Newswire: ...engineer arrested. Something weird here or not?

[dekemd]

QUOTE: Originally posted by vandenbm

Maybe there needs to be better education or information exchange between the FRA and police agencies to improve the handling of grade crossing investigations, especially in the time right after the accident when the federal officials aren't there yet.

That is a good idea. The FRA and the railroads need to come up with some kind of brochure or form that spells out who has jurisdiction for railroad related events. It also needs to give instructions as to what they want local officers to do and to not do when responding to accidents, etc. involving trains.

Erik has a point about the breathalyzer. It would be much better for the first officer on the scene to administer one. A one hour wait can drastically change blood/alchohol results. Asking for names and addresses is pretty common in accident investigation. I don't see the harm in traincrew giving that information to officers. As a Sheriff's Deputy, I don't investigate traffic accidents. I do respond to them, I just don't do the accident reports. That is the Highway Patrol's job. However, if I am first on the scene, I will get everyones ID or name and address, and identify drivers, passengers, witnesses, etc. When the HP gets there, I point out who is who and give him the info I've collected. This saves him time and allows him to complete his investigation quicker. I would probably do the same for an accident involving a train. When the RR police or FRA investigators showed up, I would turn over the info to them and let them do their job.

[gabe]

QUOTE: Originally posted by Limitedclear

QUOTE: Originally posted by gabe

QUOTE: Originally posted by Limitedclear

As the other railroaders have said, only limited information need be given to local authorities. Railroads are Federal jurisdiction and only company officials or FRA or State DOT Rail officials can demand more than the very basics.

As MC points out, in extreme circumstances the cops involved might even be on the hook for false arrest or false imprisonment...

LC

LC,

I am not challenging you on this one, but this does come as a bit of a surprise to me. I know a State reg or action cannot interfere with federal regs or decisions; but, I didn't know Feds had exclusive jurisdiction over rail property (as a State prosecutor, I convicted IDIOTS who vandalized rail cars every other day—the judge always said I had a particular zeal for that crime).

If an engineer gets in a fight with his trainmaster and deliberately runs him over (I know that is a difficult to imagine hypo, but it is too early for me to think of a better one), surely the State court would have jurisdiction, no?

I would also think the cops would need a verifiable address to reach someone who is a witness to an accident (or the crime of running a grade crossing). Criminals aren't the only ones who can be arrested; witnesses can too if their presence at trail is in question.

Anyway, I am just curious if you have any more information on your statement. I have always found dual-sovereignty interesting.

Gabe

Gabe-

See my response above. The case law is quite clear on the pre-emption in railroad safety matters by FRA under various acts including the Railroad Safety Act and the Interstate Commerce Commission Termination Act. As to criminal prosecution I'd guess there would be concurrent jurisdiction in most places I have prosecuted crimes against and occurring on railroad property before as well. However, grade crossing and trespasser incidents where the train crew is concerned is a very jealously protected zone.

LC

LC,

This is incredibly interesting to me. I think I might even do a law journal article on it. So, if an engineer intentionally hits someone with his train the FRA has exclusive jurisdiction? I can't wait to get some free time to research this.

Also, the poster who pointed out that the railroad police get their checks from the railroad had a good point, doesn't that seem a little scarry that the people investigating an accident in which the railroad might be liable is working for the railroad?

Once again, I completely am not challenging your position on this, I am just really curious about it.

Gabe

[mudchicken]

Intentionally steer a train at someone? [(-D][(-D][(-D].....unless the train moved from a stationary position, that's a stretch.......Most railroad policemen came from the other side of the fence and work with OLI coordinated and policeman's association meetings/ events to improve interagency cooperation. That being said, you still encounter the "holier-than-thou's" far to often that are sadly lacking in the training department and show up full of pre-conceived false knowledge. I can see where both sides would do well to leave the egoes checked at the house (Law Officials Code of Ethics in play here).

[mudchicken]

QUOTE: Originally posted by richardy

At most grade crossings (rails that were in place before the roadway came across), doesn't the property belong to the railroad with an easement granted by the railroad for the roadway to cross?

Richard

Richard:

Depends on the state and the crossing. In NE you are probably correct. In CA you are better than 50% not correct. In Iowa, you do a group hug, hold a town meeting and elevate the level of confusion with no solution[|(]. Color of title can be a really wierd thing at crossings, especially when you get into deed restrictions, grants, covenants, easements, licenses, decrees, ordinances, charters and that kind of fun stuff (mudchicken mind-candy). Best to look at any crossing and be sure of the facts first.

