The Driver Was Never Tested. That Fact Has a Paper Trail.

When a semi sends someone to the hospital, most people assume someone checked whether the truck driver had been drinking or using drugs. Sometimes the police do. But a second, separate testing system has nothing to do with arrests, and it is the one I care about in an injury case.

Federal trucking rules put the burden on the motor carrier, the company that employs the driver, to test its own driver after certain crashes. The rules also tell the company what it has to write down if the test doesn't happen on time. That writing, or the absence of it, becomes evidence in the injured person's civil claim against the driver and the company.

When federal law requires a test after a crash

The rule is 49 CFR 382.303. Not every fender-bender with a semi triggers it. It applies when a commercial motor vehicle is involved in an occurrence on a public road and one of these is true:

• Someone died. A fatal crash requires testing of each surviving driver, whether or not anyone was ticketed.
• Someone was hurt, and the truck driver was cited. The injured person had to receive immediate medical treatment away from the scene, and the truck driver received a moving traffic citation for the crash.
• A vehicle was disabled, and the truck driver was cited. Any vehicle involved had disabling damage that required it to be towed away, and again the truck driver got a citation.

For the citation-based triggers, timing matters: the ticket has to come within 8 hours for the alcohol test and within 32 hours for the drug test. The company is supposed to test "as soon as practicable."

Then come the deadlines that matter most in litigation. If the alcohol test hasn't been given within 2 hours, the employer must prepare and keep a record stating why it wasn't done promptly. At 8 hours, the company has to stop trying and document the reasons. The drug test has a 32-hour outer limit, with the same duty to stop and put the reasons on file.

The driver must stay readily available, or the company can treat him as having refused. A police breath, blood, or urine test can count if it meets the requirements and the company obtains the results.

Testing doesn't start with the crash

Post-accident testing is one piece of a larger program the carrier is required to run. Each piece produces its own records:

• Before hiring. Under 49 CFR 382.301, a driver can't perform safety-sensitive work for a new employer until the company has a verified negative drug test result in hand. A pre-employment alcohol test is optional for the employer.
• Random tests. Section 382.305 requires random alcohol and drug testing. Tests must be unannounced, spread reasonably throughout the year, and every driver in the pool must have an equal chance of being picked.
• Reasonable suspicion. Under section 382.307, a trained supervisor who observes signs of use, based on "specific, contemporaneous, articulable observations" of the driver's appearance, behavior, speech or body odor, must send the driver for testing. The supervisor has to put those observations in a signed written record within 24 hours.
• The Clearinghouse. Section 382.701 requires a carrier to query the federal Drug and Alcohol Clearinghouse before putting a new driver to work and at least once a year after that. If a query shows a verified positive drug test, an alcohol result of 0.04 or higher, or a refusal, the company can't let the driver do safety-sensitive work unless he has completed the return-to-duty process.

That last item ties directly into the hiring case. I won't repeat it here, because my post on the driver qualification file and negligent hiring covers what a carrier must check before putting someone in the cab, and my driver qualification and hours-of-service page explains how Clearinghouse queries fit the claim that a company hired or kept a driver it shouldn't have.

The other side of the rule: what the driver can't do

The testing rules sit next to the rules on what a driver may not do. Under 49 CFR 392.5, a driver may not use alcohol within 4 hours before going on duty, and may not have any measured alcohol concentration or detected presence of alcohol while on duty. The carrier itself may not require or permit a violation.

For drugs, 49 CFR 392.4 bars a driver from being on duty while possessing, using, or under the influence of Schedule I substances, amphetamines, or narcotics. It also covers "any other substance" used to a degree that makes the driver unable to drive safely.

That catch-all is where prescription and over-the-counter medication comes in. There is an exception for a substance given by or under the instructions of a licensed medical practitioner who has advised the driver it won't affect safe driving. But the exception depends on that advice actually having been given. A driver who took a leftover muscle relaxant, a sleep aid, or a heavy dose of an antihistamine on his own doesn't get the benefit of it.

Fatigue and impairment are often the same story

Long-haul driving and drug use connect in a way that matters to an injury claim. A driver who is running past his hours may reach for something to stay awake. A driver who can't sleep in a truck stop lot may take something to knock himself out, then go on duty while it's still in his system. So when the logs suggest fatigue, I want the testing file, and when the testing file has a problem, I want the logs. My post on driver fatigue and hours of service explains how those logs expose a tired driver.

What I ask for, and how the records come out

Drug and alcohol testing records aren't public. Under 49 CFR 382.405, the employer generally can't release them without the driver's written consent unless the regulations authorize it. That doesn't put them out of reach in an injury case. The cross-referenced rule, 49 CFR 40.323, allows release in a civil action arising from the driver's safety-sensitive duties when a court determines the test information is relevant and orders the employer to produce it. The regulation itself uses post-accident testing in truck and bus injury litigation as an example. The release goes to the decisionmaker with a binding stipulation limiting access to the parties.

