May 29 - June 04, 2024
Just Say No - Marijuana and the Tower
Published: Wednesday, May 22, 2024
By Brian J Riker
With some form of Cannabis or its derivative products being legal, or at least decriminalized, in all but 6 States, and with the Biden Administration announcing they plan to make history by moving Marijuana from Schedule I to Schedule III, it is time to revisit what marijuana use means for the towing industry.
First of all, it remains illegal to use for any commercial driver, including non-cdl drivers. Just because the US DOT does not require a random drug test for non-cdl drivers does not mean you can use any substances that have any trace of THC, the psychoactive substance in marijuana. 49 CFR Part 390.5 defines a commercial motor vehicle as any vehicle used in interstate commerce with a gross vehicle weight rating greater than 10,000 pounds, which includes most tow trucks and support vehicles. Further, 49 CFR 392.4 is very direct in prohibiting any illegal drug use, especially Schedule I substances, and is applicable to anyone that operates a commercial vehicle in interstate commerce.
Keep in mind that although the regulations cited above are Federal rules applicable to interstate operation of commercial vehicles, most states adopt these same Federal regulations as State law, meaning even if you do not engage in interstate commerce you are still likely subject to the same driver qualification standards.
Additionally, all CDL drivers, including owner operators and casual drivers, must submit to US DOT regulated drug and alcohol testing. This testing includes pre-employment, random, post-accident and return to duty screenings. At least 50% of an employers qualified pool of CDL drivers (or consortium members) must be randomly tested for drugs and 10% for alcohol use each year.
It is imperative to remember that under Federal rules Marijuana, and other derivatives containing more than 0.3% THC, are still classified as a Schedule I drug which makes possession and use illegal for anyone performing safety sensitive transportation functions such as driving of commercial motor vehicles. This includes CBD oils and prescription usage.
While the Biden Administration’s push to move marijuana to Schedule III will help many users avoid legal punishment, it is important to note that Schedule III drugs still require a prescription and a qualified medical professional to sign off on them not causing any impairment that would affect operation of a commercial motor vehicle. Failure to have a qualified medical professional sign off on the use of any scheduled substance will result in the revocation of your DOT medical certificate, making you medically disqualified from operating any commercial vehicle.
This will keep the over the counter items like gummies and creams off limits to truckers, and it will be unlikely that many medical examiners will sign off on the no impairment provision even though recent studies have shown that experienced users of marijuana show little to no measured impairment when operating a motor vehicle according to a joint 2022 study released by the University of Arkansas, Iowa State University and the University of Tennessee. This report does not intend to imply that use of marijuana is safe while driving, especially a large commercial truck, however it does conclude that users of marijuana tend to overcompensate and slow down or increase following distance when using, therefore making them less likely to be involved in a crash.
Speaking of over-the-counter items, please keep in mind that currently there are no Federal regulations on how they are tested, only that they must show proof of at least one batch having less than 0.03% THC, which happens to be the same level that could result in a positive DOT drug test. Ask yourself, are you willing to stake your career on the accuracy of manufacturing in an unregulated industry? Unfortunately, many drivers do, then when they return a positive test result and are forced off the road, they are shocked.
For CDL holders this is especially important given that the next phase of the FMCSA’s Drug and Alcohol Clearinghouse regulation is set to take effect in November 2024, with states being required to revoke the CDL license privileges of any driver that has not completed the return to duty process and has a positive drug or alcohol test in the Clearinghouse. This means you will lose your license if you test positive.
To recap, even though the drug testing regulations only apply to drivers required to have a CDL, that does not mean the FMCSA turns a blind eye to drug or alcohol use by drivers of non-CDL trucks. It is still a violation of Federal regulations to use illegal substances even when testing is not required. Further, should a CDL driver have a positive test result reported, they will be immediately prohibited from operating any commercial motor vehicle, including non-CDL trucks. This means that you can’t do any commercial driving at all until you have completed the return to duty process.
