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Ill Fatigued Operator, Drugs and Alcohol (49 C.F.R. § 392.3 – 392.5)

Legal Commentary: These regulations are critically important to highway safety. Trucking accidents are very dangerous due to the size and weight of these vehicles. When a passenger car is involved, there is a greater likelihood that injury or death will occur.

The regulations in this section prohibit drivers from driving when their alertness is impaired through fatigue or illness, unless there is a grave emergency in which the driver must continue to drive until reaching the nearest safe place. Drivers are not permitted to possess or use many drugs and may not use alcohol four hours prior to driving. Investigating a truck crash involves determining whether the driver of the vehicle was in compliance with all regulations, including those that prohibit illness, severe fatigue, drugs or alcohol.

If a driver violated these provisions, an experienced Georgia semi-trailer injury and accident lawyer, such as Scholle Law will make sure that this information is used to seek recovery for those injured by the driver’s actions in driving under these conditions. To get help with your tractor-trailer accident, schedule a free consultation by contacting our office on line or at 770-717-5100 or toll free at 866-972-5287. We are located in the Atlanta Metro area with offices in Duluth, Perimeter, Midtown and Decatur, Georgia.

§ 392.3 Ill or Fatigued Operator

No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. However, in a case of grave emergency where the hazard to occupants of the commercial motor vehicle or other users of the highway would be increased by compliance with this section, the driver may continue to operate the commercial motor vehicle to the nearest place at which that hazard is removed.

[35 FR 7800, May 21, 1970, as amended at 60 FR 38746, July 28, 1995]

§ 392.4 Drugs and Other Substances

(a) No driver shall be on duty and possess, be under the influence of, or use, any of the following drugs or other substances:

  1. Any 21 CFR 1308.11 Schedule I substance;
  2. An amphetamine or any formulation thereof (including, but not limited, to “pep pills,” and “bennies”);
  3. A narcotic drug or any derivative thereof; or
  4. Any other substance, to a degree which renders the driver incapable of safely operating a motor vehicle.

(b) No motor carrier shall require or permit a driver to violate paragraph (a) of this section.

(c) Paragraphs (a) (2), (3), and (4) do not apply to the possession or use of a substance administered to a driver by or under the instructions of a licensed medical practitioner, as defined in §382.107 of this subchapter, who has advised the driver that the substance will not affect the driver's ability to safely operate a motor vehicle.

(d) As used in this section, “possession” does not include possession of a substance which is manifested and transported as part of a shipment.

[61 FR 9567, Mar. 8, 1996, as amended at 62 FR 37153, July 11, 1997]

§ 392.5 Alcohol Prohibition

(a) No driver shall—

  1. Use alcohol, as defined in §382.107 of this subchapter, or be under the influence of alcohol, within 4 hours before going on duty or operating, or having physical control of, a commercial motor vehicle; or
  2. Use alcohol, be under the influence of alcohol, or have any measured alcohol concentration or detected presence of alcohol, while on duty, or operating, or in physical control of a commercial motor vehicle; or
  3. Be on duty or operate a commercial motor vehicle while the driver possesses wine of not less than one-half of one per centum of alcohol by volume, beer as defined in 26 U.S.C. 5052(a), of the Internal Revenue Code of 1954, and distilled spirits as defined in section 5002(a)(8), of such Code. However, this does not apply to possession of wine, beer, or distilled spirits which are:
    1. Manifested and transported as part of a shipment; or
    2. Possessed or used by bus passengers.

(b) No motor carrier shall require or permit a driver to—

  1. Violate any provision of paragraph (a) of this section; or
  2. Be on duty or operate a commercial motor vehicle if, by the driver's general appearance or conduct or by other substantiating evidence, the driver appears to have used alcohol within the preceding four hours.

(c) Any driver who is found to be in violation of the provisions of paragraph (a) or (b) of this section shall be placed out-of-service immediately for a period of 24 hours.

  1. The 24-hour out-of-service period will commence upon issuance of an out-of-service order.
  2. No driver shall violate the terms of an out-of-service order issued under this section.

(d) Any driver who is issued an out-of-service order under this section shall:

  1. Report such issuance to his/her employer within 24 hours; and
  2. Report such issuance to a State official, designated by the State which issued his/her driver's license, within 30 days unless the driver chooses to request a review of the order. In this case, the driver shall report the order to the State official within 30 days of an affirmation of the order by either the Division Administrator or State Director for the geographical area or the Administrator.

(e) Any driver who is subject to an out-of-service order under this section may petition for review of that order by submitting a petition for review in writing within 10 days of the issuance of the order to the Division Administrator or State Director for the geographical area in which the order was issued. The Division Administrator or State Director may affirm or reverse the order. Any driver adversely affected by such order of the Regional Director of Motor Carriers may petition the Administrator for review in accordance with 49 CFR 386.13.

(49 U.S.C. 304, 1655; 49 CFR 1.48(b) and 301.60)[47 FR 47837, Oct. 28, 1982, as amended at 52 FR 27201, July 20, 1987; 59 FR 7515, Feb. 15, 1994; 61 FR 9567, Mar. 8, 1996]

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