Response to Bureau of Automotive Repair Action on Alleged SMOG Check Defeat Devices

Editor’s Note: this is blog post about an open letter from lead attorney William Ferreira to the Bureau of Automotive Repair on the issue of SMOG check simulators, accusations, and Interim Suspension Orders. If you are a station owner and/or technician affected by Bureau of Automotive Repair actions, please reach out to our office for a confidential attorney consultation immediately.

Summary. The Bureau of Automotive Repair has announced a statewide investigation where they targeted facilities suspected of using simulators. 

What they did not disclose is that they found simulators at maybe 10% to 20% of the shops they searched. What this means is that despite having some “data” of suspected illegal or fraudulent smog check inspections, they came away with nothing. I know. I received about 50 calls that day wondering why these shops were targeted.

• Click here to view a PDF of Attorney Ferreira’s open letter to the Bureau of Automotive Repair.

April 20, 2018

To: Members of the Emission Testing Community
From: William Ferreira
Re: Epidemic of Simulators in California Smog Check Inspections

To Emission Testing Owners, Repair Facilities, and Technicians:

There is a matter that is of grave concern to the industry occurring as we speak. There has been a watershed of Accusations and Interim Suspension Order cases filed by the Bureau of Automotive Repair against shops and technicians for illegal clean plugs due to data discrepancies.

The problem I wish to address immediately are simulators. There is a black market of simulators developed specifically to assist individuals thwart the California Smog Check Inspection process. Here, millions of dollars are at stake.

The prevalence we have seen in our cases are twofold; used car dealers buying check engine light vehicles needing a passing certificate to turn them around and repair facilities who are helping customers avoid costly repairs.

You know the drill – a used car dealer buys a Junker at auction with a check engine light. Or the battery is dead becaue it’s been sitting for two weeks and the monitors are not set. No one wants it because you can’t sell it without a certificate of compliance. So, they buy it, install a simulator with a DLC connector in the stock location, take it for an inspection, get a passing certificate, and flip the car for a healthy profit.

You also know the guy down the street, instead of fixing the blown cat for $1000 will offer to “help” a customer pass the inspection for $200. They install a simulator with a DLC connector in the stock location, take it for an inspection, get a passing certificate, and save their customer hundreds of dollars.

Here, the technician and or facility is unknowing in this scam. And they are being taken to task by the BAR for something so outrageous with little or no proof the facility or technician knew, participated, or was complicit in the scheme. The argument is the data came from shop X, technician Y performed the inspection, so they’re dirty – shut them down.

And it happens. I’ve seen it happen. They ignore changed computers, changed doors, DMV VIN’s being incorrect, among other things.

It burns me that a hard-working technician or shop has to burn thousands of dollars on legal fees to fight this nonsense. I have better things to do with my time. I’m running out of the ability to take on these cases because our office is overwhelmed.

My feeling is you better get that technician taking money or personally using a simulator before you try and take their livelihood. Do some surveillance, send an undercover. I’m tired of seeing technicians with 40 years’ experience dragged into this.

The BAR however, feels different.

I am personally recommending to every shop, every technician, every individual who is in school or thinking of ever performing a smog check inspection to immediately buy a scanner capable of transmitting live data. Plug in and hit the throttle to see live data to make sure the RPM’s fluctuate. This is the current sure fire way to ensure you are plugging into the PCM’s DLC and NOT a Simulator installed.

The current simulators do not hook into live RPM data. I’m sure after reading this they will adjust, but you can look at sensors, etc., If you don’t see live data fluctuation where you should, do some more investigation. If you trace the DLC connector and find the simulator, pull it out.

My advice is to immediately stop the test, call the police, secure the simulator, and call the BAR.

This is probably not the first time they have brought this in. There are likely other tests you have done unknowingly. Once word got out that you didn’t catch it, others will come. The BAR is building a file on you. If you have the simulator, that is the first thing I would put in front of the judge saying I found this, I secured it, called the BAR, called the police, and busted this person. You need to make sure you defend yourself.

Also, be extremely weary of your used car dealer accounts or the curbside car flipper accounts that frequent your facility. Also, be wary of a repair facility that reefer’s you lots of inspections post repair work. These are the culprits we are seeing in these cases.

I understand there is a lot of questions and a lot of concerns. I will do my best to give as much information as I can.

I figure this was the best way I could help the Smog Check Comminute. The Bureau of Automotive is not getting this information out to technicians to help them avoid this situation. They are using this data as an enforcement techniques to shut shops down. I always want to give back to the Automotive Repair and Emission Testing Community. I have more work than I can handle fighting for shops and technicians.

I will continue to do so.

Sincerely,

William Ferreira