Actual Knowledge as defined by 49 CFR §382.107
Actual knowledge for the purpose of subpart B of this part, means actual knowledge by an employer that a driver has used alcohol or controlled substances based on the employer’s direct observation of the employee, information provided by the driver’s previous employer(s), a traffic citation for driving a CMV while under the influence of alcohol or controlled substances or an employee’s admission of alcohol or controlled substance use, except as provided in § 382.121. Direct observation as used in this definition means observation of alcohol or controlled substances use and does not include observation of employee behavior or physical characteristics sufficient to warrant reasonable suspicion testing under § 382.307.. As used in this section, “traffic citation” means a ticket, complaint, or other document charging driving a CMV while under the influence of alcohol or controlled substances.
This article will cover the following:
When should a motor carrier employer report an Actual Knowledge violation?
- Employer’s direct observation of drug or alcohol use.
- The employer has seen the driver using drugs or alcohol while on duty
- The employer has seen the driver using alcohol within 4 hours of going on duty
- The employer has seen the driver using drugs at any time, this includes off duty time
- Information from a previous employer.
- A previous employer provides information of actual knowledge that has not previously been reported.
- DUI citation or charge
- The driver receives a citation or is charged with a DUI while driving a Commercial Motor Vehicle.
- A conviction is not required to report a citation or charge as Actual Knowledge
- Driver Admission
- The driver admits to using drugs or the driver admits to using alcohol while on duty or within 4 hours of going on duty.
- Except when the company has a detailed, written, self-admission policy. A self-admission exception cannot be used to avoid a test and the driver must make the admission prior to reporting for duty.
What are the consequences of an Actual Knowledge Violation?
- The driver must immediately be removed from their safety-sensitive position.
- The Actual Knowledge violation must be reported to the FMCSA Clearinghouse within 3 business days. The violation will also need to be reported to any prospective employers requesting information through the 3-year previous employer check.
- The driver must complete the Return to Duty (RTD) Process before returning to a safety-sensitive position.
- The driver’s CDL may be downgraded if attempting to renew or upgrade their CDL before completing the RTD Process
What information is needed to report an Actual Knowledge violation?
- The driver’s name, date of birth, CDL Number and State of issue.
- The type of Actual Knowledge; employer direct observation, information provided by a previous employer, traffic citation or driver admission.
- The date the employer obtained knowledge of the violation.
- The date of the violation.
- A detailed description of the violation.
- The name and contact information of any witnesses to the violation.
- Evidence supporting each fact alleged in the violation description such as affidavits, photos, videos or audio recording, employee statements, law enforcement citations and other documentation.
- A certificate of service or other evidence showing that the employer provided the employee with all information reported under paragraph (b)(4) of this section (if applicable).
Can a positive result on non-DOT test be reported as Actual Knowledge?
No, an employer cannot use a positive non-DOT test as Actual Knowledge reportable to the FMCA Clearinghouse.
If you have any questions regarding Actual Knowledge or the FMCSA Clearinghouse please visit Clearinghouse Services or give us a call at 877-345-2425.
