By Brian J Riker
With some form of Cannabis or its derivative products being legal, or at least decriminalized, in all but 6 States, and with the Biden Administration announcing they plan to make history by moving Marijuana from Schedule I to Schedule III, it is time to revisit what marijuana use means for the towing industry.
First of all, it remains illegal to use for any commercial driver, including non-cdl drivers. Just because the US DOT does not require a random drug test for non-cdl drivers does not mean you can use any substances that have any trace of THC, the psychoactive substance in marijuana. 49 CFR Part 390.5 defines a commercial motor vehicle as any vehicle used in interstate commerce with a gross vehicle weight rating greater than 10,000 pounds, which includes most tow trucks and support vehicles. Further, 49 CFR 392.4 is very direct in prohibiting any illegal drug use, especially Schedule I substances, and is applicable to anyone that operates a commercial vehicle in interstate commerce.
Keep in mind that although the regulations cited above are Federal rules applicable to interstate operation of commercial vehicles, most states adopt these same Federal regulations as State law, meaning even if you do not engage in interstate commerce you are still likely subject to the same driver qualification standards.
Additionally, all CDL drivers, including owner operators and casual drivers, must submit to US DOT regulated drug and alcohol testing. This testing includes pre-employment, random, post-accident and return to duty screenings. At least 50% of an employers qualified pool of CDL drivers (or consortium members) must be randomly tested for drugs and 10% for alcohol use each year.
It is imperative to remember that under Federal rules Marijuana, and other derivatives containing more than 0.3% THC, are still classified as a Schedule I drug which makes possession and use illegal for anyone performing safety sensitive transportation functions such as driving of commercial motor vehicles. This includes CBD oils and prescription usage.
While the Biden Administration’s push to move marijuana to Schedule III will help many users avoid legal punishment, it is important to note that Schedule III drugs still require a prescription and a qualified medical professional to sign off on them not causing any impairment that would affect operation of a commercial motor vehicle. Failure to have a qualified medical professional sign off on the use of any scheduled substance will result in the revocation of your DOT medical certificate, making you medically disqualified from operating any commercial vehicle.
This will keep the over the counter items like gummies and creams off limits to truckers, and it will be unlikely that many medical examiners will sign off on the no impairment provision even though recent studies have shown that experienced users of marijuana show little to no measured impairment when operating a motor vehicle according to a joint 2022 study released by the University of Arkansas, Iowa State University and the University of Tennessee. This report does not intend to imply that use of marijuana is safe while driving, especially a large commercial truck, however it does conclude that users of marijuana tend to overcompensate and slow down or increase following distance when using, therefore making them less likely to be involved in a crash.
Speaking of over-the-counter items, please keep in mind that currently there are no Federal regulations on how they are tested, only that they must show proof of at least one batch having less than 0.03% THC, which happens to be the same level that could result in a positive DOT drug test. Ask yourself, are you willing to stake your career on the accuracy of manufacturing in an unregulated industry? Unfortunately, many drivers do, then when they return a positive test result and are forced off the road, they are shocked.
For CDL holders this is especially important given that the next phase of the FMCSA’s Drug and Alcohol Clearinghouse regulation is set to take effect in November 2024, with states being required to revoke the CDL license privileges of any driver that has not completed the return to duty process and has a positive drug or alcohol test in the Clearinghouse. This means you will lose your license if you test positive.
To recap, even though the drug testing regulations only apply to drivers required to have a CDL, that does not mean the FMCSA turns a blind eye to drug or alcohol use by drivers of non-CDL trucks. It is still a violation of Federal regulations to use illegal substances even when testing is not required. Further, should a CDL driver have a positive test result reported, they will be immediately prohibited from operating any commercial motor vehicle, including non-CDL trucks. This means that you can’t do any commercial driving at all until you have completed the return to duty process.
Bottom line, with the full implementation of the FMCSA Drug and Alcohol Testing Clearinghouse regulations, the push for hair testing in place of urine testing for CDL drivers, and the social acceptance of marijuana use in the United States, a tower needs to be more careful than ever before to keep themselves employable. Even if you have an understanding employer, or are self-employed, the insurance companies are not looking favorably upon positive drug testing results which could make you uninsurable for doing something that may not even be illegal in your state.
By Brian J. Riker
