By Wayne Schooling

On March 22, 2024, a concrete pumper truck veered into oncoming traffic on State Highway 21 in Texas, striking a school bus full of children and ultimately killing a 5-year-old and an adult. At the time of the crash, the bus was transporting 44 children and 11 adults’ home from a field trip to the Texas Zoo.

According to reports, the driver of the concrete truck, 42 year-old Jerry Hernandez, admitted to law enforcement he had smoked marijuana the night before the accident, had used cocaine the morning of the accident, and had only obtained around 3 hours of sleep the night before. Hernandez was subsequently arrested and charged with criminally negligent homicide. