Editor’s Note. We get a lot of questions about the ‘Bureau of Automotive Repair’ undercover cars or undercover vehicles. Many SMOG station owners and/or STAR program participants don’t necessarily even know that the Bureau can (and does) send out ‘undercover vehicles’ to stations throughout California as part of sting operations. The ostensible purpose is to double-check on SMOG checks throughout the state, as well as auto repairs to ensure compliance with the law. Not surprisingly, the use of these undercover vehicles is very controversial among auto repair shops and SMOG station owners. We asked attorney William Ferreira to answer some common questions about the undercover car program by the Bureau of Automotive Repair. See: Part 2 of Bureau of Automotive Repair Undercover Cars.
Q. I have heard that the Bureau of Automotive Repair sends out “undercover cars” to check up on SMOG stations? Is that really true?
Yes the Bureau of Automotive Repair regularly sends undercover cars to STAR and other Smog Stations. The Bureau of Automotive Repair has a bevy of reasons to send undercover operations. If they see a low failure rate, if they see low visual failures, if they see a high car count, if you own more than one facility, if you have consumer complaints, if cars tend to pass at your facility shortly after leaving another facility, or frankly, if they don’t like you – you will see an undercover operation.
Q. How can I recognize one of these undercover cars? Aren’t they required to have ID or official State of California license plates?
The Bureau of Automotive Repair is able to make fraudulent DMV notices to make them appear as if they are “normal” consumers. They use false names and false plates.There also will not be a testing history for the car when you look up the VIN. Most if not all of the undercover operations are some type of visual or functional issue. EVAP’s, PCV’s, Timing, AIR Pumps, Pulse Air, etc. Sometimes they will add chips or other devices. They will also doctor the OBD II systems to prevent the monitors from running.
Q. Is this legal? Isn’t it entrapment for a government agency using MY TAX DOLLARS to be sending out hidden cars to try to trick me or my employees into doing something wrong?
Yes and no. It is entrapment if you can prove the government induced you to do something you otherwise were not predisposed to do, however, most judges don’t think the Bureau of Automotive Repair acted in such a way. They were merely “verifying compliance” after a “data review” suggested inspections were not being performed properly.
Q. Do they have hidden cameras and recorders? Isn’t this a violation of my privacy rights or those of my employees vis-a-vis the Bureau of Automotive Repair?
Some of these vehicles do have camera systems although we are seeing less and less of these undercover operations (it looks too good when a tech uses a timing light, proves he did the inspection, but came up with a different degree than what the BAR did). As far as privacy rights, the constitution has been elaborated upon to include many areas of privacy – a business open to the public is not one of them. An office, a home, a personal car – privacy applies. Unfortunately courts has decreed that cameras are a legitimate investigative tool for most governmental agencies.
Q. Are these cars sent out to SMOG check stations, SMOG check only, and/or participants in the STAR program?
They are sent to all facilities. STAR, Test Only, Test and Repair, and everywhere in between.
Q. What about repairs on consumer cars. Are these cars used for that program, too?
We have seen the BAR spend thousands of dollars tearing apart a consumer car to go after a shop. Although a consumer car is a consumers, it may become an undercover car when the BAR spends $10,000 tearing the vehicle down at a competitor to show that welds under 6 body parts did not received anti-corrosion material constituting fraud in the amount of .1 labor time and .1 in materials.
Q. I received a so-called “Accusation” from the Bureau that says undercover cars were used. I don’t remember any of these vehicles, how can I be sure that they actually showed up or were given the test results indicated? I don’t have VIN or license plate numbers on them.
The Accusation will contain very limited information. It is basically the charging document. Filing a Motion to Compel Discovery or Subpeona would be the method of obtaining the information you need. They will usually have signed copies of invoices and VIR’s to solidify that it was tested or repaired at your facility.
Q. I have heard you can file an informal appeal. Do I really need a lawyer, or can’t I take the first step myself.
It depends on the type of appeal. For a BAR97/OIS inspection, we have been successful in defeating these appeals at the informal level. We also have been successful, although it is less common, during the informal appeal for a citation. STAR appeals are routinely defeated during the informal appeal. Have I ever seen someone working on their own win an informal appeal? I’m sure it’s happened, but it’s kind of like diagnosing your car without any automotive knowledge or training by going to Autozone and getting the pending code and start throwing parts at it. It will do you more harm than good.
Editor’s note: the preceding are just some of the more common questions asked. Remember not to construe anything written here as legal advice. Consult with a professional attorney if you have any questions about any issues vis-a-vis the California Bureau of Automotive Repair. See: Part 2 of Bureau of Automotive Repair Undercover Cars.