the vehicle is safe for operation. While I know many drivers who actually do VI's at the start of the day, some choose to do them at the end of the day when they fill out their DVIR. Other drivers choose to do the big VI while they are fueling, if they know they will be doing so fairly soon after starting their day.

[Rawlco]

Thank you U-turn for pointing that out. I only pre-trip once per day, plus I pre trip each trailer that I hook to. I do not spend 15 minutes checking everything after every liffle 5 minute stop.

-----------------------------
Question:
The victim was from Virginia and possibly intoxicated in a TRUCK stop located in New Mexico. Now how likely is it that he was also a truck driver and was scared to use Golfhobo's line 5 defense, so he decided to stay out of his own truck entirely?

[Rev.Vassago]

A lot of assumptions are being made from very little information.

It is possible that a pre trip had been done and Williamson passed out, unnoticed, while the driver was doing paperwork.

It is also possible that the driver had stopped by the terminal during a run to get or turn in something and did not "park" instead simply pulled up along side the office, driver's room or whatever and the victim passed out while the driver was gone for a few minutes and while returning to the truck approached it from the rear and therefore had no way to see someone on the ground in front of the truck.

Neither of those scenarios releases the driver from the liability of knowing what obstructions are around his truck. If the second scenario were true, then he would have failed to perform §392.7 prior to operating his CMV. You'll notice that §392.7 states "No commercial vehicle shall be driven", not "No commercial vehicle shall be driven at the beginning of the day".

There is no excuse for not knowing what obstructions are around your truck when taking off from a stop - no matter what the reason for stopping.

[BIG JEEP on 44's]

Neither of those scenarios releases the driver from the liability of knowing what obstructions are around his truck. If the second scenario were true, then he would have failed to perform §392.7 prior to operating his CMV. You'll notice that §392.7 states "No commercial vehicle shall be driven", not "No commercial vehicle shall be driven at the beginning of the day".

There is no excuse for not knowing what obstructions are around your truck when taking off from a stop - no matter what the reason for stopping.

Yep if your gone or been sitting long it warrants a quick walk around , It only takes a minute . When I was at a shipper/receiver I would do a brief check b4 pulling from the dock especially if I had been sitting long enough to hit the sleeper .

[Uturn2001]

Then according to your argument Rev if you were stopped at an intersection waiting, lets say to make a left turn, and had your attention on traffic for a second and someone ran out in front of your truck while your head was turned and you ran over him then you would be at fault and also in violation of 392.7.

If you take the argument you, and others, are attempting to make to its conclusion then drivers would never be able to leave the spot their trucks are parked in because they could never be 100% certain that every obstacle has been removed and no new ones have arisen during the time it would take them to climb into their trucks, bring their log book up to date, release the brakes and proceed.

Please point out to me where it states in any regulation that a driver must do at least a walk around of the vehicle if they are out of the vehicle for any length of time or if a second VI/walk around if the driver has not started driving the vehicle within so many seconds or minutes of completing one.

[Rev.Vassago]

Then according to your argument Rev if you were stopped at an intersection waiting, lets say to make a left turn, and had your attention on traffic for a second and someone ran out in front of your truck while your head was turned and you ran over him then you would be at fault and also in violation of 392.7.

Stopping at an intersection is not the same, but you would still be responsible.

Please point out to me where it states in any regulation that a driver must do at least a walk around of the vehicle if they are out of the vehicle for any length of time or if a second VI/walk around if the driver has not started driving the vehicle within so many seconds or minutes of completing one.

There is no regulation that states that, and nobody made a claim that there was.

Please indicate how you are going to check the items listed in 392.7 prior to operating the CMV without getting out of the vehicle.

[Biscuit Lips]

I am not sure which is worse, that he took the time to send that crap to the C.O.P or the fact that he came here to brag about it? Truck drivers.

