Georgia Injury Lawyers Blog
CMV Drug and Alcohol Testing: Overview
The specifics of testing, rehabilitation, procedures for obtaining samples, qualifications of testing personnel, and other detailed requirements for drug and alcohol issues are found at 49 C.F.R., which is entitled “Procedures for Transportation Workplace Drug and Alcohol Testing Programs.” These regulations are detailed and extensive, and reference to them should be made if any questions arise about the testing program at issue.
In a quest for safety, the regulations establish a number of checkpoints that may reveal improper or illegal use by a driver. They provide both strict standards and harsh penalties. Most of the time the motor carrier is the party responsible for implementing these rules, so bad drivers inevitably can and do slip through the cracks. A motor carrier may seize on the intoxication of its driver may be seized upon by the motor carrier as evidence that he was outside the scope of employment at the time of the wreck. This defense may not even be applicable to a motor carrier operating leased equipment using an owner-operator driver. However, in the case of an employee driver, the strange truth is that the more outrageous the facts, then the stronger the defense may be. In such a case, a direct claim for negligent entrustment or retention is usually necessary to impose liability on a motor carrier that has not followed the regulations. This type of direct claim may help avoid an “outside the scope of employment” defense, since it is the motor carrier’s own negligence, not vicarious liability, which is at issue in such a claim. Accordingly, if the motor carrier argues that the use of drugs or alcohol by its driver took him outside the scope of his employment, the plaintiff will need evidence to support an argument that the motor carrier should remain responsible because the use was foreseeable.