WHAT YOU NEED TO KNOW IF A SEMI-TRUCK ACCIDENT INVOLVES DRUGS OR ALCOHOL.
Unfortunately, truck drivers often misuse drugs and alcohol. When big trucks and substance abuse cross paths, dramatic and life-altering accidents are often the result. There are many complex issues that must be examined when an accident involves an intoxicated driver. Below are just a few issues that an experienced truck accident lawyer will review when alcohol are drugs are involved in an accident. It is vitally important that when an injury occurs and a driver is impaired that the victim seek out an experienced attorney from the outset of the case. Trucking companies know that when a driver is impaired they face extraordinary exposure and will often seek to destroy or bury evidence when the victim is unrepresented by an experienced attorney. Below is some information that an experienced semi-truck accident lawyer will review when prosecuting a claim for the victim of a semi-truck accident.
WHAT ARE SOME EXAMPLES OF DRIVER IMPAIRMENT?
The FMCSR requires that CMV drivers stay alert at all times while driving. In the world we live in today, there are plenty of distractions that can get in the way of being 100% alert. Therefore, the regulations outline certain substances and distractions that can impair a driver’s ability to drive safely. Some examples of these include:
illness or fatigue
drug use or possession
alcohol use or possession
texting or using a hand-held cell phone while driving.
Drivers are prohibited from driving and motor carriers shall not require or permit a driver to operate a CMV while the driver’s ability or alertness is so impaired, through fatigue, illness, or any other cause, as to make it unsafe for the driver to operate the vehicle. The exception to this rule is when there is a grave emergency and continuing to drive is less hazardous to human life than not driving.
Additionally, no driver shall be on duty and posses, be under the influence of, or us any of the following drugs or substances: schedule I substance, amphetamines, narcotics, or any other substance that renders the driver incapable of safely operating a motor vehicle. However, there is an exception for a Schedule I drug if it was prescribed by a licensed medical practitioner.
Furthermore, drivers may not use or be under the influence of alcohol within 4 hours before going on duty or operating, use alcohol while on duty, or be on duty or operating a vehicle while possessing alcohol (unless the alcohol is part of the shipment). With regard to texting, drivers may not send or read text messages while driving a CMV, including while stuck in traffic or a light. Nonetheless, texting is allowed when legally parked or to contact an emergency service. Finally, drivers may not use a hand-held mobile phone while driving a CMV unless it is necessary to communicate with law enforcement officials or other emergency services.
HOW DOES FEDERAL MOTOR CARRIER DRUG TESTING WORK?
WHAT OCCURS DURING THE TESTING PROCESS FOR DRUGS AND ALCOHOL?
Certain procedures are put in place for the testing of drugs and alcohol. The procedures for alcohol testing are as follows:
A trained Breath Alcohol Technician or Screening Test Technician conducts an alcohol screening test using an approved breath or saliva testing device.
The test is considered negative if anything under 0.02 comes back. The required paperwork is filled out and the employer is notified.
If anything 0.02 or higher results, the driver is required to take a confirmation test within 30 minutes using an approved Evidential Breath Testing. Again, the required paperwork is completed and the employer is notified.
If the confirmation test results come back as anything 0.02 or higher, the driver is required to stop all safety-sensitive functions.
If the results are somewhere between 0.02 and less than 0.04, the driver may return to duty after 24 hours. However, any driver with results of 0.04 or higher is referred to a substance abuse professional for treatment. After treatment is finished, the drivers can return to work after passing a return-to-duty test.
With regard to drug testing, the procedures are as follows.
A trained collector collects a urine sample (a driver must be observed providing the sample in some circumstances).
The collector splits the sample into 2 bottles and sends one of the bottles to a laboratory for testing.
The laboratory determines the results and sends them to the Medical Review Officer.
The officer reviews the results. If the test is negative, the employer is notified.
If the test results are not negative, the officer contacts the driver who has 72 hours to send the second bottle not tested to a different laboratory for testing. When those results are confirmed, the employer is notified. If the results are both positive, the driver is removed from duty and referred to a Substance Abuse Professional for treatment. After treatment is finished, the drivers can return to work after passing a return-to-duty test.
WHEN IS POST-ACCIDENT ALCOHOL AND DRUG TESTING REQUIRED?
The FMCSR defined an “accident” as having at least one of the following elements:
A fatality
Injury to a person requiring immediate treatment away from the scene of the accident.
Disabling damage to any vehicle requiring it to be towed away from the scene.
If an accident results in a fatality, the driver must always undergo post-accident alcohol and drug testing (even if the driver was not cited). Furthermore, if the accident results in an injury or disabling damage to the vehicle, the driver is required to undergo post-accident alcohol and drug testing if he or she received a citation for a moving violation in connection with the accident. An alcohol test is required if the citation was received within 8 hours of the accident and a drug test is required if the citation was received within 32 hours of the accident.