[Rev.Vassago]

I am not sure which is worse, that he took the time to send that crap to the C.O.P or the fact that he came here to brag about it? Truck drivers.

He isn't a truck driver. He works for the FMCSA.

[Bandit102]

It was not at a truck stop. It was at their terminal, which is in an industrial area in Las Cruces, right off a very busy street, Avenida De Mesilla. Fleet Pride is right down the street from them on Compress (the cross street) I don't know how many times I've been tooling down the street in my 4 wheeler and almost been creamed by one of these guys flying out of their lot and onto the street. I've literally had my tires squealing from braking so hard on 3 occasions. I had one of them nearly broadside my Freightliner once. Texting on his phones. If not for the train horns, he'd have rolled right out and hit me. I sincerely doubt if any small percentage of these drivers for this particular terminal can speak english in an intelligently conversational manner.

[allan5oh]

"No commercial motor vehicle shall be driven unless the driver is satisfied that the following parts and accessories are in good working order"

Says it all right there. You do not have to check every component of the truck every time you stop to be satisfied it is in good working order.

It all depends on the situation, and we're all speculating at best. What if this guy fell asleep while the driver was finishing up his paperwork, just after a PTI? Or what if his PTI was done 1-2 hours before? All speculation.

Since the guy is dead, we will never know. That's why the driver was not charged.

[Myth_Buster]

cdswans:

I saw that story earlier today and almost posted it. While my intent would have been to raise the issue of an obvious absence of a pre-trip, I had no intention of ratting out the driver or the company as MB has apparently done. I had every confidence there are many astute lawyers in Las Cruces who have picked up on that already.

My intentions were to ensure the police department was aware of the regs. Turns out they called the Sate Police who are still investigating.

At the same time, as cold as it was and as drunk as this guy must have been, I couldn't help but wonder if he didn't get exactly what he was looking for. If that's the case, instead of being paid for services rendered, DATS and driver are going to pay through the nose for this. That's a tragedy. That's why I didn't post it.

I’ll ask you as I asked others: What if the person had been another driver who was hurt, had a heart attack, an epileptic seizure, had slipped and fell, etc., etc., etc. Then what, would it be acceptable, or would you be ashamed to be associated with such an azz?

Uturn2001 is ill informed:

A lot of assumptions are being made from very little information.

It is possible that a pre trip had been done and Williamson passed out, unnoticed, while the driver was doing paperwork.

You see, you’re assuming the man was drunk:

Michael Allen Williamson II, 25, had apparently fallen asleep in front of an 18-wheeler in the parking lot of DATS Trucking, 400 S. Compress. Police said Williamson, who may have been intoxicated, was run over at about 3 a.m. Saturday after the driver, El Pasoan Jesus Cano Garcia, 28, began moving the truck.

Sleeping, may have been intoxicated.

It is also possible that the driver had stopped by the terminal during a run to get or turn in something and did not "park" instead simply pulled up along side the office, driver's room or whatever and the victim passed out while the driver was gone for a few minutes and while returning to the truck approached it from the rear and therefore had no way to see someone on the ground in front of the truck.

The above statement indicates you may not be fully aware of Part 392 function.

There are two instances in the FMCSR where a driver is required to ensure the vehicle is safe before operating the vehicle.

1. Part 392
2. Part 396

Part 392 is CMV operation. Part 392 mandates driver follow local laws, prevent dispatchers from dispatching drivers on runs that require the driver to speed, mandates drivers stop to check cargo, prevents drivers from drinking while on duty or having alcohol or drugs in the vehicle, prevents unauthorized passengers, requires drivers to slow down for railroad crossings,,,, and require safe operation of the vehicle:

§392.7 Equipment, inspection and use.

No commercial motor vehicle shall be driven unless the driver is satisfied that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed:

Service brakes, including trailer brake connections.
Parking (hand) brake.
Steering mechanism.
Lighting devices and reflectors.
Tires.
Horn.
Windshield wiper or wipers.
Rear-vision mirror or mirrors.
Coupling devices.

