“But I only had two beers.”
“But it’s legal in this state.”
“But my doctor prescribed it.”
No. No. And maybe not. Those excuses don’t cut it when it comes to a truck driver failing a federally prescribed test for drugs or alcohol. A fail is a fail—regardless of whether the driver’s blood alcohol level was below local DUI limits, the opioid was prescribed by a doctor, or the recreational marijuana was legal. That’s because state laws differ from federal law. I discuss those differences below and then touch on related evidentiary and employment issues.
Local vs. Federal Limits
Local laws may vary, but the general rule is that no one shall operate a motor vehicle while under the influence of drugs or alcohol or with a blood alcohol concentration (BAC) of 0.08% or more.
Federal law, namely 49 CFR Part 382, is stricter than and preempts state and local laws. For CDL drivers operating trucks with a GVWR of 26,001 or more pounds, the Federal Motor Carrier Safety Regulations prohibit the following:
A positive drug test is a violation, “except when the use is pursuant to the instructions of a licensed medical practitioner … who is familiar with the driver’s medical history and has advised … the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle.” DOT regulations do not, however, permit the use of “medical marijuana” even if allowed by state law.
When Testing Is Required
An employer may not knowingly allow a driver to remain on duty while in violation of any of these federal prohibitions. And it must administer tests to ensure compliance. Mandatory testing is required pre-employment, post-accident, at random, under reasonable suspicion, and upon returning to duty from an alcohol or drug violation.
Pre-employment Testing
Prospective employee drivers must undergo testing for controlled substances, unless the driver participated in a controlled substances testing program within the last thirty days, and no prior employer of the driver has records of a controlled substances violation within the last six months, and the driver either 1) was tested for controlled substances within the past six months, or 2) participated in a random controlled substances testing program for the last twelve months.
Post-Accident Testing
Post-accident testing for alcohol and controlled substances is required if:
- The accident resulted in a fatality.
- The driver was issued a citation for a moving violation within 8 hours (for alcohol) or 32 hours (for controlled substances) of the occurrence and the accident involved either 1) bodily injury resulting in immediate medical treatment away from the scene, or 2) disabling damage to one or more vehicles requiring that it be towed away from the scene.
No driver shall refuse to submit to a required post-accident drug or alcohol test. And no driver shall use alcohol for 8 hours after being involved in an accident that requires post-accident testing.
Random Testing
Each year, employers must randomly test at least 10% of their drivers for alcohol and 25% of their drivers for controlled substances. The FMCSA may change those percentage rates in response to industry-wide violation rates.
Reasonable Suspicion Testing
If an employer has reasonable suspicion to believe that a driver has violated the federal prohibitions regarding controlled substances and alcohol use, meaning that there exists “specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the driver,” then the employer must require the driver to submit to testing.
Return-to-duty and Follow-up Testing
An employer who learns that a driver has failed a drug or alcohol test must immediately remove him from performing any safety-related functions, including driving. If the driver completes his prescribed education and/or treatment and if the employer decides to give him a second chance, the driver must take a return-to-duty test and (before driving) must have a negative drug test result and/or an alcohol test with a BAC of less than 0.02%. And then the driver must undergo follow-up testing. The employer is the “sole determiner of the number and frequency of follow-up tests and whether these tests will be for drugs, alcohol, or both,” but it must, at a minimum, require that the driver be subject to six unannounced follow-up tests in the first 12 months after returning to work.
Evidentiary Issues
In the real world, a failure is a failure. But in the courtroom, a failure is not necessarily admissible in evidence. It is negligent to drive a truck while impaired by alcohol or drugs. But a test detecting a BAC of 0.04% or a trace amount of a controlled substance does not in itself prove impairment. Some courts simply allow the test result in and let the jury decide its relevance and weight. But others, recognizing the profoundly prejudicial nature of such evidence, require more: namely, corroborative evidence both that the driver was actually impaired and that his impairment was a proximate cause of the accident. Fellow Goldberg Segalla attorneys discussed that in a related article in which they explained both the rationale for requiring more and why that rule should also apply to evidence of a driver’s hand-held phone use.