In practice, the requests I make in a truck case include:

• post-accident results, plus the collection paperwork showing when and where each specimen was taken
• any written explanation for a late or skipped test
• police breath or blood results the company obtained
• the pre-employment result, Clearinghouse queries, and random testing history
• reasonable-suspicion records and the company's written testing policy

Retention clocks

The regulations set minimum keep-periods under 49 CFR 382.401, and they aren't long. Negative drug results and alcohol results under 0.02 need only be kept one year. Records of the collection process: two years. Positive drug results, alcohol results of 0.02 or more, and refusals: five years. And if a record is required to be made at all, such as the written explanation for a late test, it has to be kept.

Cases take time, and a company with no reason to hold a file may let it go. That's why my evidence preservation page lists the testing file among the categories a preservation letter should name, and why I send that letter quickly. Remember too that the company's own team is often on scene early, as I describe in my post on trucking rapid response teams. They know about these deadlines. Families usually don't.

How a missing or late test gets used

A positive test is straightforward evidence. The harder and more interesting question is what to do when there is no result at all.

A missing test doesn't prove the driver was impaired. It shifts attention to the company. Was a test required? Why wasn't it done? Does the written explanation hold up against the timeline, and who made the call? A careful company will have answers. A company that treated testing as an afterthought often won't, and that says something about how it ran everything else, including hiring, supervision, and dispatch.

Hypothetical one: the citation that came later

This is a made-up example, not a real case. A semi rear-ends a pickup on I-80 west of Omaha. The pickup driver is taken by ambulance to a hospital. At the scene, the trooper doesn't write a ticket, and the carrier's safety manager decides no test is needed. The next morning, after reviewing dash video, the trooper cites the truck driver for following too closely, about 20 hours after the crash.

The alcohol window has closed, but the citation came inside 32 hours, so a drug test was now owed. If the carrier never revisited its decision, the missing written record becomes a focus of discovery.

Hypothetical two: the test that took six hours

Also made up. A tractor-trailer crosses the center line on a two-lane highway and kills the driver of an oncoming car. Testing is required because of the fatality. The driver isn't breath-tested until almost six hours later. The result is 0.00, and the file contains no written reason for the delay past two hours.

The company will say the zero ends the discussion. The answer is that a zero six hours later says less than a zero taken right away, and the company didn't write down why it waited, as the rule requires. Combined with other evidence, like a receipt, a witness, or a log gap, that gap can matter. In a fatal case like this, the family's claim may be a wrongful death claim, and the testing file is one of the first things I want preserved.

What the defense will argue

• "The test was negative." Then it was negative for what was tested, at the time it was taken. A standard panel doesn't screen for every sedating medication, and an alcohol test hours later reflects hours of elimination.
• "No test was required." Maybe. That depends on the facts of the crash, whether anyone was treated away from the scene, whether a vehicle was towed, and when a citation was issued. Those facts get checked, not assumed.
• "The crash wasn't the driver's fault." Testing doesn't decide fault. I still have to prove what the driver did wrong on the road. Testing records support that case; they don't replace it.
• "The testing records are confidential." Protected, yes. Untouchable, no, as explained above.

One mistake I see families make: assuming that because nobody was arrested, there's no impairment evidence. The civil claim doesn't depend on a criminal charge, and whether and when a ticket was written can decide whether the company owed a test at all.

Why families call me after a truck crash

Trucking companies have safety departments and defense lawyers working from the first hour. I'm a zealous, trial-tested lawyer who knows these federal rules and how to turn a carrier's own paperwork into evidence. My clients have recovered more than $23 million, including a $5.4 million result, and they've left many five-star reviews describing how hard I fought for them. Omaha readers named my firm Best of Omaha in the Personal Injury Law Firm category for both 2025 and 2026.

If a semi crash in Nebraska or Iowa injured you or took someone you love, talk with a Nebraska truck accident lawyer while the testing records still exist. Call (402) 378-9208, or send me a note here. There's no charge to talk it through, and you won't owe a fee unless I win your case.

Frequently asked questions

What happens if the trucking company doesn't test the driver in time after a crash?

If the alcohol test hasn't been given within 2 hours, the employer must prepare and keep a record stating why it wasn't done promptly. At 8 hours, the company has to stop trying and document the reasons. The drug test has a 32-hour outer limit, with the same duty to stop and put the reasons on file.

Can I get the truck driver's drug and alcohol testing records?

Drug and alcohol testing records aren't public. Under 49 CFR 382.405, the employer generally can't release them without the driver's written consent unless the regulations authorize it. That doesn't put them out of reach in an injury case.

Does a missing drug test prove the truck driver was impaired?

A missing test doesn't prove the driver was impaired. It shifts attention to the company. Was a test required? Why wasn't it done? Does the written explanation hold up against the timeline, and who made the call?

Your Attorney

Frank Younes

Every page on this site is written by Frank Younes, a Nebraska trial attorney with a published record of verdicts and settlements, selection to the National Trial Lawyers Top 100, and a practice that covers every county in Nebraska and Iowa. No case is handed to an associate — the lawyer you read here is the lawyer who works your case.

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