The Trucking Law segment is a new monthly feature on Overdrive, in which we pose commonly asked questions from truckers and owner-operators to legal experts. In this installment, attorney Joseph Fried answers common questions about post-crash protocol.
If you are in a crash, when are you required to be drug/alcohol tested? And what are the ramifications if you refuse testing?
This is governed by 49 CFR 382. In short, if you are in a crash that involves a fatality, you must be tested. This is true whether the crash was your fault or not, whether you got a citation or not, and regardless of what the police or your carrier say about it.
If there is no fatality, you are required to be tested only if you are cited by the police for a moving violation. If you don’t submit to testing in a timely way when it’s required, you are in violation of federal law. You also may open yourself up to some evidentiary presumptions against you.
If you are in a crash, what should you do with your cell phone?
If you are in a wreck, someone is going to want to examine your phone to see if you were using it in the time leading up to the crash. When I say using it, that includes more than talking on it or texting with it. I also mean streaming audio or video or using any apps, including GPS.
It is not illegal to do certain things with a cell phone while driving, but it is illegal to be distracted while driving.
So what should you do with your phone if you’re in a wreck? Immediately talk to your safety representative and lawyer about whether you should preserve your phone. If you were not doing anything wrong with the phone, preserving it proves so.
If you don’t preserve it, the other side may suggest that you didn’t because you were up to no good. If that’s the case, you need to let your safety director or lawyer know so that they can decide how to address the situation. Whatever you do, you don’t want to get caught lying about cell phone use.
Are you required to cooperate with the motor carrier’s attorney when you’ve been in a crash?
Legally you probably are not required to cooperate, but in most circumstances you probably should. The lawyer should be looking out not only for the motor carrier’s best interest, but for yours as well.
But what if you feel that you are not being represented properly? After all, there can be internal conflicts in cases.
When that happens, you don’t want to be represented by the same lawyer who’s representing the motor carrier. Ask to have a separate lawyer assigned to you. If the carrier won’t provide one, you may want to retain a lawyer yourself.