Drug & Alcohol Use by Drivers: Overview
Use of alcohol or controlled substances by employees performing “safety sensitive functions” before or while driving is strictly regulated. However, there are certain limited exceptions which to be kept in mind if a positive post accident test result is uncovered. The regulations create an “actual knowledge” standard a motor carrier may use as a shield while arguing a driver was outside the scope of employment when operating a CMV while impaired. In such a situation, it is critical to inquire of the motor carrier representatives, starting with but not ending at the Safety Director, in order to test the motor carrier’s efforts to detect and prevent drug/alcohol use by drivers. While there may be no “actual knowledge” on the occasion, a showing that the motor carrier was unfamiliar with the requirements or did not create a way to properly enforce them may be helpful. The see no evil, hear no evil defense should rarely succeed.
Drug & Alcohol Use
1. No driver may report for or remain on duty to perform safety sensitive functions (which includes time spent waiting for dispatch, time spent inspecting equipment and driving), with a BAC or .04 or greater, and no employer with actual knowledge may permit a driver to perform safety sensitive functions. (382.201)
2. No driver can use alcohol while performing or within 4 hours preceding safety sensitive functions and no employer with actual knowledge may permit such. 382.205—207
3. No driver shall report or remain on duty for safety sensitive functions after any use of controlled substance except when use is pursuant to instruction of a licensed medical practitioner who has advised the driver such use will not adversely affect safe operation of CMV. No motor carrier with actual knowledge of use of controlled substance may allow driver to perform a safety sensitive function, and a motor carrier may require a driver to inform it of any therapeutic drug use. 382.213
4. No driver may refuse post-accident, random, reasonable suspicion or follow-up testing and no motor carrier may permit driver who has refused to perform safety sensitive functions. No driver who has tested positive or adulterated or substituted a controlled substance test may perform safety-sensitive 4. functions, report for or remain on duty, and no motor carrier with actual knowledge of such may permit a driver to perform a safety-sensitive function. 382.211/215
If confronted with an impaired driver, inquiry into the enforcement of these regulations is highly relevant. Discovery into the motor carrier’s policies and enforcement of those policies should be made to learn whether the motor carrier had in place a functioning system to keep impaired drivers off the road.
The regulation defines “actual knowledge” as “direct observation,” information provided by previous employers, a DUI, or the employee’s own admission. 382.107 Direct observation means observation of the use or alcohol or drugs, not “observation of employee behavior or physical characteristics sufficient to warrant reasonable suspicion testing.” An “employer” for purposes of actual knowledge means the entity responsible for implementation of DOT drug/alcohol programs, including individuals employed by the entity who take personnel actions resulting from violations of drug/alcohol policy. This means that a motor carrier may argue it lacked “actual knowledge” because a supervisor did not witness the driver actually consuming the drug or alcohol. However, a motor carrier may have in place a program which instructs employees to notify a supervisor should they have knowledge that a driver has been drinking or using drugs. Potentially, this type policy may create exposure where a co-driver has knowledge of his partner’s drinking while driving.
Further, the “actual knowledge” requirement would seem to mean that a motor carrier cannot turn a blind eye to the risk presented by impaired drivers. Careful questioning may extract testimony that the motor carrier wants all its employees, from the guard at the gate to the mechanic in the shop to the dispatcher to be aware of signs of impairment. If the admission of vigilance is made, but the motor carrier then admits- or is forced to admit- that it has not made any (or any legitimate) effort to communicate this to the employees or trained them in any way, carrier negligence will be easier to demonstrate.
Note the regulation regarding “any” use of a controlled substance. The regulations acknowledge the “hung-over” driver by permitting use with a BAC of .04 or below, but there is zero tolerance for unprescribed controlled substances. In certain cases, the regulation should be charged, even where little showing of impairment at the time of the collision is possible. As mentioned in preceding sections, causation is a stumbling block in arguing breach of the regulations in many cases, but the zero tolerance rule militates in favor of a jury charge of the regulation. For instance, where the motor carrier knows that a driver is habitually using methamphetamines while off-duty and nevertheless allows the driver to operate a CMV, where little causation may be shown that the drug use caused the accident. The regulation may furnish a basis for charge in that situation, where the allegations include a claim the motor carrier knowingly allowed drug use by drivers, even though direct evidence of drug use at the time of the collision may not be available.
