CMV Litigation: Post-Accident Drug & Alcohol Testing

Post-Accident Drug And Alcohol Testing: Observations

The regulations contemplate the possibility of a “team driver” situation, and require testing for both the driver behind the wheel and the co-driver. This can be significant because it is not unheard of for drivers to swap seats after an accident.
A driver is barred from consuming alcohol for eight hours following an accident or until a post-accident alcohol test is administered, whichever comes first. While this regulation prohibits post-accident alcohol use, it does not specifically prohibit post-accident usage of a controlled substance. This “omission” is probably intentional, as the USDOT likely considered that an injured driver may justifiably be prescribed narcotic pain medication in the wake of a wreck.
The regulations impose significant duties on the motor carrier. For example, the “employer shall test” duty applies to both controlled substances and alcohol. Further, the “employer shall provide” instructions so a driver will know when, where, why and how to be tested. The latter requirement should be one of the topics covered during the deposition of a driver, especially when a test was required but not performed. Did he know when to get a test? Was he told where to get a test? Was he given any training at all? It may turn out that the reason a test was not administered is different from the excuse given by the motor carrier. It may simply be that the driver had no idea he was supposed to be tested. This can be blamed on the motor carrier. A driver may shade his testimony in such a fashion as to shift fault from himself, which leaves the carrier even more responsible. This could also give rise to a spoliation-type argument, or at least some adverse inference, if there is any indication of drug or alcohol use by the driver that, because no test was administered, was left unconfirmed. In essence, the regulations contemplate that the motor carrier will educate its driver so that they know when and where to present for testing.
If an alcohol test is not conducted within two hours, there should be a record explaining why. Likewise, if the alcohol test is not conducted within eight hours, there should be a record explaining why. The same goes for failure to administer a drug test within thirty-two hours. Such records often fail to find their way into the DQ file, especially after the occurrence of a serious wreck and the inevitable early involvement of defense counsel. These finite requirements should be explored when drug or alcohol use is suspected, or once again, where a test was required by the regulations but did not occur. During his or her deposition, there is likely to be a fair degree of dismay on the part of a safety director (and their defense counsel) when trying to explain the motor carrier’s failure to ensure the test was administered and the additional failure to prepare a contemporaneous record explaining why it was not performed.
Note that many motor carriers require a post-accident controlled substance or alcohol test after all but the most minor occurrences. The motor carrier’s own policies should be reviewed to determine if they were violated, even if no test was required under the regulations. Otherwise, there could be a test result floating around that counsel will never learn about and does not otherwise suspect because the regulations did not require it. In this vein, discovery requests for testing should not be limited simply to those “required by the FMCSRs.” The best request simply asks whether any testing was done and, if so, what were the results.
In any case where no immediate fatality occurs, but then one does within eight to thirty-two hours, the motor carrier must then seek the test or explain why it failed to do so. Given the “rapid response team” approach of many major motor carriers, ignorance of a post-wreck fatality is unlikely. This regulation could provide a path into discovery of the post-incident investigation performed by the motor carrier and/or its insurer, in order to determine what the motor carrier knew and when it knew it. If the motor carrier claims it did not conduct the test because it did not know your client’s loved one eventually passed away later at the hospital, it may be worth probing to determine whether the motor carrier had an adjuster at the hospital trying to get information from the staff or the family.
Counsel should insist on viewing the results of a post-accident test before agreeing to resolve a case, especially if the motor carrier has hired separate counsel for its driver. If the motor carrier claims an excuse for why it did not conduct a test, a probe into that reason is necessary. For example, the given excuses of poor weather or the long distance to a testing facility will prove hollow if counsel finds that an authorized testing facility previously used by the motor carrier was just a few miles from the wreck scene. If the explanation is that law enforcement kept the driver at the scene for over two hours, find out if the driver or any representative of the motor carrier representative informed the officer of the need for a test. Law enforcement can usually be expected to facilitate the performance of a drug or alcohol test, especially when they might otherwise lack probable cause to require it themselves. There are other questions that warrant asking. If the driver was himself injured in the wreck, did he, the motor carrier’s representative, or the insurance adjustor request that the hospital draw blood for a test? Given the prevalence of clinics spread across the country, it is a rare instance indeed where a really sound reason for missing the time limit for a post-accident test exists. In fact, it is probably about as rare as the motor carrier who carefully documents why no timely test was performed.