Employment Issues
Although a judge is bound by the rules of evidence, an employer is not. A motor carrier can justifiably terminate a driver for drug or alcohol use violations. Carianne Torrissi, my former partner who now serves as V.P. Risk Management and General Counsel for Samuel Coraluzzo Co., wrote about that and examined whether addiction for opioids or other controlled substances falls under the protective umbrella of disability as defined by the Americans with Disabilities Act (ADA). In her article, she concluded that the notion of disability oftentimes need not even come into the conversation because ADA protection only extends to “qualified” individuals, meaning individuals who follow federal regulations. Truck drivers in violation of federal drug and alcohol use regulations are not qualified to drive and are therefore not entitled to protection under the ADA. Torrissi noted that the only scenario in which a driver could receive disability for drug addiction is if he/she is “no longer using drugs illegally and [is] receiving treatment for drug addiction.”
Workers’ Compensation Issues
Workers’ compensation is generally a no-fault system designed to be a compromise between employers and employees to provide wage replacement benefits and medical treatment for workplace injuries. It’s a trade-off: employees generally get benefits regardless of their own fault and without having to prove their employer’s fault, and in exchange employers get reasonable caps on damages and immunity from being sued outside of the workers’ compensation system.
Since it’s a no-fault system, does that mean a truck driver is entitled to workers’ compensation benefits even if he’s hurt in a crash and then fails a post-accident drug or alcohol test? It depends.
Unlike the Federal Motor Carrier Safety Regulations, workers’ compensation rules are state specific. At one end of the spectrum, proof of intoxication by drugs or alcohol is enough to support a denial of workers’ compensation benefits even if the intoxication did not cause the injury; at the other end, the proof must be not only that the employee was intoxicated but that his intoxication was the sole cause of his injury. That dramatically higher standard resulted, for example, in one state supreme court affirming an award of full benefits to a truck driver who drank ten beers the day before starting a 3:00 a.m. shift, fell asleep at the wheel, crashed, and was found to have a BAC well above the legal limit.
Are those rules too extreme? Most states think so and instead require the employer to prove that the driver’s intoxication was a cause of his injury, which (depending on state law) may result in his benefits being reduced or eliminated altogether.
The viability of an intoxication defense to a workers’ compensation claim stemming from a truck accident therefore depends both on the circumstances of the accident and on state law, which variably requires:
- Proof that the driver was intoxicated
- Proof that the driver’s intoxication was a cause of the accident and his injuries
- Proof that the driver’s intoxication was the sole cause of the accident and his injuries
A word of warning: The federal regulations dictate when a driver must undergo post-accident testing for alcohol and controlled substances. Pursuing proof of impairment and causation beyond the test results is risky business if the crash also caused injury to someone other than the driver. The same proof that reduces liability for workers’ benefits may dramatically increase liability for harm caused to others.
A Reminder About Driver Consent
Be aware that 49 CFR § 40.321 provides that “a service agent or employer participating in the DOT drug or alcohol testing process [is] prohibited from releasing individual test results or medical information about an employee to third parties without the employee’s specific written consent,” which “means a statement signed by the employee that he or she agrees to the release of a particular piece of information to a particular, explicitly identified, person or organization at a particular time.”
Conclusion
Mark Twain wrote, “I love a drink, but I never encouraged drunkenness by harping on its alleged funny side.”
There is no funny side of the federal regulations prohibiting drug and alcohol use by truck drivers. Their purpose is all business: “to establish programs designed to help prevent accidents and injuries resulting from the misuse of alcohol or use of controlled substances by drivers of commercial motor vehicles.” It is therefore not surprising that the prohibitions are strict, the mandatory testing is thorough, the employment consequences of a violation are severe, and (if admissible) the prejudicial effect in a courtroom can be significant.
For more information about this important topic see DOT Guidance on Compliance with DOT Drug and Alcohol Testing Regulations.
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