The exception for prescribed controlled substances is significant in this equation, and gives rise to questions which could implicate the prescribing physician. Should a driver test positive and present a prescription, you must depose the doctor. What did he know about the driver’s activities? Did the driver simply say “Is it O.K. for me to drive while taking this?” without telling the doctor he would be driving an 80,000 pound tractor-trailer loaded with, say, gasoline? Did the doctor monitor his usage, or give him numerous re-fills? Did the doctor give him any instructions about limiting use while driving? Those instructions may not appear on the bottle, and could be significant. What do the drug manufacturer’s warnings say about operation of machinery while taking the medication, and how familiar is the physician with those warnings. Certainly a bad moment for the doctor’s attorney occurs in deposition when the doctor has just admitted he was not familiar with what the manufacturer said about activities while taking the drug. And, in the developing medical field, it seems likely that two words are going to end up at issue in a prescribed-drug-exception claim: medical marijuana.
Note that the regulation does not require the doctor to advise the motor carrier. Does the motor carrier have a policy requiring drivers to disclose “any therapeutic drug use” (not just controlled substances) and if not, why not? What safety director will admit that the motor carrier does not want to know if one of its drivers is using a controlled substance while operating its CMV, even if such is prescribed by a physician? If the motor carrier is informed by a driver that he has been prescribed a controlled substance, does the motor carrier blithely accept the driver’s statement that “Doc says its ok to drive while taking this” or does the motor carrier check with the doctor itself? If the motor carrier required drivers to disclose use of controlled substances prescribed by physicians, how was this communicated to drivers– in a employment packet with a multitude of other instructions? In a 200 page handbook? How was the requirement enforced? Who monitored this requirement? Careful probing of the doctor-prescribed-approved exception may puncture it, and reveal negligence by both the physician and the motor carrier.
Controlled substances may not be the only drugs at issue. For example, a motor carrier may require drivers to inform it of “any therapeutic drug use” as permitted by 382.213(c). And suppose the driver dutifully informs the motor carrier, after hire, after obtaining his medical examiner’s certificate and before the next physical is due, that he has begun taking medication for high blood pressure. Or that he has begun taking insulin for diabetes. Certainly the insulin-dependent driver must come off the road immediately. Should the motor carrier make inquiry into whether the driver now on blood pressure control meds is still qualified? The fact the motor carrier may require that disclosure, and does so, does not mean it can ignore what it learns. In all likelihood, the motor carrier either does not have a specific individual who is responsible for gathering and monitoring that information, so that it simply never happens, or the person so designated is not competent to make the right decision when confronted with information about drug use other than, say, Xanax or Oxycodone.
Only a physician can advise the driver that it is permissible to drive while taking a controlled substance. DOT interpretations specifically deny this authority to a pharmacist or the written instructions which accompany the medication. (382.213 Interpretative question No. 1) The physician’s assistant (who may have actually prescribed the drug) or a nurse lacks technical authority to render this opinion. Again, will the safety director admit that it simply takes the driver’s word that his doctor Ok’ed driving while taking the drug after the driver drives on the wrong side of the freeway or loses consciousness while driving through a school zone?
In the proper case, a dissection of the motor carrier’s compliance with these regulations may yield highly damaging evidence of ignorance or flouting of regulations put in place to protect the public. Running down the loose ends of the motor carrier’s compliance– not stopping at the silver tongued safety director or V.P of claims, but getting the to the overworked, overtasked and overlooked administrative assistant– is the goal. Comparing what the motor carrier says it will do, either in the handbook or from the safety director, to what the person actually handling the compliance end is doing may reveal gaping cracks in practice, and negligent, possibly punitive, conduct that allowed an impaired driver behind the wheel.