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Trucksafe's President Brandon Wiseman and Vice President Jerad Childress are transportation attorneys who have represented and advised hundreds of motor carriers (both large and small) on DOT regulatory compliance. Brandon and Jerad are regular speakers at industry events and routinely contribute to industry publications. They are devoted to helping carriers develop state-of-the-art safety programs, through personalized consulting services and relevant training resources. 

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FMCSA to require states to downgrade CDLs due to drug/alcohol violations

The Federal Motor Carrier Safety Administration (FMCSA) will soon be requiring state driver's licensing agencies (SDLAs) to take decisive action against commercial drivers who have violated the federal drug/alcohol prohibitions, most notably downgrading CDLs until such drivers comply with the return-to-duty requirements outlined in Parts 40 and 382 of the federal rules.

In a Final Rule titled "Controlled Substances and Alcohol Testing: State Driver's Licensing Agency Non-Issuance/Downgrade of Commercial Driver's License," (available here), the agency explained that it is:

amending its regulations to establish requirements for State Driver’s Licensing Agencies (SDLAs) to access and use information obtained through the Drug and Alcohol Clearinghouse (DACH or Clearinghouse), an FMCSA- administered database containing driver-specific controlled substance (drug) and alcohol records. SDLAs must not issue, renew, upgrade, or transfer a commercial driver’s license (CDL), or commercial learner’s permit (CLP), as applicable, for any individual prohibited under FMCSA’s regulations from performing safety-sensitive functions, including driving a commercial motor vehicle (CMV), due to one or more drug and alcohol program violations. Further, SDLAs must remove the CLP or CDL privilege from the driver’s license of an individual subject to the CMV driving prohibition, which would result in a downgrade of the license until the driver complies with return-to-duty (RTD) requirements.

This new requirement comes on the heels of the FMCSA's implementation of the national Drug/Alcohol Clearinghouse, which, as we described in detail in this article, is meant to serve as a repository of drug/alcohol testing information for commercial drivers who are subject to the federal drug/alcohol testing rules, making it easier for employers, law enforcement, and SDLAs to determine whether drivers are prohibited from operating due to drug/alcohol testing violations.

According to FMCSA data, there have been over 95,000 positive drug test results reported to the Clearinghouse since its implementation last year. Drivers who test positive for drugs or alcohol (or otherwise violate the prohibitions of the federal rules) are prohibited from operating a CMV unless and until they complete the return-to-duty process, which involves meeting with a Substance Abuse Professional, completing a substance abuse treatment plan, and submitting to periodic follow-up tests.

Now that the industry has a centralized and standardized repository of drug/alcohol testing violation information on commercial drivers, the FMCSA is taking the next logical step in ensuring that drivers who have violated these rules do not continue operating CMVs until they have completed the return-to-duty process.

The Final Rule is set to take effect on November 8, 2021; however, SDLAs will have until November 2024 to fully implement the requirements. By that date, SDLAs will be prohibited from issuing CLPs and CDLs to drivers whose Clearinghouse reports indicate they are prohibited from operating a CMV. Additionally, they will be required to downgrade existing CDLs of these drivers. Once these drivers complete the return-to-duty process, SDLAs are to "promptly reinstate the commercial driving privilege to the driver’s license, and expunge the driving record accordingly."

Notably, the Final Rule also clarifies the existing regulations pertaining to employers' "actual knowledge" of a driver's drug/alcohol use. The regulations currently require employers to report their actual knowledge to the Clearinghouse, which is akin to a positive drug/alcohol test and will result in the same prohibitions for the driver. The Final Rule clarifies that a CLP or CDL holder who is charged with DUI in a CMV has violated the federal rules, regardless of whether the driver is ultimately convicted of the offense. Therefore, the driver is prohibited from operating a CMV until completing the return-to-duty process, and employers are to report this to the Clearinghouse as "actual knowledge."

If you have questions about these changes or drug/alcohol testing violations in general, please feel free to contact us. For in-depth online training on these topics, check out our courses offered through Trucksafe Academy.

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