Drivers Who Failed a Drug or Alcohol Test Can’t Escape Prohibition from Driving a CMV by Simply Moving to Vehicles Under 26,001 Pounds

Since the advent of DOT drug & alcohol testing its been trucking’s’ little secret that drivers with a CDL (or even CDL learners permit) who failed or refused to test, were able to evade compliance with the rules by forgoing a CDL and operating trucks under 26,001 pounds.

At the fall meeting of the Commercial Vehicle Safety Alliance in Dallas, TX this past September, the Driver-Traffic Committee broached the topic of commercial drivers evading compliance with the Return to Duty process after failing (or refusing) a drug or alcohol test by moving to a C license and operating trucks not requiring a CDL.

Under a newer regulation related to the establishment of the Drug & Alcohol Clearinghouse contained in the Federal Motor Carrier Safety Regulations (FMCSR’s) that loophole is closed, mostly for those operating in interstate commerce. That said, we did reach out to CHP to see if they were enforcing this new prohibition on “intrastate” CMV operators of vehicle under 26K. They are definitely enforcing during a terminal inspection but also increasing training for their officers during roadside inspections to validate whether a driver is in “prohibited status.”

That new regulation states:

§ 392.15 Prohibited driving status. No driver, who holds a commercial learner’s permit or a commercial driver’s license, shall operate a commercial motor vehicle (CMV) if prohibited by § 382.501(a) of this subchapter.

§ 382.501(a) states: (a) Except as provided in subpart F of this part, no driver shall perform safety-sensitive functions, including driving a commercial motor vehicle, if the driver has engaged in conduct prohibited by subpart B of this part or an alcohol or controlled substances rule of another DOT agency.

What trips many people up is that the FMCSR’s have two definitions defining what constitutes a “commercial motor vehicle.” For overall purposes, the feds define a CMV as any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle— (1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater. This is found in §390.5 Definitions. This means everything from many pick-ups on up being operated in commerce (even for private companies).

For the purposes of applying DOT drug and alcohol testing, a CMV is defined as:

§ 382.107 Definitions (1) Has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or (2) Has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 or more pounds), whichever is greater. This strictly limits drug & alcohol testing to all vehicle requiring a CDL with exceptions (8 passenger vehicles and ANY vehicle transporting placardable quantities of hazardous materials).

It was ironic that on the Friday right after returning from CVSA we received a call from a member who only operates straight trucks (and is not subject to DOT drug & alcohol testing) who had a driver placed (permanently) out-of-service after a roadside inspection because the driver failed a previous drug & alcohol test. The irony is the driver tried to deny ever having had a CDL, but he did have a commercial learners permit (CLP) issued at one time and guess what? Had failed a test.

Our member wanted to know “how” he could have ever discovered such a thing since all the driver had is a C license.

He was instructed to open an account with FMCSA Clearinghouse and run a query on all potential new hires. Even with someone having just a C license, if they ever had a CLP or CDL, the license number doesn’t change and it’s the license number used in a query in the Clearinghouse that can tell you whether the driver is in prohibited status – or not.