Your Carrier Has a Drug Testing Program. Whether They're Running It Is a Different Question.

There was a crash on I-70 a few years back that I think about more than I probably should. The driver had failed a random drug test at his prior carrier sixteen months earlier. That positive test was reported to the FMCSA Drug and Alcohol Clearinghouse within 72 hours, exactly as required. His status: prohibited. Legally barred from operating any commercial motor vehicle until he completed a full return-to-duty process — SAP evaluation, follow-up testing, the whole sequence. He never completed it.

His new carrier — call them MC-4829371, DOT-2948736 — ran a pre-employment Clearinghouse query when they hired him. He was clean at hiring. Then the prior positive test dropped into the system after he'd already been on their books for two months. His status flipped to prohibited. The carrier never saw it because they never ran their annual queries. Not once in sixteen months. The driver told them he was cleared. They didn't check.

After the crash — three injuries, one fatal, $4.7M verdict — one of the first documents plaintiff's counsel requested was the carrier's Clearinghouse query log. It didn't exist. Then they asked for the broker's carrier file. The file showed an MC pull, a SAFER snapshot, a bond confirmation, insurance verification. Not one line asking about the drug and alcohol testing program or whether the carrier was current on their Clearinghouse obligations.

That broker did what most brokers do. It wasn't enough.

What Part 382 Actually Requires

Most people in freight know the outline of 49 CFR Part 382: drivers get tested pre-employment, randomly, post-accident, and in a few other circumstances. What's less understood is the Clearinghouse layer that sits on top of all of that.

The FMCSA Drug and Alcohol Clearinghouse went live in January 2020. Violations have to be reported: positive tests, refusals to test, FMCSA actual knowledge findings, return-to-duty completions, and follow-up negatives. The system creates a centralized record that follows the driver, not just the employer.

Under 49 CFR § 382.701, employers are required to query the Clearinghouse before a CDL driver performs any safety-sensitive function for the first time — the pre-employment query. Fully mandatory since January 6, 2020.

The second requirement gets far less attention: the annual limited query. Employers must query the Clearinghouse for every current CDL driver at least once per year. This became fully mandatory on January 6, 2023. A "limited query" returns one of two answers: prohibited or not prohibited. No details, no violation history, just a flag. If the answer is prohibited, the employer has to run a full query — which requires driver consent — to see what's there.

The annual query is the mechanism that catches exactly the scenario above: a driver who was clean when hired, had a violation reported to the Clearinghouse afterward, and continued operating because nobody ran the required check. Under § 382.501, no employer may permit a driver with a prohibited status to perform a safety-sensitive function. At load-tender time, that translates directly: tender a load to a carrier whose driver is operating in prohibited status — because the carrier stopped running their annual queries — and that load is your exposure.

The Gap the BASIC Score Doesn't Cover

The natural response when drug and alcohol violations come up in vetting is to pull the Controlled Substances BASIC. That's the right instinct. But the BASIC has a ceiling that matters here.

The Controlled Substances BASIC reflects violations detected in roadside inspections and reported to FMCSA through the normal roadside inspection pipeline. What it doesn't capture is a carrier with prohibited drivers on their books because they stopped running annual Clearinghouse queries and never found out about the violations.

Think about the mechanics: a prior employer reports a violation to the Clearinghouse. The driver's status flips to prohibited. The driver's current carrier hasn't run their annual query. Nobody pulls the driver off the road. The driver keeps running loads. At scales, inspectors are checking logbooks, equipment, manifests — they're not routinely running Clearinghouse checks on every driver they wave through. The BASIC stays clean. The carrier's Controlled Substances percentile sits at 6%. Looks fine.

The BASIC is necessary but not sufficient. A clean number tells you violations haven't shown up in roadside inspections. It doesn't tell you whether the carrier is actually meeting their § 382.701 obligations. Those are two different things.

What You Can Ask About in a Carrier Packet

This is where most broker vetting stops well short of what it could accomplish. A few specific questions — in a packet, in a phone call, wherever you're doing the intake — tell you a lot about whether a carrier has a functioning program.

