Brad Pistotnik Law
Abogado El Toro

Drug Use and Truck Drivers

A leading cause of truck accidents is truck use of stimulants and other drugs to fight fatigue.

In order to drive longer hours with short periods of sleep, the bad truck driver will turn to stimulants like methamphetamine, ice, crystal, speed, Dexedrine, Ritalin, Adderall and a host of other stimulants. These drugs can be readily purchased at drug stops where tired drivers are known to frequent. Some drivers may turn to cocaine and crack. Regardless of the drug or type of stimulant, they do not provide for a safe truck driver in need of sleep and rest. All of these drugs have a mind altering effect on the human body. They cause hallucinations, breaks in thought patterns as well as many other side effects that create an unusually dangerous system for the truck driver. The driver may feel confident that he/she can drive another 500 miles, when, in reality, the truck driver should be pulling off in their sleeper or to a motel to get a decent rest. Some drivers may choose to seek Cannabis, commonly known as pot, weed and other street names. Different varieties of marijuana have different effects on the driver. Drives seeking marijuana will look for the type of pot that gives them a talkative speedy feeling in contrast to the marijuana that makes a person slow down. The driver Marijuana, also known as weed, smoke, cannabis or grass will make one feel very relaxed and laid back. Instant intake impairs concentration which causes the person to be unable to perform complex tasks due to extreme sudden fatigue. The long-term effects of using marijuana include paranoia and heart problems additionally can give rise to breathing and respiratory problems which has a coincidental relationship to sleep and fatigue. One study in 1999 found that marijuana was present in 4% of accidents. That figure rose to 12% in 2010. Ecstasy or MDMA comes in a pill form. When taken the driver may have a feeling of super levels of energy. The mind altering effects of this type of stimulant will wreak havoc on the truck driver’s ability to concentrate. It can and will lead to foreseeable accidents and catastrophe. Prescription medications may be as bad as street drugs. Truck drivers that have back pain from long periods of sitting may end up taking Lortab, Percocet, Norco, and other similar pain medications. These prescriptions are easy to get. With more and more prescriptions of pain medications occurring across the country by liberal doctors known as script doctors, the truck driver may be able to obtain these legal drugs to drive. The problem is that most of these medication have warnings and adverse risk statements that indicate the patient should not drive on the medication. These types of medications will reduce a driver’s thought process and create a longer perception and reaction time to perceive and react to a hazard on the roads. Even 2-3 seconds may be enough difference to cause a truck driver to cause an accident. Prescription pain killers are known to be addictive. They become worsened by alcohol. They slow down the respiratory system and the truck driver becomes slower and slower ultimately resulting in the inability to be safe while driving a large tractor-trailer. Truck drivers should have regular screening for medical clearance if they have depression or anxiety disorders. These prescribed medications like Prozac, Wellbutrin, Zoloft, Effexor, Pristiq, Cymbalta, Trazodone, Remeron, Lexapro, Celexa, Paxil and many others are all a form of anti-depressant medication that affects the serotonin and dopamine in the brain. These types of medications have an effect on certain brain chemicals. Neurotransmitters, especially serotonin, can be off and cause depression. The medications help to affect neurotransmitters. Each different medication affects the neurotransmitters in a different way. The medication helps with the depression caused by the imbalance of brain chemicals and neurotransmitters. Each type of antidepressant affects these neurotransmitters in slightly different ways. The actual mechanism of reducing depression is generally unknown. These medications all have warnings to the patient to make sure that they do not have adverse effects before driving or operating heavy machinery. It is known that they will slow down the perception and reaction time of the driver. The consumption of them while operating hazardous instrumentalities of death like 18 wheelers is questionable at best. Anti-anxiety medications like Valium and Xanax are no better. They have severe reductions on the respiratory and metabolic rates of the patient. In turn, they reduce the driver’s ability to perceive and react to hazards and dangers on the road. With anti-depressants and anti-anxiety medications the risk that follows consumption of the prescribed medication is a risk of momentary pauses and sleep while driving. The driver may not know how tired they really are. Long hours combined with unsafe prescription medications lead to micro sleep moments where a driver dozes off for a second or two. He/she then snaps out of the period of zombie like consciousness and awake to find them in another lane of travel or even into head-on traffic. The dangers of street and prescribed drugs is a known