What Is Actual Knowledge under FMCSA Drug and Alcohol Rules?

Actual knowledge is the FMCSA term for how a motor carrier can learn of a driver's drug or alcohol violation without a positive test. Under 49 CFR 382.107, actual knowledge means the employer knows a driver has used alcohol or controlled substances based on:

• Direct observation. The employer observes the use itself
• Previous employers. Information from the driver's previous employer or employers
• Traffic citation. A ticket, complaint or other document charging the driver with driving a CMV under the influence of alcohol or controlled substances
• Admission. The driver admits alcohol or controlled substance use, except an admission under a qualified voluntary self-identification program in 49 CFR 382.121

Direct observation means seeing the use. It does not include seeing behavior or physical signs that would support a reasonable suspicion test. A supervisor who sees signs of impairment but not use orders a test under 49 CFR 382.307 instead (49 CFR 382.107).

Which violations it covers. The Clearinghouse rule lists four actual knowledge violations (49 CFR 382.705(b)(4)):

• Using alcohol on duty (49 CFR 382.205)
• Using alcohol within four hours before duty (49 CFR 382.207)
• Using alcohol before a required post-accident test (49 CFR 382.209)
• Using a controlled substance, unless properly prescribed and advised as safe (49 CFR 382.213(c))

Sections 382.205, 382.207 and 382.213(c) also bar an employer with actual knowledge from letting the driver perform safety-sensitive functions.

Reporting to the Clearinghouse. The employer reports these violations to the Drug and Alcohol Clearinghouse by the close of the third business day after obtaining actual knowledge (49 CFR 382.705(b)(4)). The report includes:

• The driver's and employer's identifying information
• The date the employer obtained actual knowledge
• Any witnesses and a description of the violation
• Evidence supporting each fact, such as statements, photographs or recordings
• Proof that the employer gave the driver the information reported, if applicable (49 CFR 382.705(b)(5))

Employee statements may support the report, but admissions made under a 382.121 self-identification program are excluded (49 CFR 382.705(b)(5)(vi)).

What follows. The driver may not perform safety-sensitive functions until completing the return-to-duty process in 49 CFR Part 40, subpart O (49 CFR 382.503(a), 49 CFR 40.305).