Bottom line, with the full implementation of the FMCSA Drug and Alcohol Testing Clearinghouse regulations, the push for hair testing in place of urine testing for CDL drivers, and the social acceptance of marijuana use in the United States, a tower needs to be more careful than ever before to keep themselves employable. Even if you have an understanding employer, or are self-employed, the insurance companies are not looking favorably upon positive drug testing results which could make you uninsurable for doing something that may not even be illegal in your state.
Stranded and Left to Die?
Published: Thursday, May 16, 2024
By Randall C. Resch
Through tears and sobs, Terry Sandage, father of 29-year-old Debbie Miranda, a resident of Jefferson, New Jersey, made a gut-wrenching plea to the New Jersey’s Garden State Towing Association. His hope was to change the manner business is conducted when motorists are stranded on the highway and have no money to pay for roadside services.
In 1994, Miss Miranda experienced a flat tire driving on a Jersey highway. Because she couldn’t pay $40 for services, the tow operator allegedly left her stranded. Soon after, a good Samaritan stopped to help change the tire; however, Miss Miranda was struck and killed by a passing motorist. And, as it would happen, the tow industry would befall bad press made in a prime-time, emotionally charged statement where Mr. Sandage stated, “Because my daughter didn’t have $40, she was left to die.”
In a similar west-coast scenario, a husband and wife were broken down on a San Diego highway late at night and awaited a tow truck to take their disabled car off the highway. When the tow truck arrived, the couple advised they had no means to pay for the tow. The tower simply departed leaving the vehicle and the couple stranded. They remained with their vehicle hoping the highway patrol would happen by; however, in o-dark-thirty hours, a DUI driver plowed into their vehicle killing them both.
What’s the Solution?
These are horrific events that reflect the dangers and complications of not providing towing or on-scene services. I realize that “towers don’t work for free,” yet there has to be an obvious concern in leaving someone stranded. Especially true to the high costs of towing in today’s market, it’s a tough nut to swallow not getting paid. So, what can or what should towers do to provide an empathetic solution to simply leaving motorists stranded?
Towers are oftentimes the brunt and blame of wrongful injury and fatality scenarios. The plaintiff’s attorney will likely argue that a “Special Relationship” was created. Once the tow truck arrives on-scene, it may be asked, “Did the actions of the tow operator cause the motorist to be injured?”
Because “special relationships” are extremely difficult to define and defend, I’ll make no attempt to practice law, but bring focus to what towers are up against should they leave a stranded motorist to fend for themselves.
Drivers are certain to get caught in “that moral crossfire” of choosing to leave or provide a free tow when they’re not collecting monies for providing services. In the case of Miss Miranda being killed, the question was raised whether “money was the issue” and not that of protecting someone’s life. Here are seven potential solutions when the inability to pay is immediate:
-- Drivers contact dispatch and have a manager or supervisor determine what to do
-- Contact the highway patrol and remain on-scene until they arrive
-- Offer a free “Safety Tow” off the highway, or conduct the service for free
-- During prime-time hours, request a freeway service patrol or other motorist assist program to respond
-- Why not offer first, situate them into the tow truck with their seatbelt’s on, load the vehicle, then deliver it to a repair shop or service center
-- Ask the shop’s service manager to pay the tow and put it on the motorist’s repair bill, or
-- Take them to an ATM where there’s access to money
While not getting paid is the “operational description” of this narrative, it makes sense to provide a free, “Safety Tow” perhaps to save the lives of stranded motorists. Providing a free Safety Tow (or provide service) certainly promotes “good will” versus having to defend a multi-million-dollar, wrongful death lawsuit, or being named as an “uncaring tow company” during prime-time news.
Offering free service or Safety Tow off the highway is a compassionate thing to do. What if it were your family member who didn’t have funds for service? How would you want the tow company to react? While it’s every tow company’s right to refuse service, it’s important to understand the dangers and legal ramifications that exist when making the choice to leave behind the motorist who can’t pay.