Part 396 is maintenance related and requires the previous day’s DVIR be examined and the vehicle be in safe condition before driving.

§396.13 Driver inspection.
Before driving a motor vehicle, the driver shall:

(a) Be satisfied that the motor vehicle is in safe operating condition;

(b) Review the last driver vehicle inspection report; and

(c) Sign the report, only if defects or deficiencies were noted by the driver who prepared the report, to acknowledge that the driver has reviewed it and that there is a certification that the required repairs have been performed. The signature requirement does not apply to listed defects on a towed unit which is no longer part of the vehicle combination.

Part 396 also requires a written report of the listing any defects discovered by or reported to the driver:

§396.11 Driver vehicle inspection report(s).

(a) Report required. Every motor carrier shall require its drivers to report, and every driver shall prepare a report in writing at the completion of each day’s work on each vehicle operated and the report shall cover at least the following parts and accessories:

—Service brakes including trailer brake connections
—Parking (hand) brake
—Steering mechanism
—Lighting devices and reflectors
—Tires
—Horn
—Windshield wipers
—Rear vision mirrors
—Coupling devices
—Wheels and rims
—Emergency equipment

(b) Report content. The report shall identify the vehicle and list any defect or deficiency discovered by or reported to the driver which would affect the safety of operation of the vehicle or result in its mechanical breakdown. If no defect or deficiency is discovered by or reported to the driver, the report shall so indicate. In all instances, the driver shall sign the report. On two-driver operations, only one driver needs to sign the driver vehicle inspection report, provided both drivers agree as to the defects or deficiencies identified. If a driver operates more than one vehicle during the day, a report shall be prepared for each vehicle operated.

(c) Corrective action. Prior to requiring or permitting a driver to operate a vehicle, every motor carrier or its agent shall repair any defect or deficiency listed on the driver vehicle inspection report which would be likely to affect the safety of operation of the vehicle.
(c)(1) Every motor carrier or its agent shall certify on the original driver vehicle inspection report which lists any defect or deficiency that the defect or deficiency has been repaired or that repair is unnecessary before the vehicle is operated again.
(c) (2) Every motor carrier shall maintain the original driver vehicle inspection report, the certification of repairs, and the certification of the driver’s review for three months from the date the written report was prepared.

(d) Exceptions. The rules in this section shall not apply to a private motor carrier of passengers (nonbusiness), a driveaway-towaway operation, or any motor carrier operating only one commercial motor vehicle.

Since one is an operational requirement and one is a maintenance requirement it can be argued they are two separate inspections. Hence, any time a driver stops the vehicle, before they start to roll they must meet the requirements of Part 392.7.

I do not know exactly what happened any more than any of you do. There are many possibilities as to how this happened, and while the one others here have indicated is certainly possible so are the ones I outlined as well as many others.

One thing I do know is that a full vehicle inspection is NOT required at the start of a trip/day though. All that is required is that the driver ensures that the vehicle is safe for operation. While I know many drivers who actually do VI's at the start of the day, some choose to do them at the end of the day when they fill out their DVIR. Other drivers choose to do the big VI while they are fueling, if they know they will be doing so fairly soon after starting their day.

No, but a safety inspection per Part 392.7 is required before moving the vehicle again.

Things break in transit; it is common sense to inspect the vehicle each time a drier stops, especially OTR operations where there maybe several hundred miles covered between each stop.

Rawlco is equally ill informed:

Thank you U-turn for pointing that out. I only pre-trip once per day, plus I pre trip each trailer that I hook to. I do not spend 15 minutes checking everything after every liffle 5 minute stop.

Part 392.7 requires an additional inspection, not to mention part 392.9:

§392.9 Inspection of cargo, cargo securement devices and systems.

