Consequences for Drug and Alcohol Use: Overview
The regulations provide rules for the driver who has tested positive in a number of sub-parts. For example, at 49 C.F.R. 382.215, a driver who tests positive for a controlled substance can not perform any safety-sensitive function. Explicit instruction is set forth at 382.501 et. seq.
Consequences for Drug and Alcohol Use
1. A driver who has tested positive in violation of the regulations or “an alcohol or controlled substance rule of another DOT agency” may not perform a safety sensitive function, nor may the motor carrier permit him to do so. Once a driver has tested positive, he must undergo “comprehensive face-to-face” evaluation by a substance abuse professional (SAP), undergo the treatment the SAP recommends and following successful completion of such treatment, take a “return-to-duty” test.
2. Any driver who when tested has a BAC of .02 to .03 is barred from completing safety sensitive functions, including driving, until the start of the driver’s next regular duty period, at least 24 hours after administration of the test. (382.505)
3. Any employer or driver who violates these requirements is subject to civil and criminal penalties. (382.507)
Because the risk of harm in driving a truck impaired is so great, the requirements to put a driver behind the wheel after he violates a drug or controlled substance test are rigorous. The requirement of evaluation, performance of a treatment plan and return-to-duty testing, and the associated administrative headache may be sufficient to convince a negligent motor carrier with loads to deliver to simply send the driver home for the day without pay. If this happens, and the driver later is involved in an accident while impaired, there are certain violations that should be brought to bare. If the employer gets caught doing this, there may be some criminal penalty, and possibly even a guilty plea. A pattern of such conduct could provide a basis for introduction of evidence of other similar acts, depending upon the law of the jurisdiction where the case is venued. It goes without saying, exploring the driver’s history of violations when impairment is part of the evidence is a must. There may be a track record that should have alerted the motor carrier that this could happen or, even more significantly, a history of ignoring the violations of the driver in question.
Pertinent Case Law
Case law addressing these regulations involves claims by employee-drivers against motor carrier employers for wrongful discharge. No personal injury cases were noted during research. At least one court has held that 382.505(b) does not prohibit an employer from terminating a driver who has any detectable level of alcohol in his bloodstream, not just .04 or greater. Alcantar v. Bridegroom, 2008 WL 2097575 (N.D. Ind. May 16, 2008). Thus, subsection (b) is not likely to be held a bar against an employer taking action, even where the driver’s BAC was less that . The regulation should not be read as creating a defense by an employer to closer monitoring, suspension or more frequent review of a driver with a low-level positive test.