Georgia Injury Lawyers Blog

CMV Driver Litigation: Retention Of Drug & Alcohol Records

January 15, 2016 | by Slappey & Sadd, LLC

Discovery and Retention of Drug and Alcohol Records: Overview

The regulations erect hurdles to production of drug and alcohol testing records and privileges which may prevent the motor carrier from disclosing results even when it would like to do so. Note that a subpoena will not suffice and may be met by a Motion for Protective Order. The regulations describe the procedure to obtain these records. Motor carriers are required to maintain such documents, but they may not be part of the DQ file. Knowledge of the regulations regarding retention will assist you in framing requests, preparing an appropriate motion and knowing what to request so that you do not waste time and energy in a motions battle.

Discovery and Retention of Testing Records

CMV Driver Litigation: Drug & Alcohol Training

January 11, 2016 | by Slappey & Sadd, LLC

Drug and Alcohol Training: Overview

The regulations provide explicit directions for required education of drivers on alcohol/drug use policies, and the legal ramifications of drug and alcohol use while performing safety sensitive functions. Further, the regulations require certain training of driver supervisors to enable them to determine whether reasonable suspicion exists to order testing.

Required Drug and Alcohol Training for Drivers and Supervisors

CMV Driver: Consequences for Drug & Alcohol Use

January 6, 2016 | by Slappey & Sadd, LLC

Consequences for Drug and Alcohol Use: Overview

The regulations provide rules for the driver who has tested positive in a number of sub-parts. For example, at 49 C.F.R. 382.215, a driver who tests positive for a controlled substance can not perform any safety-sensitive function. Explicit instruction is set forth at 382.501 et. seq.

Consequences for Drug and Alcohol Use

CMV Drug & Alcohol Use: Case Law

January 4, 2016 | by Slappey & Sadd, LLC

Pertinent Case Law

In a case involving a challenge to the FMCSA regulations governing assignment of safety fitness ratings of motor carriers, the Court of Appeals for the District of Columbia held that violation of regulations pertaining to alcohol use, and by implication controlled substance use, were properly designated as “acute” by the Highway Administration. Am. Trucking Assoc. v. U.S. DOT, 166 F.3d 374, 334 U.S. App. D.C. 246 (1999). The court recognized the agency’s distinction between such “acute” violations, which involve “noncompliance which is so severe as to require immediate corrective actions by a motor carrier regardless of the overall safety posture of the motor carrier” and “critical” violations, which are those which “noncompliance relates to management and/or operational controls.” ATA at 381. The court noted, “An example [of an acute violation] is 49 C.F.R. 382.201 which prohibits knowing use of a driver with a blood alcohol concentration of .04% or greater.” Id. This distinction highlights the significance of a motor carrier’s breach of these regulations, and may be helpful in persuading a court to charge the jury, even where causation may be difficult to show by direct evidence. Certainly the distinction is helpful in supporting a claim for punitive damages.

A low level positive finding of marijuana metabolites was insufficient to survive defendant’s summary judgment motion on plaintiff’s claims for breach of 382.213 by the motor carrier driver. Chubb v. Ryder Integrated Logistics, Inc., 2009 WL 2968434 (D. Kan Sept. 10, 2009). A number of factors were referenced by the court in excluding the evidence and granting summary judgment on the claim. First, defendant’s expert (plaintiff had no expert) opined that that the levels were insufficient to cause intoxication. The driver, testified he last smoked a number of days before the accident- and certainly not while driving. The levels detected were below certain cut-off points established in the regulations pertaining to workplace drug and alcohol testing programs. See 49 C.F.R. 40.87. The police at the scene saw no signs of impairment, and the court noted that the regulations “do not prohibit its [marijuana’s] off-duty use.”

CMV Drivers: Drug & Alcohol Use

December 30, 2015 | by Slappey & Sadd, LLC

Drug & Alcohol Use by Drivers: Overview

Use of alcohol or controlled substances by employees performing “safety sensitive functions” before or while driving is strictly regulated. However, there are certain limited exceptions which to be kept in mind if a positive post accident test result is uncovered. The regulations create an “actual knowledge” standard a motor carrier may use as a shield while arguing a driver was outside the scope of employment when operating a CMV while impaired. In such a situation, it is critical to inquire of the motor carrier representatives, starting with but not ending at the Safety Director, in order to test the motor carrier’s efforts to detect and prevent drug/alcohol use by drivers. While there may be no “actual knowledge” on the occasion, a showing that the motor carrier was unfamiliar with the requirements or did not create a way to properly enforce them may be helpful. The see no evil, hear no evil defense should rarely succeed.

Drug & Alcohol Use

CMV Drivers: Reasonable Suspicion Testing & Case Law

December 29, 2015 | by Slappey & Sadd, LLC

Observations

The specific requirements for an alcohol or controlled substance test are carefully described in the regulations. A written record describing these “contemporaneous, articulatable observations” must be prepared before the test results are reported. If reasonable suspicion testing occurred on the subject driver, review not only the results, but the document describing the basis for requiring the test. If a driver acts or appears to have consumed alcohol or used drugs but tests negative, this could mean the driver has a medical issue. Further, the documentation could provide a basis for arguing the driver should have been subject to more frequent than annual review. (See subsection I.A.6).

The reasonable suspicion subsection requires that the decision to order testing be made by a supervisor or company official who has been trained as required by § 382.607. In the right case, probe this aspect of the motor carrier’s operations: Who has been trained? Have they ordered any driver to be tested? How often did the subject driver interact with a supervisor who was trained? Did the motor carrier create interaction points between the driver and trained supervisor on any kind of a reoccurring or systematic basis? Does the motor carrier require that a supervisor with training be at each location/terminal and on duty at all times while the terminal is operating? If the motor carrier has not made certain it has trained supervisors at logical contact points, and you have an intoxicated driver accident, you may have an argument of individual negligence on the part of the motor carrier for failing to make certain someone was monitoring for reasonable suspicion purposes.

Commercial Vehicle Motorists: Reasonable Suspicion

December 28, 2015 | by Slappey & Sadd, LLC

Reasonable Suspicion (382.307): Overview

The implications of reasonable suspicion testing are significant. It shows that a supervisory employee trained to recognize signs of alcohol or drug use was concerned enough to order the driver to undergo testing. This presents an expense to the employer, in the test itself, lost time and productivity, and administrative activities. Should the test be administered and found positive the motor carrier must make a written record of the observations which prompted the test, but there is no requirement that the record of the reason for the test, or the result, be placed in the DQ file. Discovery should be considered with this gap in record keeping requirements in mind.

Reasonable Suspicion Requirements

CMV Drivers: Random Drug Testing Regulations

December 23, 2015 | by Slappey & Sadd, LLC

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.

CMV Litigation: Post-Accident Drug & Alcohol Testing

December 22, 2015 | by Slappey & Sadd, LLC

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.

CMV litigation: Post-Accident Drug & Alcohol Testing

December 18, 2015 | by Slappey & Sadd, LLC

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: