CMV Driver Drug and Alcohol Testing

CMV Drug and Alcohol Testing: Overview

The specifics of testing, rehabilitation, procedures for obtaining samples, qualifications of testing personnel, and other detailed requirements for drug and alcohol issues are found at 49 C.F.R., which is entitled “Procedures for Transportation Workplace Drug and Alcohol Testing Programs.” These regulations are detailed and extensive, and reference to them should be made if any questions arise about the testing program at issue.
In a quest for safety, the regulations establish a number of checkpoints that may reveal improper or illegal use by a driver. They provide both strict standards and harsh penalties. Most of the time the motor carrier is the party responsible for implementing these rules, so bad drivers inevitably can and do slip through the cracks. A motor carrier may seize on the intoxication of its driver may be seized upon by the motor carrier as evidence that he was outside the scope of employment at the time of the wreck. This defense may not even be applicable to a motor carrier operating leased equipment using an owner-operator driver. However, in the case of an employee driver, the strange truth is that the more outrageous the facts, then the stronger the defense may be. In such a case, a direct claim for negligent entrustment or retention is usually necessary to impose liability on a motor carrier that has not followed the regulations. This type of direct claim may help avoid an “outside the scope of employment” defense, since it is the motor carrier’s own negligence, not vicarious liability, which is at issue in such a claim. Accordingly, if the motor carrier argues that the use of drugs or alcohol by its driver took him outside the scope of his employment, the plaintiff will need evidence to support an argument that the motor carrier should remain responsible because the use was foreseeable.
The importance of thorough discovery regarding a motor carrier’s compliance with drug and alcohol regulations is obvious. In cases where there is already an indication of intoxication or usage, it becomes critical. The evidence may not be readily apparent; the police may not even administer a sobriety test. However, the requirement of a post-accident drug test under certain circumstances may reveal information that would otherwise be unknown or concealed. The entire process should be scrutinized through the use of broad but carefully drawn initial discovery requests with appropriate tailored follow-up. The regulations do contain privileges regarding the disclosure of drug and alcohol testing, but there are also exceptions to those privileges. The regulations will unlock the privilege barrier only if the proscribed prescribed procedure described is followed.
It is particularly critical, in the initial investigation of the case, to discern if you are dealing with a driver with a drug or alcohol problem. Questions about post-accident drug and alcohol testing should be put directly to the adjuster, motor carrier representative, or defense attorney as soon as possible. If they equivocate or do not otherwise deny a positive finding, then the issue is one that must be pressed.
An expert or investigator should be retained to inspect the tractor cab for any sign of alcohol or drugs (or pornography, as distraction can cause an accident, too). It is illegal to even carry alcohol inside the tractor while on duty. The inspection should also look for prescription bottles. Counsel should ensure their investigator takes photographs of both the bottle and contents and writes down all information on the labels, including the name of the medication, the dosage, and the names of the prescribing physician and the pharmacy that dispensed it. Evidence of illegal drug use should also be a target of the inspection; pipes, baggies, syringes, needles, or narcotics themselves.
The behind-the-scenes maneuvers of a motor carrier or its insurer may also provide clues or signals of an as-yet undisclosed driver issue, such as intoxication revealed by a failed post-accident drug test. One is the retention of separate counsel for the driver by either the motor carrier or its insurer. Simply put, where the motor carrier or its insurer wants to preserve an argument that the driver was not about its business, the same attorney cannot represent both. Another clue, although it can be due to a multitude of reasons that have nothing to do with drugs or alcohol, is an early, precipitous, or unsolicited settlement overture. More than one catastrophic case has been quietly and quickly settled, often for a fraction of the case’s real value, by a motor carrier aware of the dismal result of a post-accident drug test.
It should go without saying: the quicker an investigation gets rolling, the better for the client. While the time element may be beyond counsel’s control, rest assured that the motor carrier has gone to “DEFCON” if there is even a whiff of drugs or booze, and has probably photographed everything incriminating. If the truck is gone or has been cleaned out, sent to the scrap yard, etc., a good argument can be made that a work product objection should be disregarded and discovery of the outside adjuster’s photographs, content logs, inventories, etc. must be permitted. Counsel should be ready to craft discovery that avoids the proper (and improper) assertion of the attorney-client or work-product privileges, yet still results in production of all non-privileged items. Expect resistance. Endeavor to persevere.

Pre-employment Drug and Alcohol Testing: Overview

Before the motor carrier can put a driver behind the wheel of a CMV or ask him to perform any “safety-sensitive function,” it must drug test him – with exceptions. Chances are, all but the most slack qualification process addressed this requirement in a particular case. If not, it is likely that there are many other regulatory breaches by the motor carrier to help build a case.

Pre-employment Testing 49 C.F.R. § 392.301 provides as follows:

1. The motor carrier must administer a controlled substance test (but not necessarily an alcohol test) to a driver before allowing him to conduct a “safety-sensitive” function, such as driving, loading/unloading a vehicle, waiting for a dispatch, conducting a pre-trip inspection, etc.

2. No controlled substance test is required if the driver has participated in a controlled substance testing program within the previous thirty days,and either:
a. was tested within the prior six months before the date of his application,
b. participated in random controlled substance testing within twelve months before the date of the application
and the hiring employer “ensures” that no prior employer known to it has a record of a positive test for a controlled substance positive test or refusal to submit to such a test in the six months before the date of the application

3. For the above exception for pre-employment testing to apply, the hiring employer must obtain detailed information (as described in the regulations) regarding the driver’s participation in the prior controlled substance program

4. If the hiring motor carrier uses a driver more than once a year, but does not employ him (i.e., a trip-lease driver), the motor carrier must either test the driver itself or obtain detailed information verifying that the driver is already participating in controlled substance testing “at least once” every six months
5. An employer is not required to perform a pre-employment alcohol test. However, if it chooses to do so, it must:

a. test all new employees, as well as current employees involved in or transferring to a job involving a safety-sensitive function
b. conduct the pre-employment alcohol test after the motor carrier makes a contingent offer of employment or transfer, and the offer must be contingent on passage of the test
c. conduct all pre-employment alcohol testing under the procedures required by the regulations
d. preclude covered employees from performing a safety-sensitive function if he or she tests positive at a BAC of .04 or greater
6. Records of the employer’s verification of the driver’s participation in a controlled substance program, so as to invoke the exception to pre-employment testing, must be preserved.

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