(a) General. A driver may not operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless—
(a)(1) The commercial motor vehicle’s cargo is properly distributed and adequately secured as specified in §§393.100 through 393.136 of this subchapter.
(a)(2) The commercial motor vehicle’s tailgate, tailboard, doors, tarpaulins, spare tire and other equipment used in its operation, and the means of fastening the commercial motor vehicle’s cargo, are secured; and
(a)(3) The commercial motor vehicle’s cargo or any other object does not obscure the driver’s view ahead or to the right or left sides (except for drivers of self-steer dollies), interfere with the free movement of his/her arms or legs, prevent his/her free and ready access to accessories required for emergencies, or prevent the free and ready exit of any person from the commercial motor vehicle’s cab or driver’s compartment.

(b) Drivers of trucks and truck tractors. Except as provided in paragraph (b)(4) of this section, the driver of a truck or truck tractor must—
(b)(1) Assure himself/herself that the provisions of paragraph (a) of this section have been complied with before he/she drives that commercial motor vehicle;
(b)(2) Inspect the cargo and the devices used to secure the cargo in the first 50 miles after beginning a tripse any adjustments to be made to the cargo or load securement devices as necessary, including adding more securement devices, to ensure that cargo cannot shift on or within, or fall from the commercial motor vehicle; and
(b)(3) Reexamine the commercial motor vehicle’s cargo and its load securement devices during the course of transportation and make any necessary adjustment to the cargo or load securement devices, including adding more securement devices, to ensure that cargo cannot shift on or within, or fall from, the commercial motor vehicle. Reexamination and any necessary adjustments must be made whenever—
(b)(3)(i) The driver makes a change of his/her duty status; or
(b)(3)(ii) The commercial motor vehicle has been driven for 3 hours; or
(b)(3)(iii) The commercial motor vehicle has been driven for 150 miles, whichever occurs first.
(b)(4) The rules in this paragraph (b) do not apply to the driver of a sealed commercial motor vehicle who has been ordered not to open it to inspect its cargo or to the driver of a commercial motor vehicle that has been loaded in a manner that makes inspection of its cargo impracticable.

Part 392: Driving of commercial motor vehicles

Part 396: Inspection, repair, and maintenance

As mentioned Part 392 and 396 are apples and oranges; therefore, the requirements in Part 392.7 are not the same as in Part 396.13.

Uturn2001 in denial says:

Then according to your argument Rev if you were stopped at an intersection waiting, lets say to make a left turn, and had your attention on traffic for a second and someone ran out in front of your truck while your head was turned and you ran over him then you would be at fault and also in violation of 392.7.

No, it may be a violation of local laws per Part 392.2 as pedestrians always have the right-of-way.

§392.2 Applicable operating rules.

Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a regulation of the Federal Motor Carrier Safety Administration imposes a higher standard of care than that law, ordinance or regulation, the Federal Motor Carrier Safety Administration regulation must be complied with.

Uturn2001 continues with the triad:

If you take the argument you, and others, are attempting to make to its conclusion then drivers would never be able to leave the spot their trucks are parked in because they could never be 100% certain that every obstacle has been removed and no new ones have arisen during the time it would take them to climb into their trucks, bring their log book up to date, release the brakes and proceed.

No one is saying the driver has to be 100% certain. The message is get off your azz and walk around the truck to make sure it’s safe.

Please point out to me where it states in any regulation that a driver must do at least a walk around of the vehicle if they are out of the vehicle for any length of time or if a second VI/walk around if the driver has not started driving the vehicle within so many seconds or minutes of completing one.

§392.7 Equipment, inspection and use.

No commercial motor vehicle shall be driven unless the driver is satisfied that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed:

Service brakes, including trailer brake connections.
Parking (hand) brake.
Steering mechanism.
Lighting devices and reflectors.
Tires.
Horn.
Windshield wiper or wipers.
Rear-vision mirror or mirrors.
Coupling devices.

If you’ve gone through a safety lane or your co-driver has performed the checks as required and you’re satisfied the vehicle is safe… No problem. Otherwise check the components listed.