Mudchicken[D)][D)][D)]

[dekemd]

equinox,

You're not the paranoid type are you?[:)] Yes, there are some cops who have harassed people for taking pictures or just sitting somewhere minding their own business, but that is mostly blown out of proportion. Several people on this forum have been question by police, RR or otherwise, when they weren't doing anything. However, in any given day how many times do you think a cop has seen someone sitting in a park and just driven on by? I would guess many thousands of times a day. You also don't see the other side of the coin. Busy-Body civilian sees someone standing near the train tracks for over an hour. BB calls the police and reports a suspicious individual near the tracks and wants an officer to check him out. Ten minutes later, the cop still hasn't shown up, so BB calls back. Another 15 minutes goes by, BB calls again. Then BB calls the Sheriff or Police Chief or Mayor's office and complains that the police are not doing their job. Sheriff/Chief/Mayor orders officer to go investigate guy next to track.

On another note, just because an officer comes up to you and asks you what you're doing, does not mean he's harassing you. He just wants to make sure you're not up to no good. What happens, when the police don't check out somebody and they commit some crime? The first thing said is "the guy was sitting there for over an hour, why didn't the cops check him out?" Heads you lose, tails you lose.

MC hit it on the head about checking the egos at the door. There are some officers out there who think everyone has to do what they tell them. These officers get mad when people refuse or question them. Officers with the "I'm the law" attitude give us all a bad name. An "I'm the law" cop having to deal with an "you have no authority on the RR" engineer leads to a bad situation even though the engineer is right. Fortunately, most of the "I'm the law" cops, don't last very long. They either see the error of their ways, or get fired. There are some exceptions, but generally they figure out that being nice to people makes their job a whole lot easier.

[arbfbe]

Engineers do not give their driver's license to the officer account the engineer's have seen points given them by the judicial system, had their auto insurance cancelled or rates increased and no, you do not NEED to be a licensed driver to operate a locomotive and attached train. Who is at fault at grade crossing accidents most times, anyway? Probably not the train crew........

Engineers do not give their home addresses and home phone numbers to the nice officer because those accident records are available to family members of the inujured or dead parties and there are incidents of harrassment and assault to involved train crew members. Let them go to the railroad office and talk to the railroad lawyers.

I have never had the local police officer ask for a breathalayzer. I guess I would have to decline to participate until he could provide a very good reason why he suspected I might be under the influence.

I do not see how the officer can come aboard the locomotive unless he would suspect there was a chance of injury to someone in the cab. There are no tapes for him to evaluate up there. His attempt to download any data in the event recorder would likely destroy that information.

I saw an engineer taken from a locomotive in hand cuffs and at gun point for blocking a crossing while doing an air test at the south end of Rice Yard in Denver once. Now that was an education. What if the engineer had slipped while trying to dismount the engine with his hands cuffed behind his back, fell on the officer and the gun went off?

Bottom line is the train crew probably knows more about grade crossing accidents than the local officer does. Perhaps law enforcement should listen to them.

[Anonymous]

Some not real valid points in these posts:
1) "Engineers do not give their driver's license to the officer account the engineer's have seen points given them by the judicial system, had their auto insurance cancelled or rates increased and no, you do not NEED to be a licensed driver to operate a locomotive."

This was already addressed, and it's partially correct: You don't need to provide a driver's license to an officer if you aren't operating a motor vehicle at the time of an accident. You DO have to provide enough information to identify yourself, especially if a fatality is involved. A rail company ID is probably sufficient.

2) "I have never had the local police officer ask for a breathalayzer. I guess I would have to decline to participate until he could provide a very good reason why he suspected I might be under the influence."

In this particular case, I would explain that it is routine for participants in accidents to be tested for alcohol use. The victim in this case was probably tested for alcohol use at the hospital. An accident investigation, from a cop's point of view, is to find a cause for the accident and try to fix blame. Chances are excellent in this particular case that the engineer would have blown an alcohol free Drager. That would have ruled out impairment on his part and cleared him of wrongdoing.

3) I saw an engineer taken from a locomotive in hand cuffs and at gun point for blocking a crossing while doing an air test at the south end of Rice Yard in Denver once. Now that was an education. What if the engineer had slipped while trying to dismount the engine with his hands cuffed behind his back, fell on the officer and the gun went off?

That would have been pretty ugly. It also would have been pretty ugly if the train blocked an ambulance trying to reach a call. (It's happened to me personally twice.) Or a fire truck trying to get to a fire. Or a police car trying to reach the scene of an accident. That's why a lot of states have laws setting time limits on how long a train can block a crossing. And yes, a cop CAN make an arrest on a violation of law that he observes.

