On December 13, 2016, the Federal Motor Carrier Safety Administration (FMCSA) announced the rate at which motor carriers will be required to administer random controlled substance testing on commercial drivers for 2017.
What is the random controlled substance testing rate?
Under 49 C.F.R. § 382.305, motor carriers are required annually to administer random controlled substance testing on a certain minimum percentage of its average number of driver positions. For 2017, the FMCSA is keeping the random testing rate at 25% for controlled substances, just as it was in 2016.
Per the statute, the requisite testing percentage is determined by the results of national testing surveys from prior years. § 382.305 sets the minimum testing rate at 25% for controlled substances unless at any time the data received from the surveys indicates that that violation rate (or positive test results) is equal to or greater than 1.0% for drivers tested, at which time the random controlled substance testing rate requirement will jump to 50%. The random controlled substance testing rate will then remain at 50% until for two consecutive calendar years the positive test result rate is below 1.0%, after which the FMCSA may lower the rate back to 25%.
What effect does the controlled substance testing rate have on litigation in Alabama?
If motor carriers and drivers are acting in compliance with the Federal Motor Carrier Safety Regulations, and particularly 49 C.F.R. § 382.305, then you should not expect it to have any affect of litigation. However, if a commercial driver is involved in a motor vehicle accident and the motor carrier has not been compliant with alcohol and drug testing regulations, there is potential for a problem.
Alabama recognizes a claim for negligent hiring, training, retention, or supervision of an employee. To prove such a claim in the context of a commercial motor vehicle case, a plaintiff must show that (1) the commercial driver was incompetent to operate the vehicle, (2) the motor carrier was or should have been aware of the driver’s incompetence, and (3) the plaintiff was injured as a result of the driver’s incompetence.” See Gardner v. State Farm Mut. Auto. Ins. Co., 842 So. 2d 1 (Ala.Civ.App. 2002). A showing of a driver’s incompetence must be made by demonstrating specific acts of incompetence. See Lane v. Central Bank of Alabama, N. A., 425 So. 2d 1098 (Ala. 1983).
Incompetence can be shown through failed drug tests, among other things. If a driver fails a post-accident drug test and the motor carrier has been non-compliant with FMCSA random controlled substance testing, a plaintiff may be able to establish liability against the motor carrier for negligent retention of the driver. The argument would be that had the motor carrier been in compliance with the FMCSR, it would or should have known of the driver’s incompetence, arising from his use or abuse of a controlled substance.
Whereas, if the motor carrier is compliant with the alcohol and drug testing provisions of 49 C.F.R. § 382.305, the motor carrier is less likely to be liable for a driver who is involved in an accident and subsequently fails a post-accident drug test.
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