Colleague Not Competitor
Published: Wednesday, May 08, 2024
By Brian J Riker
Competition is healthy, no doubt about it, but it doesn’t need to always be confrontational or adversarial. Many industries enjoy healthy competition while fostering a spirit of friendly cooperation and growth. Towing doesn’t have to be different, we too can enjoy this spirit of cooperation.
Returning home from the 2024 American Towman ShowPlace-Las Vegas, I am inspired by the spirit of cooperation I witnessed during the show, both on the floor and after hours as towers from across the country broke bread and shared ideas freely.
Why does the spirit have to end once the show ends? I have long supported professional competition, meaning my competitors are just as dedicated to safety, compliance, innovation and training as I am. When I can compete against a peer the playing field is level and success depends upon being able to leverage my unique strengths or my ability to cast a vision that places my company ahead of the others. I don’t want to compete against the uneducated, unskilled, and dangerous operators. There is no legitimate way to compete with them and I refuse to bring myself down to their level.
If we look at doctors, lawyers and even our nemesis, insurance companies, they all have strong professional camaraderie, share best practices, and help elevate each other. Even the larger trucking companies share best practices and cooperate well, all while competing for limited freight to move and a dwindling pool of drivers. It isn’t easy, but it can be done.
Working to develop industry accepted, voluntarily adopted, standards is an important step towards our industry being recognized as true professionals. Let’s face it, we are under attack on many fronts, including our billing practices and how we complete jobs, among many other things. Without standards we do not stand a chance, and if we don’t work towards developing these ourselves then outside forces will, and we will not like them, that I can guarantee!
This all ties into developing a means to fight back against outside parties that do not have our best interests at heart. They view us as a necessary evil that they are looking to contain as much as possible. This is plainly evident with the recent Federal Trade Commission (FTC) “junk fees” proposed rule, and how the Agency charged with oversight of our industry couldn’t give away that authority quickly enough to another agency.
I was impressed with the amount of legislative information available at the show this year, especially the legislative update provided by CTTA and the NORSHC meeting, which was open to all attendees. They made it very clear that it is past time to develop our own industry standards to mitigate the damage that is already occurring. Great job to both organizations, but the work has only just begun, and as an industry we are behind and need to catch up fast.
Sadly, this will never happen without major industry buy-in and cooperation. I know this as a fact given my long history of working with the Towing and Recovery Association of America, which is the only national organization fighting for the interests of towers, yet membership is nowhere as robust by percentage of industry as are our enemies’ trade groups. The same can be said about many state associations, with most only capturing 10-15% of the total towers in their state as members, with even less as active members contributing anything beyond their annual dues.
Many have seen the emergence of new coalitions in the recent years as an attempt to knock down the “old guard,” meaning TRAA; however I do not believe that is the case, at least not anymore. I believe there is room for all of us to coexist, and working in the spirt of collaboration, we can be a powerful force in defense of the towing industry. I welcome the different viewpoints. Seeing things from another point of view can open a new line of attack. Just like the scene size-up at a wreck, having multiple eyes on a problem can lead to a better solution than just one person is able to provide.
I encourage towers of all size, and from all states, to join their state association, the national association and even one of these coalitions if you think it will help, and it will help. We need strength in numbers. Together our voices can rise from a whisper to a roar, and the legislators will have no choice but to listen.
My only concern is if the various organizations tackling the industry problems don’t open effective lines of communication between themselves, we may end up doing more harm than good. Even with differing opinions on some things, and different styles of leadership or operational guidelines, we all can still work together for the common good of the industry.
Just a few years ago TRAA joined forces with one of our most vocal opponents, OOIDA, in an effort to kill a few bills and regulations that would be detrimental not only to trucking, but the towing industry as well. Working in unison, when possible, helps build relationships and shows both sides we have fewer differences and more in common than we ever thought.
Those of you in states with more than one towing association, or where the towing association is part of the trucking association, should understand this better than most. Having an inconsistent message with the lawmakers and regulators often results in nothing being accomplished despite strong efforts from both sides.
So, what say you, my fellow towers? Can we have unity, even with our differences, and grow our industry or are we going to watch it all go down in flames because of ego and misunderstandings? I chose unity.