4) "Bottom line is the train crew probably knows more about grade crossing accidents than the local officer does. Perhaps law enforcement should listen to them."
We do. We also listen to truck drivers who know more about driving trucks than we do, and still manage to crash. We listen to boat operators who know a lot about handling boats, but not neccesarily much about avoiding railroad bridges. We listen to pilots who, if still living, know a lot about flying but not much about reading a fuel gauge before they go down into a neighborhood. And we also listen to victims. Lots of them. It's part of trying to figure out what caused an accident and who is to blame.

A couple of extra points here. First, a license or certification to operate a motor vehicle (or a locomotive, or a plane, or a ship) is a privelege, not a right. There's a difference. A privelege can be withdrawn much more easily than a right. We have all heard about airline pilots climbing up into perfectly good airplanes perfectly impaired. They seem surprised and disappointed when their driver's licenses get suspended. Why? Because their behavior on the job is just as likely to spill over into their behavior off the job.

Second, on rare occasions, the locomotive engineer actually IS at fault because he IS impaired. Anyone remember Ricky Gates? If not, dig back into these threads- he's been brave enough, and honest enough, to talk at length about the role drugs played in his accident.

Locomotive engineers are human. They make human mistakes. They have human failings. When they do their jobs, they are expected to do them well and safely. It's up to law enforcement- local, county, state, and the Feds- to pick up the pieces after an accident, and either clear or cite individuals at fault.

The railroad will probably be sued in this case....they always are. Tell me, do you really think the engineer's conduct in this particular case is going to aid or hinder the defense the railroad has to put up? Think about it for a second- the jury is going to be made up of locals who probably don't know squat about trains. How do you think THEY will respond to an engineer who arrogantly tells them that HE doesn't have to answer questions "because he's protected by the railroad, and he's been advised he doesn't have to answer a police officer's questions."

Folks, ya gotta think through cause and effect. I do every day. I get paid to pick up stupidly criminal people and put them in jail. (The smart or wealthy criminals, unfortunately, spend less time in jail than it takes for me to fini***he paperwork.) I also get paid to protect innocent people... like railroad engineers. If that means I have to have the engineer blow into a Drager machine to bolster his defense, I'm going to do it. And if he is indeed drunk or otherwise impaired, I'm going to arrest him for it. The people in my county expect and pay me for that kind of protection... as does industry (like the railroad).

Erik

[Anonymous]

I personally had a run in with some stupid cop when I put a car on the ground. He was listening to our road channel and heard me report the mishap to the D.S. (picking up enrout from a small yard). A foamer cop! huh! I guess that Cletus promptly hopped in his little car and scurried to the scene of the accident. He asked me what was going on and I replied "what the f---- does it look like?" He asked if there was any hazmat involved and I answered NO. I then proceeded to tell him to leave the property and go to the yard office. He was on private property! He stood there for awhile and I went back to the head end.
I guarentee that no stupid cop will draw any bodily emissions or fluids from me without the presence of a company official, obtain the event recorder, or board my train (unless firearms are drawn). They have no right, no reason. I don't give a rip if it is CSI Miami. Answer...NO!
Annother occasion. Went to pick up a train on a foreign line. It was tied down, and the whistle on a trailing unit was stuck on....how, I don't know. It was like that when we arrived. Soon the cops showed up. This stupid *** climbs up on the engine. I didn't say he could come up. The hogger was trying to get to the horn cutout (90MAC) kind of a climb. This dummie cop starts pushing in buttons in the cab......Whoa! I told him that he wasn't qualified to touch anything on that loco and that we were handling it. I also told him that it is a (I think) 10,000 dollar fine and FRA violation for a non qualified individual to operate the controls of an engine, not to mention screwing with the controls while an employee is "in-between".
Bottom line, I don't run around trying to arrest people and cops should leave the RRing to the professionals. Cops get irate usually when asked questions about what they're doing. They don't need to question us. Leave that to the pros. There have been a few cool ones that have helped. One was willing to help me change a knuckle (I didn't need it, but, the thought was nice). Annother gave me a ride back to head end. That was cool. They respected my job and let me do it. As long as they know where their authority ends, I'm cool.

