Marijuana’s Road Risks

Medical or not, truck drivers must say nope to dope

September 22, 2020 Photo

Most truck drivers are familiar with the screening processes required by the Federal Motor Carrier Safety Regulations that take place before they can be hired by a motor carrier and allowed to drive. Among the screening procedures is the requirement that a driver be examined by a Department of Transportation (DOT) medical examiner and given a medical certificate. Section 49 C.F.R. 391.41 generally prohibits driving for anyone with a missing or impaired limb that might interfere with the operation of a truck. The section also does not allow medical qualification if there is an “established medical history” of some heart conditions that could lead to fainting or difficulty breathing, epilepsy, severe high blood pressure, diabetes requiring insulin for regulation, and a wide range of other general diagnoses—including arthritic, orthopedic, and muscular diseases—if those diagnoses interfere with a driver’s ability to safely operate a big rig.

While the federal regulations cover a variety of problematic medical conditions, there is an even bigger category of medical conditions from which a truck driver could suffer and still legally operate a commercial motor vehicle.

Over-the-road (OTR) truck drivers, or the long-haul drivers who often spend weeks on the road at a time without going home, have a demanding job. The occupation makes it less likely a driver will eat nutritionally, exercise, and otherwise maintain a healthy lifestyle. In fact, in 2014, the Centers for Disease Control and Prevention warned that OTR truck drivers “face a constellation of interrelated risk factors for chronic disease” due to the lifestyle they maintain, including obesity, an increased risk of smoking, high cholesterol, and lack of adequate sleep and physical activity.

None of these conditions by themselves will prevent a truck driver from being medically qualified under the federal regulations, but they will contribute to pain, anxiety, and other symptoms that can force a truck driver to choose between his livelihood and various methods of controlling the symptoms with which the occupation is plagued, one of which is medical marijuana.

Enter Medical Marijuana

The use of medical marijuana to treat these medical conditions and others is becoming increasingly popular, illustrated by the fact that 33 states have legalized the use of medical marijuana to alleviate symptoms like nerve pain, muscle pain, nausea, and other chronic or persistent symptoms.

But what happens if a truck driver, who suffers from back pain that is severe enough to decrease his quality of life but does not interfere with his ability to safely drive a commercial motor vehicle, is legally prescribed medicinal marijuana to alleviate his pain in California but is stopped in Georgia for a delivery?

There is no good result for a truck driver in that situation. Unfortunately for both OTR and local commercial driver’s license (CDL) holders, marijuana, marijuana extract, and tetrahydrocannabinol (THC) are identified by federal law and the Federal Motor Carrier Safety Regulations as a Schedule 1 drug. Schedule 1 drugs are defined by the Drug Enforcement Agency (DEA) as having “no currently accepted medical use and a high potential for abuse,” and includes other drugs like heroin and lysergic acid diethylamide (otherwise known as LSD). As one might imagine based on this definition, the federal regulations prohibit truck drivers from being physically qualified by a medical examiner if they use any Schedule 1 drug. There is no exception when a Schedule 1 drug is legally prescribed for a recognized medical reason.

Federal Laws and Regulations

Section 49 C.F.R. 382.301 requires a clean controlled-substances test before any motor carrier can hire a driver. Further, federal regulations require a motor carrier to conduct random drug tests on 50 percent of its drivers, and test anytime the motor carrier has a reasonable suspicion that a driver might be under the influence or going through withdrawals from any controlled substance.  Finally, a commercial driver may be required to submit to a controlled substances test after a collision, depending on the injuries, damage, and whether a citation was issued.

The DOT has clarified that state-legalized medical marijuana is not a valid medical explanation for a positive drug-test result, despite the fact that the policy of the federal government in prosecuting marijuana offenses seems to be changing. The bottom line is that there is no shortage of opportunities for a driver to be drug tested, and a positive result could mean big problems for the driver.

For example, the motor carrier may have legal grounds to terminate the driver, even if the motor carrier is based in a state where medical marijuana is legal. In Maine, under the Maine Medical Use of Marijuana Act, 22 M.R.S. §§ 2421-2430-B (2012), it is illegal for an employer to discipline or terminate an employee for the lawful use of medical marijuana.

But several courts, including courts in California and the Supreme Judicial Court of Maine, have recognized that federal law trumps state law, and that one person’s “right to use medical marijuana cannot be converted into a sword that would require another party…to engage in conduct” that would violate federal law. [See Bourgoin v. Twin Rivers Paper Company LLC, 2018 ME 77 (June 14, 2018).] Federal law requires a motor carrier to remove drivers from operating a commercial motor vehicle when they receive a positive test result. Motor carriers are also required to report a failed drug test to other motor carriers considering hiring the driver.

How Medical Marijuana Can Affect Claims

Finally, the consequence most certain to affect the insurance industry is how a positive drug test, or the discovery of a trucker in possession of medical marijuana after a collision, may drive up a claim’s value. If a driver is found to have marijuana in his system after a crash and there is evidence that he was acting in an impaired manner at the scene, then the chances of that information being kept from a jury, or a punitive damages claim being tossed out on summary judgment in a personal injury lawsuit, are significantly reduced. A jury will hear about a truck driver being under the influence of marijuana despite federal law being clear that medical marijuana is prohibited, and be asked to award punitive damages.

However, if a driver is noted to have no impairment but either has marijuana in his system or has medical marijuana in his possession after a collision, a good argument exists that the evidence should be kept out because it was more prejudicial than relevant, as noted by a federal district court in Pennsylvania in Watts v. Hollock. In that case, a toxicology test found marijuana in a driver’s system, but the driver claimed he smoked marijuana the night before the collision. As there was a lack of eyewitness testimony that the driver was acting in an intoxicated or impaired manner at the scene of the accident, the court held the probative value of the evidence was substantially outweighed by its prejudicial effect.

While truck drivers are more likely to suffer from medical conditions that would be alleviated by medicinal marijuana, using it for relief could lead to headache-inducing consequences brought by federal laws and regulations.


About The Authors
Beth Bentley

Beth Bentley is an attorney in Swift Currie’s Atlanta office.

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