BILL NUMBER: SB 871 INTRODUCED
BILL
TEXT
INTRODUCED BY Senator Burton
FEBRUARY 23, 2001
An act to add
Section 3333.7 to the Civil Code, and to amend
Sections 15242, 34520, and 34623, of the Vehicle Code, relating to
commercial vehicles.
LEGISLATIVE COUNSEL'S DIGEST
SB 871, as introduced, Burton. Commercial vehicles: compliance
with drug and alcohol regulations.
(1) Existing law requires motor carriers and drivers to comply with the
controlled substances and alcohol use, transportation, and testing requirements
of the United States Secretary of Transportation, as specified. Existing law
requires every motor carrier to make available for inspection, upon request
of an authorized employee of the Department of the California Highway Patrol,
copies of all results and other records pertaining to
controlled substances and alcohol use and testing conducted pursuant to federal
law, including those records contained in individual driver qualification files.
Existing law grants the department exclusive jurisdiction for the regulation
of safety of operation of motor carriers of property, and the authorization
to suspend the
motor carrier permit of a motor carrier of property on specified grounds. This
bill would permit any person who suffers injury that is proximately caused by
the driver of a commercial motor vehicle to recover treble damages from the
driver's employer where it is shown that the driver of a commercial motor vehicle
was under the influence of alcohol or a controlled substance at the time that
the injury was caused and that the driver's employer failed to comply with specified
requirements. This bill would require the suspension of the motor carrier permit
of a motor carrier of property for failure to comply with the above regulations
with respect to controlled substances and alcohol use, or for failure to make
available for inspection the results and other
records pertaining to alcohol use and testing pursuant to federal law. This
bill would prohibit an applicant for employment as a commercial driver or owner-operator
from being placed on duty by the motor carrier, until compliance with certain
federal laws concerning controlled substance and alcohol use and employment
history has occurred, as specified. The bill would require every motor carrier
to document all activities regarding the making or receiving of drivers' employment
histories. Because a violation of these provisions would be a crime under current
law, this bill would impose a state-mandated local program,
by expanding the scope of a crime.
(2)
Existing law requires a person who is self-employed as a commercial motor vehicle
driver to comply with the commercial motor vehicle safety program and the statues
pertaining to employees. This bill would provide that any person who is an owner-operator,
as described, and who performs services for a motor carrier, is an
employee of that motor carrier for purposes of the motor carrier safety program
and for purposes of certain safety regulations adopted by the Department of
the California Highway Patrol.
(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3333.7 is added to the Civil Code, to read: 3333.7.
(a) Notwithstanding any other provision of law, any person who suffers injury
that is proximately caused by the driver of a commercial motor vehicle shall
be entitled to recover treble damages from the driver's employer where it is
shown both that the
driver of a commercial motor vehicle was under the influence of alcohol or a
controlled substance at the time that the injury was caused and that the driver's
employer failed to comply with any of the requirements of federal law described
in subdivision (a) of Section 34520 of the Vehicle Code.
(b) For
purposes of this section, an "employer" is a person or entity who
employs the driver or who contracts with an owner-operator, who meets the requirements
set forth in Section 34624 of the Vehicle Code, to provide transportation
services. SEC. 2. Section 15242 of the Vehicle Code is amended to read:
15242. (a) A person who is self-employed as a commercial motor vehicle driver
shall comply with both the
requirements of this chapter pertaining to employers and those pertaining to
employees.
(b) Notwithstanding
subdivision (a), any person who is an owner-operator meeting the requirements
of subdivision (b) of Section 34624, and who performs services for a
motor carrier, is an employee of that motor carrier for the purposes of this
chapter and for purposes of the regulations adopted by the Department of the
California Highway Patrol pursuant to Section 34501. SEC. 3. Section 34520
of the Vehicle Code is amended to read: 34520.
(a) Motor
carriers and drivers shall comply with the controlled substances and alcohol
use, transportation, and testing requirements of the United States Secretary
of Transportation as set forth in Part 382 (commencing with Section 382.101)
of, and Sections 392.5(a)(1) and 392.5(a)(3) of, Title 49 of the Code of Federal
Regulations.
(b) (1)
Every motor carrier shall make available for inspection, upon the request of
an authorized employee of the department, copies of all results and other records
pertaining to controlled substances and alcohol use and testing conducted pursuant
to federal law, as specified in subdivision (a), including those records contained
in
individual driver qualification files.
(2) For
the purposes of complying with the return-to-duty alcohol or controlled substances
test requirements, or both, of Section 382.309 of Title 49 of the Code
of Federal Regulations and the followup alcohol or controlled substances test
requirements, or both, of Section 382.311 of that title, the department may
use those test results to monitor drivers who are motor carriers.
(3) No evidence
derived from a positive test result in the possession of a motor carrier shall
be admissible in a criminal prosecution concerning unlawful possession, sale,
or distribution of
controlled substances.
(c) Any
drug or alcohol testing consortium, as defined in Section 382.107 of Title
49 of the Code of Federal Regulations, shall mail a copy of all drug and
alcohol positive test result summaries to the department within three days of
the test. This requirement applies only to drug and alcohol positive tests of
those drivers employed by motor carriers who operate terminals within this state.
(d) A transit
agency receiving federal financial assistance under Section 3, 9, or 18
of the Federal Transit Act, or under Section 103 (e)(4) of Title 23 of
the United States Code, as defined in Section 653.7 of Title 49 of the
Code of Federal Regulations, concerning controlled substance use, and Section
654.7 of Title 49 of the Code of Federal Regulations, concerning alcohol
abuse, shall comply with the controlled substances and alcohol use and testing
requirements of the United States Secretary of Transportation as set forth in
Part
653 (commencing with Section 653.1) of, and Part 654 (commencing with Section
654.1) of, Title 49 of the Code of Federal Regulations.