[fievel]

I watched the local news video of the engineer in handcuffs. He didn't appear to
be angry. However, I feel that nobody should be above the law,including RR
employees. Law and ORDER must be maintained in our society. Yes,some cops
are rude. But some RR employees can be rude,too. Accident investigations
shouldn't be hindered. Things run much more smoothly when you cooperate
with the police,instead of attempting to agitate them, and then "hiding" behind
a federal law. Kind of reminds me of a spoiled child sticking out his tongue,
while cling to his mommy's leg. Sad.[V]

[Anonymous]

I don't stick my tongue out at the cops while clinging to mommy's leg. Local cops are simply not qualified to do many of the things that they think they are. Railroad is one of these examples. Their job is to get medical attention for those whom need it, keep order, and protect the scene until the people who do know what needs to be done arrive. Besides, let them cuff me and haul me off. I will be on continuos time and will make more than the cop that hauled me off anyway. These guys tried to haul an engr off once for blocking a crossing. The train is the condr's responsibility........ooops. Fievel; were you aiming the mommy's leg thing at me?

[Anonymous]

QUOTE: Originally posted by gabe

QUOTE: Originally posted by Limitedclear

QUOTE: Originally posted by gabe

QUOTE: Originally posted by Limitedclear

As the other railroaders have said, only limited information need be given to local authorities. Railroads are Federal jurisdiction and only company officials or FRA or State DOT Rail officials can demand more than the very basics.

As MC points out, in extreme circumstances the cops involved might even be on the hook for false arrest or false imprisonment...

LC

LC,

I am not challenging you on this one, but this does come as a bit of a surprise to me. I know a State reg or action cannot interfere with federal regs or decisions; but, I didn't know Feds had exclusive jurisdiction over rail property (as a State prosecutor, I convicted IDIOTS who vandalized rail cars every other day—the judge always said I had a particular zeal for that crime).

If an engineer gets in a fight with his trainmaster and deliberately runs him over (I know that is a difficult to imagine hypo, but it is too early for me to think of a better one), surely the State court would have jurisdiction, no?

I would also think the cops would need a verifiable address to reach someone who is a witness to an accident (or the crime of running a grade crossing). Criminals aren't the only ones who can be arrested; witnesses can too if their presence at trail is in question.

Anyway, I am just curious if you have any more information on your statement. I have always found dual-sovereignty interesting.

Gabe

Gabe-

See my response above. The case law is quite clear on the pre-emption in railroad safety matters by FRA under various acts including the Railroad Safety Act and the Interstate Commerce Commission Termination Act. As to criminal prosecution I'd guess there would be concurrent jurisdiction in most places I have prosecuted crimes against and occurring on railroad property before as well. However, grade crossing and trespasser incidents where the train crew is concerned is a very jealously protected zone.

LC

LC,

This is incredibly interesting to me. I think I might even do a law journal article on it. So, if an engineer intentionally hits someone with his train the FRA has exclusive jurisdiction? I can't wait to get some free time to research this.

Also, the poster who pointed out that the railroad police get their checks from the railroad had a good point, doesn't that seem a little scarry that the people investigating an accident in which the railroad might be liable is working for the railroad?

Once again, I completely am not challenging your position on this, I am just really curious about it.

Gabe

Gabe-

You are mis-stating what I said.

FRA has exclusive jurisdiction over railroad safety. Criminal jurisdiction is concurrent. Accordingly, your hypothetical engineer could well be prosecuted. That is completely distinguishable from investigations concerning railroad safety including the original purpose of this discussion concerning what rights the local police have concerning identification.

Despite railroad police being employed by the railroad, they are sworn law enforcement officers. They are therefore sworn to uphold the law regardless of whom is signing their check.

LC

[dekemd]

I don't see how an engineer giving his name and address could put points on his driver's license. Points only go on your license when you are charged and CONVICTED of a driving offense. At least that is how the law is my state. If I arrested someone for DUI, but they are aquitted at trial, no points, no insurance increase. The judicial system CANNOT put points on your license unless you are convicted of something.

As for boarding an engine. I would not without permission, unless I had probable cause that one of the traincrew had committed a crime and they refused to come down and talk to me. Ironken's story about the cop pushing buttons can be summed up in one sentence: That cop is an IDOIT!

I probably would not ask the crew to take a breathalyzer unless I could smell alcohol on their breath. If they refused, I would probably try to contact the RR police and advised them of what I had, and see how they wanted to proceed.

Like Erik, I've seen emergency vehicles stuck at crossings. A call to the railroad will letting them know of the emergency will usually get the train moving. I once drove to the headend and told the crew personally that there was a bad accident that the ambulances and fire department were trying to get to. He said they couldn't move. I asked him is they could break the train at that crossing which was about 3/4 of the way toward the rear. The conductor said they could, so he got in the car, and I gave him one heck of a ride, with blue light and sirens, back to the crossing. Once the ambulances had come back through with the victims, the train was put back together, and I drove the conductor back to the headend. He said the return trip was not as fun though. If it had not been an emergency, they could have blocked the crossing all day and I wouldn't have cared.

