Random Testing: Overview
All motor carriers must participate in a random testing program that tests for alcohol and drugs. The regulations set out detailed requirements of the percent of employees performing safety-sensitive functions who must be tested. No reported case involving a personal injury claim against the motor carrier, and dealing with this regulation, was noted during research. This suggests that attorneys might be missing an opportunity to reveal a violation that would be especially relevant in a case involving intoxication.
While the random nature of the testing required by the regulations makes it difficult to say a driver would have been randomly tested, a failure to comply at least gives rise to the possibility that he could have been tested, and thus possibly prevented from causing the accident in question. Random drug testing logically acts as a deterrent to alchohol and drug use, a point which may not be lost on an attentive juror.
Random Testing Requirements
1. In general, a motor carrier is required to annually test, at a minimum, ten percent of the average number of driver positions in its employ or used by it for alcohol. A motor carrier must randomly test at least fifty percent of the average number of driver positions for controlled substances.
2. The Federal Motor Carrier Safety Administration Administrator may vary these rates, typically on an annual basis each January 1st. This should be checked if dealing with this issue.
3. Drivers must be selected using a scientifically valid random selection process, with each driver having an equal chance of being selected each time random testing occurs.
4. Motor carriers are permitted – and many do – to use a third party to handle the process and the third party may use a pool of drivers for its testing including drivers from other motor carriers as part of the process.
5. Tests must be unannounced and spread “reasonably” throughout the year.
6. When a driver is selected he must immediately travel to a facility for testing.
Observations
Since the point of testing is to identify drivers using drugs or alcohol, use a specifically framed interrogatory and request for production to gather information about the random testing process. If the plan does not meet DOT requirements and you have reason to suspect an intoxicated driver, probe the system with more thorough discovery. Again, the duties in subchapter 305 apply to the motor carrier. If you can gather evidence of breaches of regulatory compliance on multiple fronts, you may have success arguing a pattern of non-compliance, sufficient to warrant a separate direct claim of negligence against the motor carrier and possibly a punitive damages count.
Thus, even though the failure to randomly test cannot be said to have missed the driver in question, it can be said the motor carrier should not benefit from its failure to conduct a proper random testing program. At the least, evidence of the failure to comply and a charge on the regulations should be available.
It is also worthwhile in the right case to probe the process itself. If a third party administers the program, you may need discovery from it. If it is not performing in compliance with the regulations, determine what oversight or monitoring was or should have been used by the motor carrier to insure compliance. In essence, this type of discovery seeks to not only determine if the motor carrier was doing things right, but also to make the motor carrier realize its problems with regulatory compliance in general. From the driver, and possibly other drivers, you may discover whether testing was really conducted “unannounced” or whether drivers were really required to proceed “immediately” for testing.
If the driver involved was the subject of random testing on a prior occasion, discover those test results. It may well be that the motor carrier was on notice, from a prior test, of a problem with this driver. Even with a rehabilitation process in conformity to the regulations the argument certainly exists the motor carrier should be doing a far more frequent review of such a driver’s performance and record. This would be in line with the requirements. In a case involving evidence of a positive test and a failure to monitor on a more frequent basis, you may well be able to frame a claim of direct negligence by the motor carrier.
Pertinent Case Law
As noted above, no cases involving a personal injury claim directly addressing the “random testing” regulations were noted during research for this book. The great majority of cases involve drivers who are contesting their discharge for a positive random test, employers who are contesting a refusal by a court to uphold a discharge, or claims against the motor carrier and/or the testing laboratory for some form of defamation as a consequence of the test results being published. The validity of random testing has been upheld against a privacy argument. Keaveney v. Town of Brookline, 937 F. Supp. 975 (D. Mass. 1996). Random testing has withstood a Fourth Amendment challenge. Fontaine v. Clairmont County, 2007 WL 2627338 (S.D. Ohio Sept. 6, 2007).
As mentioned above, many cases addressing the random testing regulations deal with employees who were fired or forced to resign due to a positive test. A surprising number of these cases find that the employee was wrongfully discharged, even where he was performing a safety-sensitive function at the time he tested positive. As one court has noted, the regulations contemplate that an employee will not be terminated, but returned to work under controlled circumstances, including rehabilitation through an approved program. McIntyre v. Seminole County Bd of Educ., 779 S.2d 639 (Fla. Dist. Ct. App. 2001).
In the case of a driver who was positive on a random test, but who was not terminated but rather participated in some type of rehabilitation program and kept his job, determine what monitoring was done of that driver. Again, regulation requires that a driver be reviewed “at least annually.” A positive drug or alcohol test would seem to be a very good reason for a more-frequent-than-annual-review. Thus, even if the driver was not found to be intoxicated (or was possibly not tested) when the accident in question occurred, you may have an argument the motor carrier should have been watching him more carefully. If he had a number of tickets or accidents between the return to work after rehabilitation and your collision which the motor carrier did not discover through a more frequent review, you may be able to challenge the motor carrier for letting him remain on the road. In essence, argue that a motor carrier has less leeway to argue what it did not know about such a driver.