(e) An applicant
for employment as a commercial driver or an owner-operator, meeting the requirements
of subdivision (b) of Section 34624, may not be placed on duty by a motor carrier
until a preemployment test for controlled substances and alcohol use required
under the federal regulations referenced in subdivision (a) have
been completed and a negative test result has been reported.
(f) An applicant
for employment as a commercial driver or an owner-operator, meeting the requirements
of subdivision (b) of Section 34624, may not be placed on duty by a motor
carrier until the motor carrier has completed a full investigation of the driver's
employment history as required under federal law. Every motor carrier, whether
making or receiving inquiries concerning a driver's history, shall document
all activities it has taken to comply with this subdivision.
(g) It is
a misdemeanor punishable by imprisonment in the county jail for six months and
a fine not to exceed five thousand dollars ($5,000), or by both the imprisonment
and fine, for any person to willfully violate this section. As used in this
subdivision, "willfully" has the same meaning as defined in Section
7
of the Penal Code. (f)
(h) This
section does not apply to a peace officer, as defined in Section 830.1 or 830.2
of the Penal Code, who is authorized to drive vehicles described in Section
34500 if that peace officer is participating in a substance abuse detection
program within the scope of his or her employment. SEC. 4. Section 34623
of the Vehicle Code is amended to read: 34623. (a) The Department
of the California Highway Patrol has exclusive jurisdiction for the regulation
of safety of operation of motor carriers of property. (b) The motor carrier
permit of a motor carrier of property may be suspended for failure to do any
of the following:
(1) Maintain
any vehicle of the carrier in a safe operating condition or to comply with this
code or with applicable regulations contained in Title 13 of the California
Code of Regulations, if that failure is either a consistent failure or presents
an imminent danger to public safety.
(2) Enroll
all drivers in the pull notice system as required by Section 1808.1.
(3) Submit any application or pay any fee required by subdivision (e) or (h) of Section 34501.12 within the timeframes set forth in that section. (c) The motor carrier permit of a motor carrier of property shall be suspended for failure to either (1) comply with the requirements of federal law described in subdivision (a) of Section 34520 of the Vehicle Code, or (2) make copies of results and other records available as required by subdivision (b) of that section. (d) The department, pending a hearing in the matter pursuant to subdivision (e) (f) , may suspend a carrier's permit. (d) (e)
(1) A motor
carrier whose motor carrier permit is suspended pursuant to subdivision (b)
may obtain a reinspection of its terminal and vehicles by the Department of
the California Highway Patrol by submitting a written request for reinstatement
to thedepartment and paying a reinstatement fee as required by Section
34623.5.
(2) A motor
carrier whose motor carrier permit is suspended for failure to submit any application
or to pay any fee required by Section 34501.12 shall present proof of having
submitted such application or have paid that fee to the Department of the California
Highway Patrol before applying for reinstatement of its motor
carrier permit.
(3) The department shall deposit all reinstatement fees collected from motor carriers of property pursuant to this section in the fund. Upon receipt of the fee, the department shall forward a request to the Department of the California Highway Patrol, which shall perform a reinspection within a reasonable time, or shall verify receipt of the application or fee or both the application and fee. Following the term of a suspension imposed under Section 34670, the department shall reinstate a carrier's motor carrier permit suspended under subdivision (b) upon notification by the Department of the California Highway Patrol that the carrier's safety compliance has improved to the satisfaction of the Department of the California Highway Patrol, or that the required application or fees have been received by the Department of the California Highway Patrol, unless the permit is suspended for another reason or has been revoked.
(e)
(f) Whenever
the department suspends the permit of any carrier pursuant to subdivision (b)
or paragraph (3) of subdivision (h) (i) , the department shall furnish
the carrier with written notice of the suspension and shall provide for a hearing
within a reasonable time, not to exceed 21 days, after a written request is
filed with the department. At the hearing, the carrier shall show cause why
the suspension should not be continued.
Following the hearing, the department may terminate the suspension, continue
the suspension in effect, or revoke the permit. The department may revoke the
permit of any carrier suspended pursuant to subdivision (b) at any time that
is 90 days or more after its suspension if the carrier has not filed a written
request for a
hearing with the department or has failed to submit a request for reinstatement
pursuant to subdivision (d) (e).
(f)
(g) Notwithstanding any other provision of this code, no hearing shall be
provided when the suspension of the motor carrier permit is based solely upon
the failure of the motor carrier to maintain satisfactory proof of financial
responsibility as required by this code, or failure of the motor carrier to
submit an application or to pay fees required by Section 34501.12.
(g)
(h) A motor carrier of property may not operate a commercial motor vehicle
on any public highway in this state during any period its motor carrier of property
permit is suspended pursuant to this division.
(h)
(i) (1) A motor carrier of property whose motor carrier permit is suspended
pursuant to this section or Section 34505.6, which suspension is based wholly
or in part on the failure of the motor carrier to maintain any vehicle in safe
operating condition, may not lease, or otherwise allow, another motor carrier
to operate the vehicles of the carrier subject to the suspension, during the
period of the suspension.
(2) A motor
carrier of property may not knowingly lease, operate, dispatch, or otherwise
utilize any vehicle from a motor carrier of property whose motor carrier permit
is suspended, which suspension is based wholly or in part on the failure of
the motor carrier to maintain any vehicle in safe operating condition.
(3) The
department may immediately suspend the motor carrier permit of any motor carrier
that the department determines to be in violation of paragraph (2). SEC.
5. No reimbursement is required by this act pursuant to Section 6 of Article
XIIIB of the California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this act creates
a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime or infraction,
within the meaning of Section 17556 of the Government Code, or changes the definition
of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.