hazard. Truck driving companies are required to drug test the driver upon hire and many do so at random intervals during a year. The FMCSR requires both drug and alcohol tests immediately after an accident. Why? Because truck drivers using drugs and alcohol is known widely in the industry. The FMCSR was partially designed to look out for, detect and prevent addicted drivers from driving large trucks. Many states have now instituted statutes, laws and ordinances that make it an illegal event similar to driving while intoxicated (DWI) where a driver has driven on a prescription medication against the manufacturer’s warnings not to drive. At least twelve states have made it illegal to drive if a certain amount of a prescribed drug is found in a person’s blood. Some of the states are Arizona, Minnesota and Wisconsin. Every year, more and more states are adding new laws to make driving while intoxicated on prescription drugs to be an illegal offense punishable with jail time and fines. The FMCSA and most state governments are aware that driving on certain types of mind altering prescription drugs is known to impair driving skills, judgment, reaction time and perception time. Random monthly drug testing of large truck drivers on an unknown schedule through a simple urine test will eliminate most of the truck drivers who are likely to commit this type of offense. The truck driver can then be given an alternative of Some studies in the U.S. have identified driver intoxication rates as high as 40 percent of the drivers. Law officials and the FMCSA routinely perform preventability studies of individual crashes with large trucks and calculate the statistical level of intoxication. Motor carriers who do not have proper drug testing schedules and post-accident drug and alcohol testing of drivers can be fined or lose operating authority under DOT audits. Recognition and Regulation of Truck Drivers for Drugs and/or Alcohol For whatever reason, the upward trend of truck driver’s use of harmful prescribed and illegal Street drugs is on the rise. In past decades, the rate of truck driver use of drugs was less than today. Perhaps this is because of the number of increased pharmaceutical medications prescribed by doctors, combined with the illegal Street drugs that are modifying chemical compounds of prior drugs in order to reach a chemical structure that is a designer drug which may not be currently classified as an illegal drug under DEA illegally defined substances. Part 382.301 of the FMCSR discusses the concept of pre-employment testing. It requires a prior test to the first time a driver who performs safety-sensitive functions for an employer. It requires the driver shall undergo testing for controlled substances, as a condition prior to being used in the motor carrier’s operations unless certain exceptions apply. The same regulation requires that no employer shall allow a driver to perform safety-sensitive functions unless the employer has received a controlled substance test result indicating a verified negative test for that driver. Part 382.303 FMCSR is on post-accident testing. This section requires the motor carrier to test the driver for alcohol as soon as practicable following an occurrence involving a commercial motor vehicle, operating on a public road in commerce. This requires the employer test for alcohol where a driver has received a citation within 8 hours of the occurrence. It also requires testing or there has been an accident of bodily injury where that person has had to receive medical treatment away from the scene of the accident. It requires testing where there is disabling damage as a result of a motor vehicle accident and one of the vehicles is transported away from the scene by a tow truck or other motor vehicle. The same regulation requires that a motor carrier shall drug test the driver as soon as practicable following an accident involving a commercial motor vehicle operated on a public road in commerce each for each surviving driver who performs safety-sensitive functions with respect to the vehicle if the accident involved loss of human life or if the driver has received a citation within 32 hours of the occurrence or accident under State or local law for a moving traffic violation arising from the accident where the error involved bodily injury to any person who receives medical treatment away from the scene of the accident or one or more of the motor vehicles in the accident had disabling damage as a result of the accident and was required to be transported away from the scene by a tow truck or other motor vehicle. These regulations are sometimes confusing to the employer of the driver or motor carrier. As a result of that confusion the FMCSA created a table to guide the employer in the necessary steps to test for drugs or alcohol. The FMCSR has a table under 382.303 and be which is useful for determining whether testing is necessary. Motor carriers are able to review that table for a quick reference guide to determine when alcohol or drug testing is mandated by the FMCSR. Random drug and alcohol testing is controlled by Part 382.305 of the FMCSR. This regulatory requirement states that every employer shall comply with the requirements of this section and that every driver shall submit to