First: who is their service agent or C/TPA? A Consortium/Third-Party Administrator handles testing program administration for carriers that use one — random pool management, Clearinghouse query execution, MIS reporting. Small carriers especially rely on C/TPAs because managing a compliant program in-house requires staying current on regulatory updates that most owner-operators don't have time for. If they can name their C/TPA and have a working relationship with them, the annual queries are probably getting run automatically. If they pause and say "we handle it in-house," ask who specifically handles it. In-house programs are legitimate, but they require more scrutiny.

Second: are they enrolled in the Clearinghouse as an employer? Any carrier who's doing this right can answer in three seconds. If they have to think about it, write that down.

Third — and this is the question I almost never see on anyone's carrier packet — when did they last run annual queries? "Our C/TPA handles them automatically, I think in January each year" is what a functioning program sounds like. "We run them whenever we hire someone new" tells you they understand the pre-employment requirement but not the annual one. "I'm not sure what you mean by annual queries" tells you everything you need to know.

None of these require you to be a DOT auditor. A carrier with a working compliance program answers them without hesitation. I've asked this question a few hundred times. The carriers who can't answer it are almost always the same ones who have other problems somewhere in their file.

The § 382.305 Connection

One more piece worth understanding: under 49 CFR § 382.305, FMCSA sets the minimum random testing rates annually. Currently 50% of the average number of CDL driver positions for controlled substances, 10% for alcohol. Carriers are supposed to document their random testing pool and their annual MIS (Management Information System) data.

The random testing program and the Clearinghouse annual query work in tandem. A carrier who's running their random testing properly is generating results. Some of those results will be positive. Positives have to be reported to the Clearinghouse within 3 business days. If a carrier has a multi-driver operation and has never had a single reportable random testing event in five years, one of two things is true: they have an unusually clean workforce, or they're not actually running random tests at the required rate.

That's a question worth asking too. Not in an accusatory way — just: "Who manages your random testing pool?" The answer to that question, combined with the C/TPA question, gives you a picture of whether the program is real or just paperwork.

Why This Is the Conversation After Montgomery

Before May 14, 2026, the standard broker defense in a negligent selection case relied heavily on FAAAA preemption. State court, state negligence standard, broker liability for carrier selection — most circuits said that was preempted. The Supreme Court closed that door in Montgomery v. Caribe Transport II, LLC. Unanimously. Brokers can now be sued under any state's negligence law for the reasonableness of how they selected a carrier.

"Reasonable care" isn't a fixed checklist. It's what a reasonably prudent broker, in the same situation, with the same information available, would have done. Plaintiff's attorneys get to argue to juries that a reasonably prudent broker — knowing that Part 382 requires annual Clearinghouse queries, knowing that prohibited drivers represent a specific and documented crash risk — would ask whether the carrier is meeting that obligation.

You don't have to audit the carrier. You have to be able to show you asked and documented the answer. A three-line entry in your carrier file noting who you spoke to, what they said about their D&A program, and when the conversation happened is a very different piece of evidence than total silence on the subject.

The silence is what costs you.

How I Document This

For every carrier in the approved-carrier process, the Clearinghouse piece in my file covers three items:

One: the Controlled Substances BASIC percentile, pulled from SAFER with a system-generated timestamp, noted alongside the pull date. If it's above the 50th percentile, that goes in the decision log with an explanation of why I moved forward anyway or didn't.

Two: a contact note from the intake call or packet review that records who at the carrier answered the D&A compliance questions, what they said about their service agent or C/TPA, and whether they confirmed being current on annual queries. This takes thirty seconds to type. It's a timestamped entry. It's not something I could have added after the fact without it being obvious.

Three: if the carrier couldn't answer the C/TPA question, I note that too. Not as disqualification by itself — some carriers run legitimate in-house programs. But I note it, and I ask a follow-up. If a carrier with 15 drivers tells me they run their D&A program entirely in-house, my next question is who signs off on their MIS data every year. The answer to that tells me whether the in-house program is real.

The carriers who give me good answers to all of this never think twice about it. Compliance is just part of how they operate. The carriers who get defensive or vague about drug testing program administration are the ones I'm already looking at for other reasons.

Part 382 annual queries have been fully mandatory for two years. They're not new, they're not obscure, and they're not optional. If your carrier intake process doesn't include a question about whether the carrier is running them, that's a gap you can close this week.

— Mason Lavallet

Founder, DOTScreener.com