WHEN ARE THE TESTING DEADLINES AFTER A SEMI-TRUCK ACCIDENT?
The alcohol test should be administered within 2 hours after the accident. Additionally, the drug test must take place within 32 hours after the accident. While the drug test is pending, the driver may continue to drive the CMV assuming law enforcement has not put any restrictions on the driver and as long as there is no “reasonable suspicion” by a supervisor that the driver is under the influence of drugs or alcohol. The responsibilities of a driver who is subject to post-accident training are to remain available for testing and to refrain from consuming alcohol for 8 hours following the accident.
WHAT TYPES OF ALCOHOL AND DRUG CONDUCT IS PROHIBITED BY LAW, WHEN IT COMES TO A TRUCK DRIVER?
The FMCSA has outlined different conduct that is prohibited for both alcohol and drugs. With regards to alcohol, a CMV driver must NEVER: (1) Report for duty or remain on duty requiring the performance of “safety-sensitive functions” while having an alcohol concentration of 0.04 or greater. It is important to note that a driver found to have an alcohol concentration of 0.02 or greater but less than 0.04 must not be allowed to perform safety-sensitive functions for at least 24 hours. However, these drivers are not subject to the same disciplinary actions as someone who failed an alcohol test. A safety-sensitive function includes almost all on-duty time, including: waiting to be dispatched; inspecting, servicing, or conditioning any CMV at any time; driving a CMV; performing tasks associated with loading or unloading a vehicle; or performing any tasks associated with tending to a disabled vehicle; (2) Use alcohol while performing safety-sensitive functions; (3) Perform safety-sensitive functions within 4 hours after using alcohol; (4) Use alcohol within 8 hours following an accident if the accident requires a post-accident alcohol test; or (5) Refuse to take a DOT alcohol test. With regards to drugs, a CMV driver must NEVER: (1) Report for duty or remain on duty requiring the performance of “safety-sensitive functions” when the driver has used any substance identified in the FMCSRs (drug tests look for evidence of marijuana, cocaine, opiates, PCP, and amphetamines); (2) Report for duty or remain on duty or perform a safety-sensitive function if the driver has tested positive for a controlled substance; or (3) Refuse to take a DOT drug test.
UNDER THE FEDERAL MOTOR CARRIER SAFETY REGULATIONS, WHAT IS CONSIDERED REFUSAL OF A DRUG OR ALCOHOL TEST?
The FMCSA has identified 11 ways a driver can refuse to submit to an alcohol or drug test: (1) fails to show up to the test within a reasonable time after being told by the employer or third-party test administrator to take the test; (2) leaves the testing site before the test is completed; (3) does not provide a urine specimen for testing purposes; (4) does not permit the observation or monitoring when the driver is producing a specimen; (5) does not provide enough urine when asked and there was not an adequate medical explanation for the failure; (6) fails or declines to take a second test that the employer or collector has directed the driver to take; (7) does not allow a medical examination or evaluation as directed by the medical review officer; (8) does not cooperate with any part of the drug testing process; (9) fails to follow the observer’s instructing during an observed collection; (10) possesses or wears a prosthetic that could get in the way of the collection process; or (11) tells the collector or medical review officer that he or she adulterated or substituted the specimen.
WHAT TYPES OF DRUG AND ALCOHOL TESTING IS REQUIRED OF A TRUCK DRIVER ACCORDING TO THE LAW?
The FMCSRs controlled substances and alcohol use and testing regulations require the following tests: pre-employment drug testing, reasonable-suspicion testing, random testing, post-accident testing, and return to duty testing. Pre-employment drug tests are performed before a driver first performs safety-sensitive functions. While pre-employment drug testing is required, pre-employment alcohol testing is optional. With that said, a negative pre-employment drug test must be obtained before a driver can drive a CMV. Reasonable-suspicion testing is required when a trained supervisor has “reasonable suspicion” that a driver has violated the drug or alcohol rules. Random testing is required of all CMV drivers. At least 10% of the average number of driver positions, randomly selected, must be tested for alcohol each year, and at least 50% of the average number of driver positions must be tested for drugs. Additionally, these tests must be random, unannounced and spread reasonably throughout the year. Upon selection, a driver must report immediately to be tested. An alcohol test can only be administered either before or after a driver performed safety-sensitive functions. On the other hand, a drug test can be performed any time. In order to meet the minimum percentage requirements, a group of motor carriers (employers) may join together to form a “consortium” with all drivers joined together in one large pool. Post-accident testing is performed on a driver involved in an accident resulting in a fatality or a driver who received a moving traffic violation as a result of an accident leading to an individual having to seek medical treatment away from the scene or a vehicle being towed away. Drivers must report for the alcohol test between 2-8 hours after the accident and a drug test within 32 hours. Return to duty testing is used for drivers who had failed a drug and alcohol test, completed education and/or treatments required by a professional, and are returning to work.
