HB 110 – AS INTRODUCED
HOUSE BILL 110
This bill requires that reports of drug or alcohol testing of commercial driver license holders be forwarded to the department of safety. This bill also requires the disqualification of a commercial driver license holder who fails a drug or alcohol test.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [
in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Seven
AN ACT relative to commercial driver licenses when the license holder fails a drug or alcohol test.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Commercial Licensing; Administrative Fines. Amend RSA 263:93-b, I(b) to read as follows:
(b) The commissioner of the department of safety, after notice and hearing pursuant to RSA 541-A, may impose an administrative fine not less than $2,500 and not to exceed $10,000 for each offense upon any employer who violates an out-of-service order, or who knowingly requires or permits a driver to violate or fail to comply with an out-of-service order, or who violates RSA 263:96-a.
2 New Paragraph; Commercial Licensing; Violations and Penalties; Positive Drug or Alcohol Test. Amend RSA 263:94 by inserting after paragraph III the following new paragraph:
IV. A person is disqualified from driving a commercial motor vehicle if a report has been received by the department under RSA 263:96-a that the person has received a confirmed positive drug or alcohol test either as part of the testing program required by 49 C.F.R. part 382 or 49 C.F.R. part 40 or as part of a preemployment drug test. A disqualification under this paragraph remains in effect until the person undergoes a drug and alcohol assessment by an agency certified by the department of health and human services and, if the person is classified as an alcoholic, drug addict, alcohol abuser, or drug abuser, until the person presents evidence of satisfactory participation in or successful completion of a drug or alcohol treatment program that has been certified by the department of health and human services under rules adopted pursuant to RSA 172:8-b. The agency making a drug and alcohol assessment under this paragraph shall forward a diagnostic evaluation and treatment recommendation to the department for use in determining the person’s eligibility for driving a commercial motor vehicle. Persons who are disqualified under this paragraph more than twice in a 5-year period shall be disqualified for life.
3 New Section; Commercial Licensing; Positive Drug or Alcohol Test. Amend RSA 263 by inserting after section 96 the following new section:
263:96-a Positive Drug or Alcohol Test.
I. All medical review officers or breath alcohol technicians hired by or under contract to a motor carrier or employer who is required to have a testing program under 49 C.F.R. part 382 or to a consortium the carrier belongs to, as defined in 49 C.F.R. section 382.107, shall report the finding of a commercial driver’s confirmed positive drug or alcohol test to the department on a form provided by the department. Motor carriers, employers, or consortiums shall make it a written condition of their contract or agreement with a medical review officer or breath alcohol technician, regardless of the state where the medical review officer or breath alcohol technician is located, that the medical review officer or breath alcohol technician is required to report all New Hampshire licensed drivers who have a confirmed positive drug or alcohol test to the department within 3 business days of the confirmed test. Failure to obtain this contractual condition or agreement with the medical review officer or breath alcohol technician by the motor carrier, employer, or consortium shall result in an administrative fine as provided in RSA 263:93-b. Substances obtained for testing shall not be used for any purpose other than drug or alcohol testing under 49 C.F.R. part 382.
II. When the department receives a report from a medical review officer or breath alcohol technician that the holder of a commercial driver license has a confirmed positive drug or alcohol test, either as part of the testing program required by 49 C.F.R. part 382 or as part of a preemployment drug test, the department shall disqualify the driver from driving a commercial motor vehicle under RSA 263:94 subject to a hearing as provided in this section. The department shall notify the person in writing of the disqualification by first class mail. The notice shall explain the procedure for the person to request a hearing.
III. A person disqualified from driving a commercial motor vehicle for having a confirmed positive drug or alcohol test may request a hearing to challenge the disqualification within 20 days from the date notice is given. If the request for a hearing is mailed, it shall be postmarked within 20 days after the department has given notice of the disqualification.
IV. The hearing shall be conducted in the county of the person’s residence, except that the department may conduct all or part of the hearing by telephone or other electronic means.
V. For the purposes of this section, the hearing shall be limited to the following issues: (a) whether the driver is the person who took the drug or alcohol test; (b) whether the motor carrier, employer, or consortium has a program that meets the federal requirements under 49 C.F.R. part 382; and (c) whether the medical review officer or breath alcohol technician making the report accurately followed the protocols for testing established to certify the results. Evidence may be presented to demonstrate that the test results are a false positive. For the purpose of a hearing under this section, a copy of the positive test result with a declaration by the tester or medical review officer or breath alcohol technician stating the accuracy of the laboratory protocols followed to arrive at the test result is prima facie evidence of a confirmed positive drug or alcohol test result. After the hearing, the department shall order the disqualification of the person either be rescinded or sustained.
VI. If the person does not request a hearing within the 20-day time limit, or if the person fails to appear at a hearing, the person has waived the right to a hearing and the department shall sustain the disqualification.
VII. A decision by the department disqualifying a person from driving a commercial motor vehicle is stayed and does not take effect while a formal hearing is pending under this section or during the pendency of a subsequent appeal to superior court provided that there is no conviction for a moving violation or no finding that the person has committed a traffic infraction that is a moving violation and the department receives no further report of a confirmed positive drug or alcohol test during the pendency of the hearing and appeal. If the disqualification is sustained after the hearing, the person who is disqualified may file a petition in the superior court of the county of his or her residence to review the final order of disqualification by the department in the manner provided in RSA 263:75.
VIII. The department may adopt rules specifying further requirements for requesting a hearing under this section.
IX. The department is not civilly liable for damage resulting from disqualifying a driver based on a confirmed positive drug or alcohol test result as required by this section or for damage resulting from release of this information that occurs in the normal course of business.
4 Effective Date. This act shall take effect January 1, 2008.