It all goes back to attitude. A cop with a good attitude and a train crew with a good attitude, can work things out so everyone is happy. A cop with a bad attitude and a traincrew with a bad attitude can make a situation very ugly.

[gabe]

QUOTE: [
Gabe-

You are mis-stating what I said.

FRA has exclusive jurisdiction over railroad safety. Criminal jurisdiction is concurrent. Accordingly, your hypothetical engineer could well be prosecuted. That is completely distinguishable from investigations concerning railroad safety including the original purpose of this discussion concerning what rights the local police have concerning identification.

Despite railroad police being employed by the railroad, they are sworn law enforcement officers. They are therefore sworn to uphold the law regardless of whom is signing their check.

LC

LC,

That is why I am kind of confused here. If local authorities have concurrent jurisdiction, then they certainly can take any reasonable actions to investigate a possible crime.

I completely understand and agree with your statement concerning federal preeminence regarding rail safety. But, the officer who wants the engineer to take a breathalyzer could care less about rail safety—he is concerned about the State “crime” of negligent or reckless homicide.

Stated syllogistically:

If a State has jurisdiction to charge an engineer for intentionally running someone over, the State would also have jurisdiction to charge an engineer for negligently running someone over.

If the State court has jurisdiction, they have the right to investigate crime and obtain a Breathalyzer before evidence is compromised. They also would have a right to obtain the engineer's address so as to be able to investigate for a possible crime.

Gabe

P.S. For the record and for all the engineers out there, I am fully aware of the absurdity of 99% of the Breathalyzer claims and am quite willing to concede that most of the requests are bogus. However, it is quite another thing to say the State may not investigate crime in circumstances that are not so bogus.

It seems to me it the engineer stubbles out of the cab, slurs his words, and smells of alcohol, the State should have the right to investigate a possible crime.

[fievel]

No, Ironken, I wasn't referring to you. It was a cheap shot on my part to use
the expression about "mommy's leg". I'm sorry. [#oops]

I realise it is stressful at any incident, but even if an officer is out of line
or jurisdiction,there isn't much point in alienating them by calling them
foamers or Barney Fife.
Perhaps railroad management should begin a campaign to coordinate
with local police departments concerning such issues as who is in
charge on RR property.

[edblysard]

dekemd, Gabe...
and all the cops here...
One of the first things the RR cops, FRA and the trainmaster will do in any grade crossing accident is call for the wizz wagon...dual purpose is to either prove the crew was under the influence, there by dumping liability for everything on the crew, and or to cover the crews butt when the victim or survivors claim the crew or engineer is drunk and they were not.

They check for everything,including OTC drugs...if your taking a OTC antihistimine like Sudafed or Clairatin(sp), anything, you have to advise the superintendent or your direct supervisor of it before you go on duty.

And you better have a letter in your personel file with a copy of a doctors script if you take any prescription drug, even something like Lipitor.

No, you dont have to have a state drivers license to operate a locomotive, just your federal cert...but, on rare occasions, where a engineer did give the cops his license, the accident info went on his driving record, and his automobile insurance was canceled....

Thats most of the rub with giving it up, insurance companies share claim info, and once its there, your stuck with it, even a court order to remove the report is usually ignored..

One of our engineers was in a grade crossing accident, noi fatalities or injuries, but the kids car was totaled...the DPS Trooper who responded demanded the engineers TDL, he refused, but after cuffing him and putting him in the patrol unit, our engineer gave in, provided the Trooper with it...later, the kids parents filed a claim against the engineers auto insurance for the car, they got his TDL#, address, the works from their copy of the Troopers accident report.
His insurance company cancled his policy, and he cant buy insurance anywhere from anyone, not even high risk, just drive back and forth to work stuff.
His wife has to bring him to work, and pick him up.

He has a court order to remove the report from his driving record, (we dont have a point system in Texas) but it is useless, no insurance company really delets this stuff, and there is no way you can prove they dont, and by the time you get the court order, its too late anyway, they swap info to quick for it to matter.

Absurd, huh...he can operate a locomotive with thousands of tons of cars and engine, but cant drive his VW to work!

Ed

[ChuckCobleigh]

Interesting provision in California's Vehicle Code:

12953. In any circumstances involving accidents or violations in
which the engineer or any other crewmember of any train is detained
by state or local police, the engineer or any other crew member shall
not be required to furnish a motor vehicle operator's license, nor
shall any citation involving the operation of a train be issued
against the motor vehicle operator's license of the engineer or any
other crew member of the train.

