Updated: Nov 28, 2022
Your driver was involved in a non-fatality accident that resulted in a passenger being transported to a local hospital for observation via ambulance. Are you required to have your driver tested for drugs and alcohol? In this article, we'll explore the specific circumstances that require DOT post-accident drug and alcohol testing, along with some of their nuances. But generally speaking:
DOT regulations require that CDL drivers be tested for drugs and alcohol following any accident that results in a fatality, as well as any accident in which the CDL driver is cited for a moving violation and the accident involves either (i) bodily injury to any person that requires immediate medical attention away from the scene; or (ii) disabling damage to any vehicle that requires the vehicle to be towed from the scene. DOT drug tests must be completed within 32 hours of the accident, and alcohol tests must be completed within 8 hours.
When is DOT post-accident testing required?
The Federal Motor Carrier Safety Administration's (FMCSA) post-accident drug and alcohol testing regulation is found at 49 C.F.R. 382.303. As a preliminary matter, we should note that the FMCSA's drug/alcohol testing regulations, in general, apply only to drivers that operate vehicles requiring a commercial driver's license (CDL). Generally speaking, these include trucks or truck/trailer combinations that weigh more than 26,000 lbs., vehicles of any size that transport placardable quantities of hazardous materials, and vehicles designed or used to transport 16 or more passengers (including the driver).
The post-accident testing regulation, specifically, requires a post-accident DOT drug and alcohol test of any surviving CDL driver who was performing a safety-sensitive function (e.g., driving) if the accident involves the loss of human life, or if the CDL driver receives a citation within 8 hours of the accident for a moving violation and the accident involves: (i) bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or (ii) one or more vehicles incurring disabling damage requiring it to be transported away from the scene by a tow truck or other motor vehicle.
The following chart helps illustrate when DOT post-accident testing is required:
DOT post-accident testing chart
How soon must DOT post-accident tests be completed?
If your driver has been involved in an accident that requires post-accident testing, it's important that he/she be tested within the regulatory time frames. Otherwise, you, as the employing carrier, may be cited or fined for violating the post-accident testing regulation in the event of an audit. DOT post-accident alcohol tests should be administered within 2 hours of the accident, but in no event later than 8 hours after the accident. DOT post-accident drug tests must be administered within 32 hours of the accident.
If the tests are not administered within the regulatory time frames, you must cease attempts to do so and place a note in your drug/alcohol testing files explaining precisely why the required tests were not completed in time. These notes are subject to audit, so it's important that they be thorough and explain exactly what steps you, as the employing carrier, took to try and timely comply with the testing requirements (e.g., calling all local collection facilities only to learn they are closed, driver was detained at the scene by law enforcement making it impossible for tests to be completed in time).
Is DOT post-accident testing required if a person later dies or receives treatment for an injury?
As noted above, DOT post-accident testing is required when an accident involves a fatality or when the CDL driver is cited for a moving violation and the accident involves injury to any person that requires medical attention away from the scene. But what if you only learn of a fatality well after the accident or what if a person involved in the accident only later receives treatment for an injury? The FMCSA has addressed the first scenario in the following written guidance:
Question 3: A commercial motor vehicle operator is involved in an accident in which an individual is injured but does not die from the injuries until a later date. The commercial motor vehicle driver does not receive a citation under State or local law for a moving traffic violation arising from the accident. How long after the accident is the employer required to attempt to have the driver subjected to post-accident testing?
Guidance: Each employer is required to test each surviving driver for alcohol and controlled substances as soon as practicable following an accident as required by §382.303. However, if an alcohol test is not administered within 8 hours following the accident, or if a controlled substance test is not administered within 32 hours following the accident, the employer must cease attempts to administer that test. In both cases the employer must prepare and maintain a record stating the reason(s) the test(s) were not promptly administered.
If the fatality occurs following the accident and within the time limits for the required tests, the employer shall attempt to conduct the tests until the respective time limits are reached. The employer is not required to conduct any tests for cases in which the fatality occurs outside of the 8 and 32 hour time limits.
As for the second scenario, the post-accident testing regulation itself only requires testing in situations where a person receives "immediate" medical attention away from the scene of the accident. Thus, if the person only later receives medical attention away from the scene (i.e., drives himself or herself to an ER after the fact), post-accident testing is not required.
Is post-accident testing required if the driver does not immediately receive a citation?
Another fairly common scenario is one in which a CDL driver is involved in an accident that results in bodily injury requiring medical attention away from the scene or disabling damage requiring a vehicle to be towed but does not immediately receive a moving violation citation from the accident or doesn't notify the carrier that he/she has received such a citation. Although the FMCSA hasn't released any published guidance on this topic, the analysis should be the same as the section above, which is to say that if the driver is issued the citation within the regulatory time frames for the drug/alcohol tests, the tests should be administered. For this reason, it's imperative that carriers ensure their drivers immediately report all accidents to them and whether they were issued a citation in connection with the accident. A driver's failure to report to the carrier the issuance of a citation will not likely excuse the carrier from administering the required tests.
If you employ or engage CDL drivers, it's important you understand exactly when post-accident drug/alcohol testing is required. In addition, you should also have a written drug/alcohol policy in place that clearly outlines these circumstances, and a copy of the policy should be distributed to all drivers.
If you are in need of a sample drug/alcohol testing policy that complies with the federal regulations, we have one available for purchase in our catalog of digital compliance documents at this link. For more detailed instruction on drug/alcohol testing requirements and other aspects of the federal safety regulations, be sure to check out our industry-leading online DOT compliance courses through Trucksafe Academy!