random alcohol and controlled substance testing as required. The regulation recognizes that the FMCSR Administrator’s decision to increase or decrease the minimum annual percentage rate for alcohol testing is based on the reported violation rate for the entire industry. All the information used for that determination is drawn from the information supplied by the entire industry pursuant to Part 382.403. In order to ensure the reliability of the data, the FMCSR Administrator considers the quality and completeness of the reported data and is authorized to obtain additional information or reports from employers. The administrator is authorized to make appropriate modifications in calculating the total industry violation rate. Certain specific guidelines are given to the administrator to increase or decrease the annual percentage testing rate as necessary. The same regulation addresses testing for controlled substances based on the reported positive rate for the entire industry. That same information is drawn from the controlled substance management information system reports that are required by Part 382.403. The administrator is authorized to look to employers and other reported data from information systems in order to make appropriate increases and decreases of the testing requirements. The Causes of Increased Drug Use in Truck Drivers The yearly analysis by the FMCSA Administrator helps to determine the amount of random drug and alcohol testing that must be accomplished as a minimum standard in order for the motor carrier to retain appropriate licensure and authority to operate. The increasing economy and commerce create an upward direction for miles driven by truck drivers. As each additional mile is driven there is an assumed need for increased regulation to protect the motoring public. The upward trend may be likely to some or all of the following: Availability
  • Studies have shown that the use of Marijuana prompts the use of other drugs. Pot has been called a gateway drug. With the recent legalization of marijuana for both health and consumer use, the availability is rising. Both Colorado and the state of Washington have marijuana for sale for health reasons or for recreation use. Truck drivers have access to both states since many truck drivers drive across all 48 contiguous states.
  • Cocaine use has been fairly steady. As the Mexican cartels increase in number, their distribution chains increase across the U.S.
  • Ecstasy has led to chemically restructured modifications of MDMA into chemical structures that sometimes remain legal until their use become widespread and the DEA determines a new chemical compound to add tdo the list.
  • Social relaxation. As more and more people find marijuana and other street drugs to become acceptable their availability at truck stops becomes more widespread.
  • With social relaxation, dealers have increased networks to assist in the delivery and distribution of each class of drug.
  • Doctors have increased the prescription of pain killers in certain parts of the country. These clinics for painkillers move quickly from state to state. A recent crackdown in Florida provided evidence of the pandemic sale of prescription pain killers.
Demand
  • Demand of drugs has increased significantly.
  • Increased demand leads to increased distribution networks making the truck stops a perfect place for nationwide access.
  • While motor carriers drive millions of additional miles per year this pushes the truck drivers who work by the mile to driver more and more. In order to drive more miles while fatigued, stimulants help the driver work longer hours.
Addiction
  • Drivers who turn to stimulants or other mind altering medication may mean well. Many of these street and prescription have an addictive quality to them. The drugs that are not as addictive may have a different mechanism of addiction propel the use by the drivers. For example, the driver uses stimulants creating a lack of sleep. The longer they use, the more tired they become. In turn, they increase the use of the drug to help them function while sleep deprived.
  • Rehabilitation centers are expensive. Many drivers are self-employed without insurance. Those drivers cannot take the time off nor do they have the funds to pay for the rehabilitation centers without either losing money to feed their family or losing their contracts with the main carriers they drive or.
  • Larger carriers who provide health insurance do not set up the necessary pay systems that would allow the addicted driver to take off a month to go through rehab. Without systems in place that rewards drivers for recognizing and treating addiction, the recovery process will not commence. The drivers will continue to drive.
Procedural flaws in the Motor Carrier Health and Recovery Plans
  • Motor carriers do not want to have drivers take off time for recovery. Those carriers that set up self-funded ERISA plan do not write health insurance plans allowing for their employees to have sufficient paid time while a driver is in treatment. The plans for insurance are underfunded and lack quality health care benefits. The lower the benefits and higher the deductible, the less likely it is that a truck driver will use the available insurance to seek recovery.