Seems like this was probably a problem with some of our local officers, which was taken care of by the legislature. Maybe more states should follow suit. Or maybe they have?

[ValleyX]

I guarantee you I'm not blowing into your Drager machine, unless it's at the point of a gun and even at that, you'd best not shoot me because what would be the justification? As for hitting cars purposefully? Ah? Gabe, I'm surprised at you, how am I going to hit a car purposefully? If they pull out in front of me and I'm doing what I'm supposed to be doing, which is operating within my posted speed limits, handling the train within all railroad rules and guidelines, sounding the bell and the whistle properly from the whistle post until I occupy the crossing, what have I done to deserve this treatment? You can have my name and the railroad's address.

As for Rice Yard in Denver, it reads to me as if that crew was a victim of poor instructions, another yardmaster who gives out orders without thinking of the implications. I don't like being treated as if I somehow enjoy blocking crossings, and if someone writes back to tell me how the crew should have cut those crossings, I'll have to think that a naive, unknowledgeable response.

[dekemd]

Ed,

I figured they called the whizz wagon as you put it. That's why I would not ask them to take a breathalyzer unless it was pretty obvious they had been drinking. For the record, you cannot force someone to take a breathalyzer. You had better not even point a gun at someone for refusing to either. That will get you out of law enforcement pretty quick.

As for your engineer friend who lost his insurance, well, I'm not one to recommend lawsuits, but I think a lawsuit would be justified in this case. If he has a court order stating the info is to be removed, and the ins company refuses, then he has a pretty good case. If I was him, I would sue and try to get the case heard by the judge who issue the court order. Then the ins company would have to explain to that judge why they ignored his ruling. Most judges get pretty upset when someone ignores their rulings.

In NC, the law says that if you are operating a motor vehicle on a public road or public vehicular area, you must produce a valid driver's license at the request of an law enforcement officer. It says nothing about locomotive. I think a company ID, and the address of where you report for work would be sufficient for a report if the local cops insisted on filing one. Being a Sheriff's Deputy, I don't do accident reports, but I'll try to ask a Highway Patrolmen the next time I have a chance and see what their procedures are for a train/vehicle collision.

[edblysard]

Pretty much the same set up here...
From what my former boss(OAG, State of Texas) has stated, the only time you have to produce a state issued drivers license is when you are operating a motor vehicle on a public road...on private property, you can drive what ever you want where ever you want on your land.
His opinion is that the US Constitution does not make any provision towards requiring any citizen to carry any type of identification, but only requires them to identify themselves when asked...its up to the officers to confirm the ID given.
In other words, you don't have to prove you'r who you say you are, its up to the cops to prove you'r who they think you are!

The engineer here tried what you suggested, and the insurance company did remove the offending data, but they also refuse to insure him...and when he tries to purchase it from other companies, he gets refused...

He(his attorney) is in the process of fileing a formal complaint with the state board of insurance regulators...he gets a standard form letter refusing to insure him when he applies, but when he calls the companies, they just note that this "accident" is showing on his record.

He tells them no, explains the circumstances, sends them copies of the court order...they say thanks, we will review this, and then he gets another form letter saying, thanks, but no thanks...

This is really driving him nuts, he is to the point that he is considering starting a civil suit against the kids family and insurance company for the damage to him, but I doubt it will go anywhere.

Ed

[gabe]

QUOTE: Originally posted by ValleyX

I guarantee you I'm not blowing into your Drager machine, unless it's at the point of a gun and even at that, you'd best not shoot me because what would be the justification? As for hitting cars purposefully? Ah? Gabe, I'm surprised at you, how am I going to hit a car purposefully? If they pull out in front of me and I'm doing what I'm supposed to be doing, which is operating within my posted speed limits, handling the train within all railroad rules and guidelines, sounding the bell and the whistle properly from the whistle post until I occupy the crossing, what have I done to deserve this treatment? You can have my name and the railroad's address.

As for Rice Yard in Denver, it reads to me as if that crew was a victim of poor instructions, another yardmaster who gives out orders without thinking of the implications. I don't like being treated as if I somehow enjoy blocking crossings, and if someone writes back to tell me how the crew should have cut those crossings, I'll have to think that a naive, unknowledgeable response.

ValleyX,

I never asserted it was a likely scenario. Suppose for instance a car load of anarchists stopped on the tracks in front of a stopped train and started yelling obscenities at the crew, the crew upset with the anarchists deliberately started their train, rammed the car, and one of the anarchists seatbelts got stuck and was killed.

