As any dealer who has gone through a tampering situation knows, taking a vehicle in on trade that has a tampered emission system is a costly and time-consuming issue.  The situation usually ends with a sizeable bill in order to return the emission system to the appropriate standard.  A dealership needs to be proactive in identifying tampered vehicles and aware of the issue before taking vehicles on trade or purchasing at auction.  Here are some commonly asked tampering questions and their answers:

What is “Tampering”?
Ohio’s anti-tampering statute defines tampering with an emission control system as, “to remove permanently, bypass, defeat or render inoperative, in whole or in part, any emission control system that is installed on or in a motor vehicle.”  Some common examples of tampering include:

• Removing any emissions device from the exhaust system and installing a straight pipe for example the catalytic converter, diesel particulate filter or other devices installed;
• Removing the substrate from inside the catalytic converter (“cleaning” it out);
• Deleting or bypassing the exhaust gas recirculation (EGR) system;
• Installing oxygen sensor cheaters or spacers;
• Removing or disabling an air pump; and
• Adding software or reprogramming the PCM/ECM (power control module/engine control module) to accommodate illegal aftermarket parts.

According to the Ohio Environmental Protection Agency (EPA), some common signs of possible tampering may include, but are not limited to, the following:

• An aftermarket exhaust configuration;
• An emission control configuration that differs from the vehicle’s original manufacturer’s specification (example: a larger air intake, deleted EGR system, reprogramed computer or tuner); or
• A part not originally certified for the vehicle (example: aftermarket high flow or “off road use only” catalytic converter not certified by U.S. EPA or CARB).

 Can I knowingly sell a vehicle with a tampered emissions system?
The answer is NO.  Ohio’s anti-tampering statute (R.C. § 3704.16) prohibits any person from knowingly operating a motor vehicle that has been tampered with.  Additionally, the law prohibits any person from knowingly selling, leasing, renting, or offering to sell, lease, or rent such a vehicle.  The law also prohibits transferring or offering to transfer title or a right to possession of a motor vehicle that has been tampered with.   The penalty for violating the law can be anywhere from $500 to $2500 per day per violation.  Plus, operating such a vehicle is considered a minor misdemeanor.  This would be in addition to any federal law penalties. 

Some dealers try to sell these vehicles “AS-IS”.  Remember though, that while disclaiming warranties as to a vehicle’s condition is permitted under Ohio law, it may not protect against claims that your dealership knowingly sold a vehicle with a tampered emissions system.  Dealers should consult with counsel on this topic.

Should I take a tampered vehicle as a customer trade-in for a new vehicle?
According to the Ohio EPA, a trade-in transaction is considered a sale under the anti-tampering law and therefore places the parties in violation of the law if the dealerships, through its agents, knew at the time of the transaction.  If a customer wants to trade-in a tampered vehicle, the dealership should not accept the vehicle as a trade until the emissions control system has been repaired.  However, a dealership may offer to repair the vehicle, so long as the dealership has the ability to do so, and work out the repair costs as part of the trade-in agreement.

If the dealership has taken a vehicle in on trade and then discovers that the emissions system has been tampered with, you cannot sell it at retail or wholesale without making the necessary repairs.  Otherwise, the dealership will violate the anti-tampering law.  You may only sell the unrepaired vehicle to a licensed motor vehicle salvage dealer.

What protections does the dealership have if they receive a tampered vehicles?
If you acquired the vehicle as a trade-in from a consumer, you typically have a right to receive damages as a result of the customer’s breach of the contract.  Most Buyer’s Orders and Lease Orders have a provision that the customer warrants that the vehicle has all emission control equipment and the equipment is in satisfactory working order.  However, from a practical sense often times collecting the damages from the consumer is more costly than the dealership paying for the repairs.

If you purchased a tampered vehicle from a wholesaler in Ohio, you may take independent legal action to rescind the sale and/or recover damages from the seller. In addition, you may file a complaint with Ohio EPA’s Mobile Sources Section. If the vehicle was purchased from a wholesaler and an Ohio EPA investigation determines that further violations of the anti-tampering law have occurred, Ohio EPA can take an enforcement action against the wholesaler.

What can a dealership do to prevent this problem?
There are several steps dealerships can take in order to identify tampered vehicles and prevent this problem from occurring at the dealership.   Several protective measures include:

• Having a discussion with the consumer and asking whether the vehicle has had any major mechanical changes performed on the vehicle;
• Making the customer complete a trade-in questionnaire that includes a question about the emissions system and requires the consumer to sign the document;
• Requiring a test drive of the vehicle before accepting the vehicle for trade-in; and/or
• Allowing the dealership’s technicians to perform a quick check of the emissions system prior to accepting the trade-in.

At the end of the day, tampered emissions systems is a problem for all dealerships and creates a hassle and a waste of the dealership’s time, energy, and money.  If you come across a vehicle with a tampered emissions system, the dealership will have to repair the emissions system before they can retail or wholesale the unit. 

For more information on tampered vehicles, the Ohio EPA has produced several pieces assisting dealers in understanding Ohio’s Emissions Tampering Laws, including:

• Ohio’s Vehicle Anti-Tampering Law: What You Should Know (May 2019)
• Frequently Asked Questions Regarding Repairs of Exhaust and Emissions Systems
• Ohio’s Vehicle Anti-Tampering Law: What Auto Dealers Should Know (May 2013)

If you have any questions regarding Ohio’s anti-tampering laws, please call OADA for more information.