State v. Ford, 120

• Court: Court of Appeals of Kansas
• Writing for the Court: PER CURIAM
• Docket Number: 842,841,120
• Parties: State of Kansas, Appellee, v. Nicholas Ford, Appellant.
• Decision Date: 05 February 2021

State of Kansas, Appellee,
v.
Nicholas Ford, Appellant.

Nos. 120, 841, 120, 842

Court of Appeals of Kansas

February 5, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Johnson District Court; Robert G. Scott, magistrate judge.

David S. Bell and Sheena Foye, of Wyrsch Hobbs & Mirakian, P.C., of Kansas City, Missouri, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Malone, P.J., Hill and Buser, JJ.

MEMORANDUM OPINION

PER CURIAM

Nicholas Ford appeals several convictions related to operating a truck towing a fifth wheel recreational vehicle (RV) without a commercial driver's license (CDL). Ford raises several arguments on appeal. First, he asserts the district court miscalculated the weight of his vehicles for the purposes of determining whether he was subject to the CDL requirements. Alternatively, he argues the CDL requirements did not apply to him because he was engaged in private noncommercial use of the RV and because an exemption for new RVs applied to him. Lastly, Ford claims that if the new RV exemption does not apply to him, the exemption violates his equal protection rights as a used RV seller.

Upon our review, we find no error and affirm the district court's judgment that Ford operated a vehicle without the required CDL.

Introduction

Ford owns Central RV where he buys, sells, repairs, and rents fifth wheel RVs and travel trailers. A fifth wheel RV is a trailer that rests on a unit attached to a towing vehicle, like a truck. Ford appeals from convictions in two separate cases related to driving a truck towing a fifth wheel RV without a CDL. Each case presents the two-fold question of whether the vehicles Ford operated met the statutory definition of a "commercial motor vehicle." If they did, then the inquiry becomes whether Ford was required to have a CDL while operating the vehicles or whether he was exempt from the CDL requirements.

Kansas has adopted the Uniform Commercial Driver's License Act (Act), K.S.A. 8-2, 125 et seq., and it governs the operation of commercial motor vehicles. The Act defines "commercial motor vehicle" in relevant part as a vehicle used to transport passengers or property with a gross vehicle weight rating of 26, 001 or more pounds. K.S.A. 2020 Supp. 8-2, 128(f). The gross vehicle weight rating of a combination vehicle-like the trucks and fifth wheel RVs Ford operated-is the gross vehicle weight rating of the power unit plus the gross vehicle weight rating of the towed unit. K.S.A. 2020 Supp. 8-2, 128(p). The Act is to "be liberally construed to promote public health, safety and welfare." K.S.A. 8-2, 126(b).

Some vehicles are not included in the Act, including "motor vehicles, which would otherwise be considered commercial motor vehicles, if such vehicles are used solely and exclusively for private noncommercial use and any operator of such vehicles." K.S.A. 2020 Supp. 8-2, 127(d). The Federal Motor Carrier Safety Administration (FMCSA), an agency of the United States Department of Transportation, also granted a limited exemption to the CDL requirements for transport of newly manufactured RVs from manufacturing site to dealer location. 49 U.S.C. § 113(a) (2018); Commercial Driver's License Standards: Recreation Vehicle Industry Association Application for Exemption, 80 Fed. Reg. 18493 (Apr. 6, 2015).

The driver of a commercial motor vehicle must have and possess a CDL. K.S.A. 2020 Supp. 8-2, 132(a). Drivers of commercial motor vehicles are also subject to numerous federal and state laws and regulations. Relevant to this appeal are regulations on window tinting (49 C.F.R. § 393.60[d]), medical examiner certificates (49 C.F.R. § 391.41), breakaway and emergency braking (49 C.F.R. § 393.43), and fire extinguishers (49 C.F.R. § 393.95[a]). See K.A.R. 82-4-3g (adopting 49 C.F.R. § 391 in relevant part); K.A.R. 82-4-3i (adopting 49 C.F.R. § 393 in relevant part).

Many of the issues Ford raises on appeal involve questions of interpretation of the previously mentioned statutes and regulations. These issues present questions of law over which appellate courts have unlimited review. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). We will separately address the issues Ford raises on appeal.

Factual and Procedural Background

In the district court, Ford stipulated that he did not have a CDL at relevant times in this case. While in business at Central RV, Ford has obtained over 1, 000 VIN inspections for his used RVs. The VIN inspection station previously was located adjacent to Central RV. When Ford requested a VIN inspection, an inspector would walk over to his lot and conduct it. In late 2016, the station stopped conducting inspections. Consequently, Ford began driving the RVs to Olathe, about 30 miles away, for VIN inspections.