I understand that is a completely unlikely scenario. But, my point is, I think most everyone would agree that the engineer could be charged criminally under State law in that circumstance. If the engineer can be charged under that circumstance, I fail to see why the engineer couldn't be charged for criminally negligent manslaughter for operating while intoxicated? That is not an unlikely scenario.

Of course I understand no one is going to intentionally run someone over with their train, I only use that example to illustrate my confusion as to why State law enforcement could not demand the engineer give a breathalyzer if they had probable cause to believe the engineer was drinking?

Gabe

[dekemd]

Ed,

That is a bad situation your co-worker is in. That has to be extremely frustrating. In addition to a civil suit, he needs to contact the state insurance commission if there is such a thing in TX. North Carolina's state insurance commission is the group that regulates insurance companies in NC. They keep rates in check and investigate complaints against ins companies. Contacting a state legislator or two might not hurt either.


Gabe,

State or local law enforcement cannot DEMAND an engineer give a breathalyzer because of the way the law is written. In NC, the law states that anyone operating a motor vehicle on public roads or pva's must submit to a breathalyzer upon request of a law enforcement officer. Refusal results in a one year revocation of your driver's license. It says nothing about trains. The only way you can be forced to submit to a breathalyzer, blood test, or other drug test, is by a court order. The officer would have to go before a district court judge and get a search warrant.

The downside of an engineer refusing is that in a civil trial it could be used against him. An unscrupulous lawyer would argue that if the engineer didn't have anything to hide, he would have taken the breathalyzer. It might sound like a bogus argument, but some juries will believe anything. The question the lawyer will ask: If you have nothing to hide, then why refuse.

Derrick

[spbed]

Sounds like the police in that township need some people skills training. [;)]



quote]Originally posted by vandenbm

From the trains.com newswire on Friday:

---Just before 10 a.m., Perry Richardson, 46, tried to drive across the tracks near his home when his van was struck by a CSX freight train traveling from Richmond, Va., to Cincinnati, Ohio. He was taken to a local hospital, but his condition was not immediately available. Sheriff Mark Smith says he believes Richardson simply made a bad judgment call - thinking he could beat the train.

But Smith also said the train's engineer, Michael Steven Spade, 53, of Sand Fork in Gilmer County, was arrested for refusing to give basic information such as his name and address. Spade was arraigned and released on bond. No hearing date has been set. CSX spokeswoman Jane Covington said the engineer should have cooperated, but she pointed out that it was a very stressful situation for him. Ghent is 73 miles southeast of Charleston, W.Va.---

Something seems weird here to me??? Your thoughts?

[gabe]

QUOTE: Originally posted by dekemd

Ed,

That is a bad situation your co-worker is in. That has to be extremely frustrating. In addition to a civil suit, he needs to contact the state insurance commission if there is such a thing in TX. North Carolina's state insurance commission is the group that regulates insurance companies in NC. They keep rates in check and investigate complaints against ins companies. Contacting a state legislator or two might not hurt either.


Gabe,

State or local law enforcement cannot DEMAND an engineer give a breathalyzer because of the way the law is written. In NC, the law states that anyone operating a motor vehicle on public roads or pva's must submit to a breathalyzer upon request of a law enforcement officer. Refusal results in a one year revocation of your driver's license. It says nothing about trains. The only way you can be forced to submit to a breathalyzer, blood test, or other drug test, is by a court order. The officer would have to go before a district court judge and get a search warrant.

The downside of an engineer refusing is that in a civil trial it could be used against him. An unscrupulous lawyer would argue that if the engineer didn't have anything to hide, he would have taken the breathalyzer. It might sound like a bogus argument, but some juries will believe anything. The question the lawyer will ask: If you have nothing to hide, then why refuse.

Derrick

Derrick,

That is not necessarily true. There is an exigency exception to the warrant requirement--if the evidence might be destroyed before you can obtain a warrant, you are allowed to search based upon probable cause.

By definition, every second your body is conscious, it is oxidizing alcohol or drugs and thus "destroying" evidence. This might vary from jurisdiction to jurisdiction, but I would be willing to bet that an officer could "demand" a breathalizer IF HE HAS PROBABLE CAUSE.

Gabe

[dekemd]

QUOTE: Originally posted by gabe

QUOTE: Originally posted by dekemd

Ed,

Derrick,

That is not necessarily true. There is an exigency exception to the warrant requirement--if the evidence might be destroyed before you can obtain a warrant, you are allowed to search based upon probable cause.