WHAT STEPS MUST BE TAKEN BY A TRUCKING COMPANY IF THEIR DRIVER FAILS A DRUG OR ALCOHOL TEST OR REFUSES TO TAKE A TEST?
The FMCSCA outlines four steps that must be taken after a driver tests positive or refuses to be tested. These steps include: (1) the employer must notify the driver that he or she failed the drug test and which drug was verified as positive. The results of the drug test do not have to be sent to the FMCSA but may have to be sent to a state agency depending on the state; (2) the driver must stop performing safety-sensitive functions immediately; (3) the employer must refer the driver to a substance abuse professional; and (4) the employer needs to keep all records concerning the driver’s drug and/or alcohol tests. Additionally, the employer must provide those records to all future employers of the driver (with the driver’s permission).
Before a driver can return to duty, the FMCSA has outlined 3 steps that must be taken by the driver. These steps include: (1) the substance abuse professional must determine that the driver successfully completed the treatment plan; (2) the driver must pass a return-to-duty test (includes having a negative drug test result and/or an alcohol test result of less than 0.02); and (3) after the driver returns to safety-sensitive functions, numerous unannounced test must be passed during the following 12 months. These follow-up tests are required in the substance abuse professional’s treatment plan. It is important to note that employers are not required to discipline or terminate a driver after failing or refusing a test. It is completely up to company policy. The only requirement is that the driver does not perform safety-sensitive functions until he or she has completed all of the return-to-duty requirements.
WHAT KIND OF POLICY DOES THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION HAVE CONCERNING DRUG AND ALCOHOL TESTING?
The driver of a CMV is subject to the FMCSRs controlled substances and alcohol use and testing regulations if the vehicle requires a commercial driver’s license (CDL). It is important to note that while all CMV drivers are subject to certain prohibitions on the use of drugs and alcohol, ONLY drivers who are required to hold a CDL are subject to the testing requirements. CMVs that require a CDL holding driver must have at least one of the following characteristics: (1) have a gross combination weight rating or gross combination weight (whichever is greater) of 26,001 pounds or more, including a towed unit or units with a gross vehicle weight rating or gross vehicle weight (whichever is greater) of more than 10,000 pounds; (2) have a gross vehicle weight rating or gross vehicle weight (whichever is great) of 26,001 pounds or more; (3) be designed to transport 16 or more passengers, including the driver; or (4) be any size and transporting hazardous materials requiring notification on the vehicle. The testing regulations cover both interstate (between states) and intrastate (within one state) truck and bus operations. Even drivers based in another country are subject to testing if they are driving in the United States. Furthermore, there are certain individuals who are exempt from needing a CDL (military personnel, certain farms, emergency responders, snow & ice removers). As an employer, the testing rules apply to any employee (minus the exemptions) who operates a CMV that requires a CDL. It does not matter if the employee is full-time, part-time, casual, intermittent, occasion, volunteer, leased, or independent.
HOW DOES THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION (FMCSA) DEFINE “DISQUALIFICATION” AND WHAT ARE SOME EXAMPLES OF WAYS TO BE DISQUALIFIED?
Disqualification means: (1) the suspension, revocation, or cancellation of a commercial learner’s permit (CLP) or commercial driver’s license (CDL); (2) the withdrawal of a person’s privileges to drive a commercial motor vehicle (CMV); or (3) a determination by the FMCSA that a person is not qualified to operate a CMV under the FMCSR’s. An employer must not knowingly allow, require, permit, or authorize a driver who is disqualified to drive a CMV. In most cases, a driver must be convicted of an offense before he or she can be disqualified. Conviction is generally defined as: being judged guilty; determination that the driver has failed to comply with law; plea of guilty; forfeiting bail or collateral; payment of a fine or court cost; or violation of a condition of release without bail. The FMCSA takes into consideration how many convictions a driver has had when determining length of disqualification. These disqualifications can be as short as “no less than 60 days” or as long as “life.”
The following are a few examples of ways to be disqualified. A driver’s first conviction of being under the influence of alcohol disqualifies the driver for one year. A driver’s third conviction of following the vehicle ahead too closely disqualifies the driver for 120 days. A driver’s second conviction of leaving the scene of an accident disqualifies the driver for life. A driver’s second conviction of speeding excessively, involving any speed of 15 mph or more disqualifies the driver for 60 days. A driver’s second conviction of driving a CMV without obtaining a CLP or CDL disqualifies the driver for 60 days.