Part 382 of the Federal Motor Carrier Safety Regulations is in place to help prevent accidents and injuries resulting from the misuse of controlled substances or alcohol by drivers of commercial motor vehicles. One of the ways this regulation pushes the enforcement of this safety measure is to prohibit the driving of a CMV until the employer has been officially notified by a medical review officer (MRO) or a C/TPA (consortium/third party administrator) that the driver has been tested and the results are negative. At this point, the driver may perform safety-sensitive functions. There are occasions where a driver may continue to drive and perform safety-sensitive functions without the employer being notified or while awaiting the results of alcohol/drug testing. For example, §382.305 states that if a driver is selected and submits to random alcohol and controlled substance testing, he or she may continue to drive while the test results are pending. If a positive result is reported to the employer, the employer must not allow the driver to perform any safety-sensitive function. The same is true for post-accident testing, as found in §382.303.
Where the regulations are specific about the employer waiting for test results before allowing a driver to perform safety-sensitive functions are pre-employment (§382.301a, reasonable suspicion §382.307e2, and return to duty §40.305a). Pre-employment is where many carriers find themselves in violation of the regulations. A driver-applicant cannot perform any safety-sensitive functions, such as delivering or picking up a trailer containing freight at a customer location. This would be considered a dispatch. A motor carrier must receive a negative controlled substance test result prior to a driver’s first dispatch. These carriers are not only in violation of §382.301, they are also violating §391.31 regarding road tests, which could add up to significant fines for the carrier.