Pertinent Case Law

The great majority of cases addressing post-accident testing touch on employment issues outside the scope of this handbook. Case law does indicate that the completion of a negative post-accident test can constitute evidence of non-negligent supervision and defeat a claim that the motor carrier is liable on such grounds. Even the fact of a positive-post accident test may not be enough to submit the issue to a jury, despite the magnitude of injury which may occur as a result of an impaired tractor trailer driver.

Bedford v. Moore

For instance, in Bedford v. Moore, the court affirmed the trial court’s exclusion of a post-accident drug test that revealed the presence of methamphetamines. The testifying toxicologist (apparently subjected to voir dire outside the presence of the jury) admitted he “could not tell the jury that [the driver] was impaired at the time of the accident.” However, other witnesses, whose testimony was also excluded, had testified that the driver “appeared to be under the influence of drugs at the time of the accident and … appeared to be ‘hyper.’” Nevertheless, the court found that “evidence of drug usage must provide some explanation for the negligence and improper conduct,” and because the toxicologist could not make the causal connection, the evidence was excluded. The adverse effect of a court’s ruling that a jury may not hear that the driver of a tractor-trailer was arguably high on meth at the time of a fatal wreck cannot be understated. The lesson of Bedford is that the use of an expert who cannot prove intoxication contemporaneous with an incident should be avoided.
A more successful result was obtained in the Trux case, supra, where a claim of “bad faith” survived summary judgment in part based on the truck driver’s post-accident drug test, which was positive for metabolites of marijuana. The Middle District of Georgia judge noted the violation of federal regulations and Georgia state law in so operating his tractor, which regulations are “obviously for the benefit of plaintiff and other drivers and passengers on the road.” Further, the evidence of drug use in the record was sufficient to survive summary judgment motions (filed by both the driver and the motor carrier) seeking to strike the plaintiff’s punitive damage claims, especially since the driver lied about the drug test results in his deposition.

Blair v. Sullivan

Likewise, in Blair v. Sullivan, the court admitted evidence of a post-accident drug screen of a plaintiff truck driver that was rear-ended by another trucker. The defendant argued the positive result was admissible on the issue of causation and the plaintiff’s credibility as to his memory of the incident. The Tennessee Court of Appeals agreed and affirmed the defense verdict rendered by the jury. The observation that the positive test could be admitted to challenge the driver’s credibility in recalling the circumstances of the accident is worth remembering if there is any substance to a defense objection that drug use has not been shown to be a cause of an underlying wreck. The object is to get the issue of a driver’s drug use in front of the jury, regardless of any debate over its role in the wreck. Of course, it should always be the jury’s province in the first place to resolve any such debate.

Massachusetts Bay Ins. Co. v. Unique Presort Services

Finally, in Massachusetts Bay Ins. Co. v. Unique Presort Services, Inc., a plaintiff’s unique theory of direct liability against a motor carrier backfired in dramatic fashion. In the underlying action at issue, the plaintiff alleged a negligent failure on the part of the motor carrier to administer a post-accident drug test on its driver. The motor carrier’s insurer responded by pursuing an interesting tactic against its insured motor carrier: it sought a declaratory judgment as to its duty to defend or provide coverage. The court ruled there was in fact no duty to defend or cover the claim, potentially leaving plaintiff with an uncollectable judgment. There is a danger to experimental pleading, and Massachusetts Bay is a perfect example.

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