Overdrive Magazine

Overdrive February 2019

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64 | Overdrive | February 2019 Q Is drug or alcohol testing required after a crash? What happens if you refuse testing? A 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 test- ed 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 fed- eral law. You also may open yourself up to some evidentiary presumptions against you. Q What should you do with your cell phone after a crash? A 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 talk- ing 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 repre- sentative and lawyer about whether you should pre- serve 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 sug- gest 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. Q Are you required to cooperate with the carrier's attorney? A 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 also for yours. But what if you feel that you are not being rep- resented properly? After all, there can be internal conflicts in cases. When that happens, you don't want to be rep- resented 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. After an accident, talk with your fleet's safety personnel about whether cell phone distraction might be a factor in handling your case. Joseph A. Fried, based in Atlanta, is an attorney who specializes in trucking cases. He can be reached at 404-591-1818 or joe@frg-law.com. TRUCKING LAW Things to consider after an accident

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