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By John M. Nunnally
Transportation Law
Plaintiffs’ Use of Federal Regulations – Creating New
Rules Everyday!
Many of us are familiar with plaintiff attorneys’ attempts to use the Federal Regulations to bolster their negligence claims. They attempt to elevate a standard of care violation into the violation of a safety rule. The source of much of their claims are the Federal Motor Carrier Safety Regulations (FMCSR). While we could spend a great deal of time discussing the plaintiff’s arguments and attempts, this brief article will focus on one of the biggest issues plaintiffs’ attorneys use to attempt to create an issue, namely, drug and alcohol testing.
  49 C.F.R Parts 40 and 382 deal with drug and alcohol testing. It is important to know when they apply, and perhaps even more importantly, when they do not. It is also critical to understand the purpose behind the rule. It is amazing how plaintiffs’ attorneys will attempt to interpret and create “rules” that simply do not exist. Know the rules better than plaintiff’s attorneys so you are ready to combat them and their experts.
 John M. Nunnally
There are several times that drug and alcohol tests are required: pre-employment, reasonable suspicion, random, post-accident, return to duty, and follow up to a positive drug-test. The one we deal with most often is post-accident testing for truck drivers. § 382.303 states that a motor carrier must test a driver for alcohol and controlled substances after an accident that involves a fatality or traffic citation to the driver. However, in addition to the citation to the driver there also has to be bodily injury with immediate medical treatment away from the scene, or disabling damage to any motor vehicle requiring that it be towed away, before the testing becomes required.
 If the alcohol test is not conducted with two hours, the company can and should maintain a record stating the reason the test was not promptly administered. The company can cease attempts to get a test after eight hours; but again, the reason the test was not promptly administered need to be maintained. Finally, a driver that receives a citation more than eight hours after an accident does not need to be tested, assuming no fatality has occurred.
 Plaintiffs’ attorney will argue that a post-accident test was required simply because the vehicle was damaged, or that there was a citation, or will create numerous other reasons to imply that the rules were not properly followed, and therefore, there was a safety violation. Trial judges are not experts on the Federal Regulations and can be swayed by carefully selected and edited arguments. Defense attorneys need to be ready to combat those arguments.

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