Post-Accident Alcohol and Drug Testing: Overview
Post-accident testing is a critical part of any investigation into a wreck involving a commercial motor vehicle. Despite the specific rules regarding when a test is required, it is not at all uncommon for a motor carrier to fail to perform a post-accident test. Under certain clearly-defined circumstances, an employer of a CMV driver must ensure an alcohol and drug test is administered to a driver (or drivers) within a prescribed period of time following an accident. While the regulations state when the testing must occur, they do not prohibit an employer from conducting post-accident testing even when it is not otherwise required. The regulations also provide instructions regarding post-accident alcohol (but not controlled substance) use by a driver.
Post-Accident Testing:
Post-accident drug and alcohol testing is governed by sections 382.209, entitled “Use following an accident,” and 382.303, entitled “Post-accident testing.” Combined, these two regulations provide for the following.
1. “As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce,” a motor carrier must test for alcohol in “each of its surviving drivers” where the occurrence involves:
a. a fatality, or;
b. where a traffic citation is issued and either:
b.i. bodily injury requiring treatment away from the scene occurred, or;
b.ii. a vehicle (not just the CMV) had to be towed from the scene;
2. The duty to conduct alcohol testing after an accident continues for eight hours afterwards, so that a citation issued seven hours and thirty minutes after an accident may trigger the duty to conduct an alcohol test;
3. Like alcohol, controlled substance testing is required “as soon as practicable” after an accident, under the same circumstances described above, for any “surviving drivers;”
4. The duty to conduct a post-accident drug screen extends for thirty-two hours following the accident and may be triggered by a citation issued at such a late time;
5. If an alcohol test is triggered but not administered within two hours, the motor carrier is required to document the reason why the test was not performed. Further, if a test was triggered but was not performed within eight hours, the motor carrier shall “cease efforts” to perform the test and prepare a record explaining why the testing was not done;
6. If a controlled substance test is triggered but not administered within thirty-two hours, the motor carrier shall “cease efforts” to test and prepare a record explaining why no testing was performed;
7. The motor carrier must provide its drivers with appropriate instructions and information so that they will be able to comply with post-accident testing regulations;
9. No post-accident testing is required where the accident occurs because of or during cargo loading or unloading, boarding or alighting from a stationary vehicle, or the use of a passenger car or certain types of vans, unless the vehicle is transporting either passengers for hire or certain hazardous materials;
10. No driver who is required to take a post-accident alcohol test by the Regulations may use alcohol for eight hours after the accident or until a post-accident test is administered, whichever is first. This rule would not render meaningless an employer’s own policy of testing drivers even when the regulations do not require it.