What happens after a 395.28 citation for failing to select/deselect driving categories. OOS rates, state breakdown, and next steps for drivers.
Ranks #1,880 of 3,146 FMCSR codes by citation frequency • OOS rate of 4.0% is below the FMCSR-wide average of 33.3%.
Driver failed to select/deselect or annotate a special driving category or exempt status
Direct answers grounded in TruckCodex inspection data
No. Across our 13 million inspection records, 395.28 citations result in an out-of-service order only 4.0% of the time—1 out of 25 all-time citations in our database. For context, the average FMCSR violation carries a 31.4% OOS rate, making 395.28 significantly less likely to sideline your truck. Most citations for failing to select or annotate your driving category or exempt status remain compliance-level findings.
The CSA points assigned to a 395.28 citation depend on your carrier's safety profile and the specific circumstances of the inspection. Hours of Service violations fall under the HOS BASIC in the CSA system, which affects both driver and carrier safety ratings. We recommend checking your inspection report directly or contacting your safety manager for the exact point value assigned to your citation, since this can vary by inspection severity and state.
Take these steps immediately:
Since the OOS rate is low (4.0%), you're likely able to continue operating.
395.28 is relatively minor in the Hours of Service category. Our inspection data shows it ranks #1860 out of 3,036 FMCSR codes by citation volume—only 25 all-time citations. Compare this to peer violations in the same category: 395.24 (ELD Form and Manner) has 106,486 citations, and 395.8A1 (Failing to have a record of duty status) carries a 92.9% OOS rate. The 395.28 OOS rate of 4.0% is far below the all-FMCSR average of 31.4%, indicating inspectors treat this as a documentation or setting error rather than a safety-critical violation.
Yes, you may be able to contest a 395.28 citation through the DataQs online dispute resolution system. Since this violation typically involves ELD settings, driver selection, or annotation records—all of which are documented—you can challenge the finding if:
File your DataQs request within 90 days of the inspection with supporting ELD screenshots or carrier records.
Over the last 180 days, 395.28 citations appear most frequently in Texas, Iowa, and Illinois. Across our inspection records, Texas accounted for 5 citations with a 0.0% OOS rate, Iowa for 3 citations (0.0% OOS), and Illinois for 1 citation (0.0% OOS). The low volume in each state and zero out-of-service outcomes suggest these are enforcement outliers rather than systemic patterns in any single jurisdiction.
Low urgency operationally, but address it promptly to avoid repeat citations. Over the last 90 days, we recorded only 5 citations for 395.28 nationwide—indicating this is not a high-enforcement concern. However, citations in the same inspection often involve other HOS or vehicle equipment issues. Review your ELD settings and correct the driving category or exempt status selection within 1–2 business days, then inform your carrier. Since the OOS rate is 4.0%, you can continue normal operations while making the correction.
A 395.28 citation affects both the driver and the carrier under the FMCSA's CSA system. The violation appears in the Hours of Service (HOS) BASIC category, which contributes to each entity's safety rating. For the driver, it reflects a compliance failure related to ELD use and hours reporting. For the carrier, it signals a gap in driver training, ELD configuration, or supervision of record-of-duty-status practices. Both parties should review the citation and implement corrective measures to prevent recurrence.
Where 395.28 is most commonly cited (last 180 days)
TruckCodex aggregates official public-sector datasets. See the Source registry for dataset-level coverage and the Freshness log for last-import timestamps.
Census, SAFER, SMS, Licensing & Insurance (L&I), roadside inspections, crashes, and authority history.
Vehicle recall campaigns, defect investigations, and consumer safety complaints (SCRS).
Cross-border carrier registry and Canadian recall campaigns where applicable.
TruckCodex is an independent aggregator; it is not affiliated with FMCSA, NHTSA, EIA, or Transport Canada. Always verify compliance-critical information directly with the originating agency.