U.S. DOT didn’t relax ‘zero tolerance’ policy for truckers after Washington’s ‘Recreational Marijuana’ law. Will DOT react differently to Colorado’s marijuana law or the pot laws coming to a state near you?
President Obama was all over the media Monday, with his stance that marijuana is no “more dangerous than alcohol”, and that it’s “important” to allow recent legalization efforts in Colorado and Washington State to proceed.
The legal issue is an interesting one, especially when it comes to truck drivers who drive cross country: Is a trucker still breaking the law if he uses legalized marijuana in a state that has legalized the drug?
There’s very little legal guidance so far, so I did a little research. And here is what I found: When it comes to truckers ingesting marijuana, “Just say No” has been the U.S. Department of Transportation’s message to the nation’s truckers.
And that message will likely remain the same in the future – despite new laws, such as Colorado’s legalizing the sale of “recreational marijuana.”
For example, in December 2012, approximately one month after voters approved Initiative 502 to legalize “recreational marijuana” in the State of Washington, the U.S. Department of Transportation’s Office of Drug and Alcohol Policy and Compliance announced that truckers were prohibited from using “recreational marijuana”:
“We want to make it perfectly clear that the state initiatives will have no bearing on the DOT’s regulated drug testing program. The DOT’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.”
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“It remains unacceptable for any safety-sensitive employee [such as a truck driver] subject to drug testing under the DOT’s drug testing regulations to use marijuana.”
It’s true that the DOT has not yet addressed Colorado’ “recreational marijuana” law. But, assuming that when it does it sticks to its 2012 position, I can see lawyers asking the question:
How is it illegal to use legal marijuana?
I think the truck lawyers hired by the insurance company that insures the trucking company if a driver with marijuana in his system has just caused a terrible truck accident would be especially interested in this question.
Colorado’s ‘Recreational Marijuana’ Law
“Colorado began allowing the sale of recreational marijuana (approximately one ounce) on January 1  to anyone age 21 or older. … [Thus,] Colorado became the first state in the nation to open recreational pot stores and became the first place in the world where marijuana will be regulated from seed to sale,” according to an article on CNN, “10 things to know about the nation’s first recreational marijuana shops in Colorado.”
DOT’s position on truckers’ use of recreational marijuana
As discussed above, in December 2012, the U.S. Department of Transportation’s Office of Drug and Alcohol Policy and Compliance declared that recently enacted state “initiatives to permit use of marijuana for so-called ‘recreational’ purposes,’” such as Washington’s Initiative 502, would not change:
“[T]he DOT’s longstanding regulation about the use of marijuana by safety-sensitive transportation employees … [such as] truck drivers …”
Accordingly, the DOT prohibited “Medical Review Officers” or MROs from:
“[V]erify[ing] [an otherwise positive] drug test as negative based upon learning that the employee used ‘recreational marijuana’ when states have passed ‘recreational marijuana’ initiatives.”
Violation of the DOT’s marijuana prohibition is serious business for truckers, because it means they’re no longer authorized to drive and their employer must take them “out of service”:
“[A]n employer who receives a verified positive drug test result … must immediately remove the employee involved from performing safety-sensitive functions [which includes driving a truck].” (See 49 CFR Part 40 Section 40.23(a))
Marijuana issues not new to DOT
The year of 2012 was not the first time the Department of Transportation had to deal with the issue of marijuana use by truckers and other “safety-sensitive transportation employees.”
In 2009, the DOT’s Office of Drug and Alcohol Policy and Compliance issued a bulletin entitled “DOT Position on Medical Marijuana,” wherein the DOT announced that recently enacted state laws allowing the use of “medical marijuana” would not change the DOT’s “longstanding regulation about the use of marijuana by safety-sensitive transportation employees … [such as] truck drivers …”
In other words, the use of “‘medical marijuana’ under a state law” would not be considered a “valid medical explanation for a transportation employee’s positive drug test result.”
And, for good measure, just as it would do approximately three years later, the DOT warned:
“It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”