Why Not to Do Non-DOT Post-Accident D&A Test

Big Idea
Non-Department of Transportation post-accident drug and alcohol testing potentially changes a non-liable accident into the detonator of a nuclear verdict.

Why It Matters
Why do you do non-DOT post-accident D&A testing? Aside from company “drug-free” programs, the response is always, “How else can we prove our driver was not under the influence?”

This is the logic that was applied by a fringe candidate for governor who had been previously hospitalized for mental issues. “I now have a certification of my sanity. No other candidate can say that.”

You don’t need to certify your driver’s sobriety from drugs and alcohol. Post-accident sobriety, as with political sanity, is presumed subject to disproof by the opposition. They must prove it’s not so.

They have a tough task to disprove sobriety. The issue of intoxication is closely guarded by the courts. This is because of the prejudicial impact of even a suggestion of intoxication. Courts are careful gatekeepers of any such evidence.

They cannot make allegations at trial unless there is substantial evidence of intoxication - scientific or physical. But more than a mere suggestion. Substantial proof.

And they have the burden of proof. It’s not up to you to prove the negative any more than a politician must prove their sanity (insert joke here).

Your Response
To the extent proof is needed, you have the best evidence available – the investigating officer. Trained to detect indications of intoxication, any probable cause will be noted. It is their duty to do so.

My first mentor attorney told me that in a trial, the party that brings in the police officer has the advantage. The jury will be impressed and influenced by your having called them.

They want to claim intoxication. They can argue with the officer.

So Why Not Test?
Today’s volatile legal environment makes it too risky to take the chance. The possibility of a positive, unrelated to accident causation or driving ability, is too great.

Just Google “legalized marijuana” and look at the map. The presence and availability are virtually nationwide. It’s everywhere.

The presence is compounded by ignorance and misunderstanding. Just look at ATRI’s study of the impact of legalized marijuana on trucking. They surveyed driver knowledge of whether they could use it if it was legal in their state.

Result? Six percent thought they could while 19% were unsure. That’s a quarter of the truckers either thought they could partake or didn’t know.

And the odds of a positive? Look at the data from the D&A Clearinghouse. Since legal marijuana started in 2020, there have been almost 300,000 positive drug tests (176,000 marijuana). Of the drivers with positives, 180,995 are still in prohibited status with 102,354 non-prohibited.

Another potential positive comes from ignorant and innocent use of CBD oil. “But I bought it at a convenience store…”

Problem is it’s unregulated. No warning or control of the THC in the oil. And per a doctor, there is no benefit to CBD oil absent THC.

Then there is the advent of more THC laden products. In a recent trip to California, I saw a section of a liquor store dedicated to THC-infused beer.

Another reason to not do D&A testing – what are you going to do with a positive? Since it's not a DOT required test you won't submit it to the Clearinghouse. Potentially (probably) discoverable as not subject to DOT drug testing confidentiality.

And if you fire the driver, are you going to report it in their next employer’s inquiry? Can you? Non-DOT?

Add to that state and local laws and regulations. Many states and even cities have restrictions on testing, such as only for reasonable suspicion, that are applicable for non-federally mandated tests.

The Bottom Line

Post-accident non-DOT drug testing. Not required. High risk.