Beginning in 2017, Ford testified that he had an ongoing disagreement with the Kansas Highway Patrol (KHP), the agency that conducts VIN inspections. Ford described an incident in February 2017 when he brought a title to Trooper David Albers at the Olathe inspection station. Ford testified that he provided Trooper Albers with a clean South Dakota title, but the trooper issued him a salvage title in return.

The next day, Ford said his business was "raided" by the KHP and the Kansas Department of Revenue (KDOR). Ford testified that officials came into his office and said, "[Y]ou'll do what I say or you get a $750 fine each time you don't." For his part, Trooper Albers testified that it was not a raid. He explained that the KHP accompanied the KDOR on an inspection at Ford's business to ensure that Central RV was complying with dealer licensing. At trial, Ford's counsel argued that these incidents showed the KHP was biased against Ford and targeted him for selective prosecution.

Ford brought a fifth wheel RV to the Olathe inspection station in February 2017. Trooper Albers saw Ford and believed that the vehicle combination Ford was operating that day made him subject to the commercial motor vehicle statutes. As a result, he concluded that Ford needed a CDL to operate the vehicle. Trooper Albers directed two troopers who specialize in CDL matters to inform Ford that he was subject to those rules and warn him that he may be stopped and ticketed. The troopers also offered Ford resources in order to comply with the CDL statutes.

A KHP trooper issued Ford an out-of-service order on March 6, 2017, for operating a commercial motor vehicle without a CDL. The out-of-service order meant that Ford could not operate that vehicle again until he obtained a CDL.

Trooper Joshua Weber observed Ford driving westbound on K-7 highway on March 30, 2017. Ford was returning to Central RV after obtaining a VIN inspection for a fifth wheel RV. Trooper Weber testified that the truck was a 5500 series Chevy ton-and- a-half truck pulling a very large RV with a "not for hire" sign on the truck, and dealer plates on the trailer. Trooper Weber stopped Ford to conduct an inspection because he believed that Ford was operating a commercial motor vehicle.

Decals on the truck and trailer indicated gross vehicle weight ratings of 19, 500 pounds for the truck and 14, 000 pounds for the trailer. Accordingly, Trooper Weber believed that Ford needed a CDL to operate the vehicle. During his inspection, the trooper found several violations of FMCSA regulations including failure to possess a medical examiner's certificate or a fire extinguisher. Ford's window tint tested at 16 percent light transmission, which was lower than the 70 percent light transmission required. Additionally, the trailer's breakaway protection did not work. Finally, Trooper Weber noted that Ford was driving in violation of the March 6, 2017 out-of-service order. Although Ford told the trooper he did not believe that he needed a CDL, Trooper Weber cited Ford for the CDL violation and out-of-service order violation.

Trooper Weber did not weigh the truck or trailer before issuing the ticket to Ford. According to Ford, he weighed the vehicle and trailer after the traffic stop and they had a combined weight of 23, 350 pounds.

At trial, Trooper Weber explained why he thought Ford was driving a commercial motor vehicle. In addition to the dealer plates and not for hire decal, the trooper also observed that the VIN inspection paperwork for the RV was titled in the name of Ford's business. As a result, Trooper Weber believed that Ford was furthering his business by transporting the RV and, thus, engaging in commerce.

Ford continued driving RVs to the Olathe inspection station despite not obtaining a CDL. Trooper Albers observed Ford arriving at one of these inspections with a very large truck and RV combination on May 23, 2017. The trooper described the truck as "just shy of being a semi." Trooper Albers looked up the gross weight vehicle rating of the trailer and it was 18, 000 pounds. He concluded that the gross vehicle weight rating of the truck and trailer were over the 26, 001-pound threshold in the CDL regulations. Trooper Albers believed that Ford was operating a commercial vehicle because it was to be titled in the name of Central RV which is a public seller of used RVs. The trooper cited Ford for operating a commercial motor vehicle without a CDL. Although Trooper Albers did not personally weigh Ford's truck or the fifth wheel RV, Ford claimed the truck and trailer weighed 23, 400 pounds or less.

The State charged Ford with six counts stemming from the March 30, 2017 incident: driving a commercial motor vehicle without a CDL; driving a commercial motor vehicle in violation of an out-of-service order; operating a commercial motor vehicle without having a medical examiner's certificate; operating a motor vehicle with improper breakaway or emergency brakes; operating a commercial motor vehicle with excessive window tint; and...