  • Motor carriers know that roadside inspections are infrequent. They understand that the appearance of alertness will likely prevent law enforcement from seeking a drug or alcohol test until it is too late, after the moment of the accident has occurred. The drug dealers are not cut off at the root. The drug users are caught but the drug dealers are becoming even harder to get to.
  • Some motor carries completely ignore the mandatory testing requirements and simply place drivers on the road without having adequate certification that the driver has been adequately and appropriately tested. These types of motor carriers often fail to follow the random testing protocols until an audit from the DOT and FMCSA occurs. The cost associated with random audits may be a reason for failure to adhere to the required compliance. Every dollar that is not spent creates the potential for an additional dollar of profits. Safety costs. Truck drivers and smaller motor carriers that care little for safety often choose to skip the necessary testing protocols in order to save a buck. If an audit does not occur, they may never be caught. Everyone is aware that the government funding to conduct roadside inspections is insufficient to adequately perform all inspections and audits that would create a safer national system. Unfortunately, self-regulation occurs infrequently.
Procedural Steps Can Be Taken To Minimize Intoxicated Truck Drivers From Operating In Interstate Commerce Intoxication of truck drivers due to either alcohol or illegal drugs and prescribed medications is an ongoing difficult national crisis which is hard to repair in a rapid fashion. The first, and most obvious step, is to perform random drug and alcohol testing of all truck drivers at least one time per month on an unspecified alternating day of the week. Drivers who are addicted can easily predict the period of a normal random urine test. Those addicted drivers are able to control themselves for a period of time and to stop consumption of alcohol and/or drugs for brief periods just prior to the known period of testing. This random type of testing would have to be for all drivers in order for to have much true lasting effect. Presently, many companies simply randomly pick drivers. The entire fleet is not tested on a monthly basis. Testing the entire fleet on an unknown random date each month would allow for much greater safety. A second step that could be taken to help with the present system would be to provide education to the drivers of the dangers of intoxicated driving. Comprehensive testing would have to follow. This step would simply help to bring up driver awareness of the dangers and hazards of operating a commercial motor vehicle while in an intoxicated state. Education, by itself, will not alleviate the problem. The more that the driver is educated with knowledge about how dangerous a commercial motor vehicle is, the more likely the driver will develop a keen understanding of why you cannot operate a large truck or tractor-trailer due to the sheer force of this destructive instrument. A third step that could be taken, would be to compensate drivers for passing random drug and alcohol tests over a certain period of time where a compensation system of bonuses is provided. This type of compensation system, much like Pavlovian training, would be useful for a large group of non-addictive personality types. It would still not prevent those drivers who are highly addicted to alcohol and/or illegal substances from continuing to driver across the nation. A fourth type of system could be put into place, which would be a procedural monitoring system where the motor carrier would implement software systems. This system would have access to the drivers’ medical files and prescription history. The likelihood of this passing scrutiny through HIPPA laws and/or constitutional muster under the Fourth Amendment would likely fail. This type of invasion of privacy would likely lead to an intense and rapid drop of available truck drivers. Indeed, it might eliminate many of the truck drivers across the nation. The correct answer to fix the system would be to set up a combination procedural system that educates and tests the drivers. The same system would compensate and bonus. Those drivers who are in compliance with the rules of the FMCSR. Those same drivers who are in compliance could be given fair compensation increases for their safety awareness. Those drivers who are noncompliant can be reprimanded, treated in addiction facilities and/or terminated. The industry has a standard of care which is a called the Rule of 3. This is the 3 strike rule and you are out. This relates to giving a driver 3 chances before final termination. Strict adherence to the Rule of 3 would provide a system of increased compliance. Drivers who cannot fall in line with the ability to drive while alert and not in an intoxicated manner should be dealt with similar to the DUI laws in most states, which provide punishment ranging from jail time to suspension of a driver’s license. The truck driver who continues to operate in an intoxicated state should not be given the privilege of a CDL. A national system of computer recognition could easily flag those drivers so that other motor carriers do not hire them. A driver who then completes an adequate period of sobriety followed by a certain period of time with adequate random testing could be put back into service after that driver has established and proven that they no longer are addicted. © Bradley A. Pistotnik, 2014

References

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