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How a truck driver’s post-accident drug test can be admissible in trial

Written by Steve Gursten Posted August 27th, 2014

Tips on rebutting the defense arguments of unfair prejudice and causation

hair drug test for truckers

First, let’s be clear. Truck drivers who are using  drugs and alcohol are a serious safety crisis. Just look at the numbers:

Drug use is a factor in an estimated 65,000 truck accidents a year, according to Trucking 101, Transportation Research Board of the National Academies, December 2010.

And this is likely only the tip of the iceberg, as many truck drivers who use illegal drugs flee after they cause a serious truck accident.  I was interviewed by Fox 2 News Chicago on this issue. In fact, I’ve had cases where the truck drivers are told by the company safety director to get the hell away and stay off the grid for a couple days because the trucking company would rather pay a small fine than face a significant punitive damages verdict for knowingly allowing (or knowingly disregarding) a driver who is amped up on drugs. The problem is exacerbated because the CVSA Roadcheck inspections dates are announced months in advance, so most trucking companies will keep their really bad truck drivers who they strongly suspect have substance abuse problems off the roads during the inspection days.

But what if your state doesn’t have punitive damages, and the defense is strongly contesting this issue on causation and unfair prejudice? There is a way for plaintiff attorneys to keep a defense attorney from sweeping drug use under the rug. You can admit a truck driver’s positive post-accident drug test — even in anticipation the defense will argue for exclusion under Rule 403 (probative value outweighed by unfair prejudice) and that the mere presence of the drug is not related to the proximate cause (causation)).

How long do drugs remain in the system?

Below is a list of drugs and the approximate amount of time they can be detected via a urine test:

Alcohol:

  • 7 to 12 hours detection time

Amphetamine:

  • 48 hours detection time

 

Methamphetamine:

  • •    48 hours detection time

Barbiturates:

  • Short-acting, 24 hours detection time
  • Long-acting, 3 weeks detection time

Benzodiazepine:

  • Short-acting, 3 days detection time
  • Long-acting, 30 days detection time

Cocaine metabolites:

  • 2 to 4 days detection time

Marijuana:

  • Single use, 3 days detection time
  • Moderate use (4x/week), 5 to 7 days detection time
  • Daily use, 10 to 15 days detection time
  • Long-term heavy smoker, >30 days detection time

Opiates:

  • Codeine, 48 hours detection time
  • Heroin (morphine), 2 to 4 days detection time
  • Hydromorphone, 2 to 4 days detection time
  • Methadone, 3 days detection time
  • Morphine, 48 to 72 hours detection time
  • Oxycodone, 2 to 4 days detection time
  • Propoxyphene, 6 to 48 hours detection time
  • Phencyclidine, 8 days detection time

– Source: University of Illinois at Chicago College of Pharmacy: What drugs are likely to interfere with urine drug screens?

Let’s use methamphetamine in an example truck accident case

Meth is still detectable in urine and saliva between one and four days, and in the blood between one and three days. If a test is performed close in time after the crash, it could explain why the truck driver crashed. The effect of the drug depends on how long it was before the truck accident when the trucker took it, and of course how much of the drug was used.

Regardless, it would have a negative effect on the driver, including decision-making and perception and reaction time to see and avoid causing an accident no matter what “stage” he was in at time of the wreck. It doesn’t matter if  he’s a long-term user or a “new” user.  It is relevant. And if it is relevant to how the crash too place, it is admissible.

Even if the defense lawyer argues the meth use was not close in time to the crash, a meth user is affected by a need for the drug, meaning he’s unable to think clearly because he’s preoccupied with where and when he will get the next fix, that his body is aching for the high, etc. See this article about the meth experience, from the Foundation for a Drug Free World.

The point is that if the plaintiff attorney has plead negligent entrustment, training, supervision, etc., it has an independent basis for admission into evidence separate and apart from causation. While the defense can admit negligence, it is hard to imagine that they will admit gross negligence. Or that a defense attorney will admit that a monitoring and supervision and testing program allowed a meth user to drive one of their commercial motor vehicles without being detected.

Other cases that involve admission of drug test evidence

Several fact-driven cases from across the country involve admitting evidence of drug use in truck wrecks. But keep in mind, many courts concluded the evidence was admissible when used to prove – by expert testimony  – that the drug use affected the ability to operate a vehicle.

Many judges also required that the trucker knew or should have known that use of such drug could result in injury to others. Some criminal cases have admitted evidence to prove malice aforethought. So, with proper expert testimony, drug testing is admissible for several additional reasons as well.

Even if the judge makes the wrong call and does not allow admission of drug use if the defendant admits liability in a truck crash, the introduction of drug use during the damages phase of trial is still  proper. It can go to emotional damages as part of the harms the plaintiff has suffered.

And for states that allow for punitive damages, it would likely come in under the punitive damages phase, especially if you can get your expert to testify that based upon the long- or short-term use of the drug that the company – if adequately monitoring and training its drivers – should have been aware the driver was using illegal drugs. These drugs put everyone at risk. All of our families.

Plaintiff’s attorneys should also most definitely review the trucker’s medical records. For example, looking for documented weight loss, Facebook pages, and anything that would have given his employing motor carrier the knowledge of his possible illegal drug use. If you’re not familiar with the effects of meth use, for instance, a good expert can guide you in what to look for and what you should be requesting in legal discovery from the defendant.

Related information:

Safety groups, attorneys call for expansion of drug and alcohol clearinghouse for truckers

Steven Gursten Photo

About Steve Gursten

Attorney Steven Gursten is president of the Motor Vehicle Trial Lawyers Association and past president of the American Association for Justice Trucking Litigation Group. He has been named a Michigan Lawyers Weekly "Leader in the Law" for his efforts to prevent truck accidents and promote national truck safety. Steve was also a Michigan Lawyers Weekly "Lawyer of the Year" for a record settlement in a truck accident case. He has received the top reported truck accident jury verdict and top reported truck accident settlement in Michigan for multiple years, according to published year-end compilations of all jury verdicts and personal injury settlements by Michigan Lawyers Weekly. He has been named a "Top 50 Super Lawyer," by SuperLawyers, is listed in Best Lawyers in America, and has been awarded an AV-rating by Martindale-Hubbell, which is the highest rating for legal ability and ethics. Steve speaks to lawyers throughout the country on truck accident litigation. He is a founding member of the Truck Accident Attorneys Roundtable, head of Michigan Auto Law, and has dedicated his legal career to making our roads safer.
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