Biscuit Lips do you also go by Rock Jockey?

I am not sure which is worse, that he took the time to send that crap to the C.O.P or the fact that he came here to brag about it? Truck drivers.

Are you willing to learn from the other driver’s mistakes? I hope so. FYI, Myth_buster is not a truck driver…..

Be safe.

[possum]

It wont kill you to take a quick walk around your truck but it may kill someone else if you don't. I was loading some trees one time and the owners to young boys were playing all over that place and when I got ready to go I walked around the truck and one of them was setting in front of my truck and I didn't see the other. They were playing hide and seek and thats where he wonted to hide. He was only about 8 or so. I took him back to his dad and asked him to find the other one before I pulled out. All I am saying is take the time to look. I would have never got over that if I had not looked and something would have happened to that boy.

[Fredog]

this is what's wrong now a days, it's always someone elses fault. why should a drunken slob be responsible for his own actions? let's just blame it on the truck driver, maybe if the low-life drunken slob would have stayed home to get drunk. he would still be alive, how about that? the truck driver broke the law by not walking around his truck? what about breaking the law by being drunk in public? or sleeping in a parking lot? are those things okay? oh that's right, a truck driver is held to a higher standard and should be responsible for everyone elses behavior. Makes me sick.

[Rev.Vassago]

why should a drunken slob be responsible for his own actions? Let's just blame it on the truck driver, maybe if the low-life drunken slob would have stayed home to get drunk. he would still be alive, how about that? what about breaking the law by being drunk in public? or sleeping in a parking lot? are those things okay?

Dead men are not prosecutable. He already paid the price for his crime.

The fact that the dead man broke the law does not forgive the truck driver from breaking the law as well. "But he did it first!" does not apply.

oh that's right, a truck driver is held to a higher standard and should be responsible for everyone elses behavior. Makes me sick.

CDL holders are, and should be, held to a higher standard. That's why we have specific regulations and licensing that govern our actions. Regulations such as 392.7.

[Fredog]

Dead men are not prosecutable. He already paid the price for his crime.

The fact that the dead man broke the law does not forgive the truck driver from breaking the law as well. "But he did it first!" does not apply.

CDL holders are, and should be, held to a higher standard. That's why we have specific regulations and licensing that govern our actions. Regulations such as 392.7.

the truck driver did not break the law, there is no law that says you have to walk around your truck every time you stop, it's a good thing to do, but not required by law, as someone stated, the guy may have just stopped for a minute to do paperwork, or to make a phone call,you dont have to do a pre-trip in that case, but hey, lets blame the driver and sue his company, they have plenty of money. now if you will excuse me, I have to go make sure no one is sleeping in my driveway so my son can go to work without running over anyone.

[Rev.Vassago]

there is no law that says you have to walk around your truck every time you stop

The regulation has been cited several times in this thread. 392.7 states that no CMV shall be operated until the driver is satisfied that the items listed are in proper operation, and 392.9 states that every time a change of duty status occurs, cargo and load secuerment devices must be checked. If you are doing those two things, then you are clearly walking around your CMV, and you're seeing the sleeping guy in front of your truck.

I also think it goes without saying that "I didn't see him" is probably the lamest excuse ever for running a guy over and killing him.

[Fredog]

The regulation has been cited several times in this thread. 392.7 states that no CMV shall be operated until the driver is satisfied that the items listed are in proper operation, and 392.9 states that every time a change of duty status occurs, cargo and load secuerment devices must be checked. If you are doing those two things, then you are clearly walking around your CMV, and you're seeing the sleeping guy in front of your truck.

I also think it goes without saying that "I didn't see him" is probably the lamest excuse ever for running a guy over and killing him.

if I stop for 2 minutes to make a phone call a change of duty status has not occurred.
So what do you think they should do to the truck driver? charge him with murder? manslaughter?