By definition, every second your body is conscious, it is oxidizing alcohol or drugs and thus "destroying" evidence. This might vary from jurisdiction to jurisdiction, but I would be willing to bet that an officer could "demand" a breathalizer IF HE HAS PROBABLE CAUSE.

Gabe

Gabe,

You could demand a breathalizer under exigency, but you can't make the guy blow into the tube if he doesn't want to. That's why NC has the 1 yr revocation for refusal. If you claimed exigency but he refuses to blow, you could probably charge an engineer with resist, obstruct, delay a public officer. Before I made an arrest, I would call the magistrate and see what he advises. Your only other alternative is a blood test. In NC you must have a court order to forcefully take a blood sample.

While the body is constantly "destroying" evidence, it does take time for the body to completely get rid of drugs and alcohol. I'm sure a drug test is done within a few hours after an incident by the RR or FRA. Ed or some of the others could probably say for sure. If you have to advise your supervisor when taking OTC medicine, I'm sure any amount of alchohol in your system would be prohibited. Someone who had enough in their system that their actions would give an officer probable cause, would probably take several hours for the body to completely process it. It should still be detectable even three or four hours later.

[gabe]

Derrick,

I agree that the alcohol would still be detectable three-to-four hours later, but in a substantially diminished degree. In fact, the national standards for the administration of breath-alcohol tests wont even certify a test that is taken three hours after custody.

Given my experience in Indiana, on a good day, the police might be able to get a warrant within an hour and fifteen minutes. Yes, alcohol would still be detectable in such a time period, but unless the engineer was around 0.12-0.15 or higher—i.e. schnockered—they would probably be well under the legal limit by the time he could take the breathalizer. The officer would also probably have to start the requisite 20 minutes of pre-breath test observation after obtaining the warrant too.

You are right about the remedy. You can't force the engineer to take the test—other than to threaten him with charges/arrest him. But, although your charge of resisting arrest is a mere misdemeanor, most jurisdictions consider destruction of evidence to be a felony. I would be willing to bet you could probably tag the engineer with destruction of evidence if he refused.

Gabe

[ValleyX]

On a lighter note, in my railroad time, I have only heard of one engineer who took special delight in hitting cars, I never knew this gentleman and have only heard the story but have heard it enough to believe it to be true.

He worked a yard engine in his hometown and there was street running involved. One day, while running down the street, he saw a car he thought he could get and sped up just a bit. Sure enough, he hit the car, only to realize once it was too late that it was his brand new fifties model car. His son-in-law had borrowed it.

As for engineer impairment, in today's world of random drug tests and adherence to the rules, I'm not going to say that you won't find an impaired engineer but I'm going to say that it would be a rare find.

[gabe]

QUOTE: Originally posted by ValleyX

On a lighter note, in my railroad time, I have only heard of one engineer who took special delight in hitting cars, I never knew this gentleman and have only heard the story but have heard it enough to believe it to be true.

He worked a yard engine in his hometown and there was street running involved. One day, while running down the street, he saw a car he thought he could get and sped up just a bit. Sure enough, he hit the car, only to realize once it was too late that it was his brand new fifties model car. His son-in-law had borrowed it.

As for engineer impairment, in today's world of random drug tests and adherence to the rules, I'm not going to say that you won't find an impaired engineer but I'm going to say that it would be a rare find.

Valley X,

That is a great story.

I also agree with you regarding the liklihood of an engineer being drunk on the job.

Gabe

[Anonymous]

In today's world, with these conservative Judges, a Nevada case that went to the highest court in the land, stated the cops have a right to know, you better show them who you are, if you don't, you'll be charged with obstruction, a feloney...All because you thought you had some kind of right not to show them ID.

[tree68]

In NY you can be charged with DUI under common law - you flunked a field sobriety test. If that happens, you'll be headed for the ER for a blood test, in cuffs. If you refuse to blow for a test, I believe the year's revocation applies...

[jeffhergert]

From what I understand and have experienced, drug/alcohol testing is not required for grade crossing incidents (unless a crewmember is thought to be impaired) or for incidents that were obviously caused by track/mechanical failure (again unless a crewmember is thought to be impaired).
Any time there is any kind of incident, the railroad will get a company officer on the secene ASAP. There is always at least one on call 7 days a week.
As soon as the company officer shows up and there is any question as to impairment of a crewmember, even if the fault is beyond the crew's control, a whiz quiz will be taken.
I won't argue the legality of refusing a law officer of a drug/alcohol test, but you can't refuse the company officer, unless you're wanting a change in careers.
Jeff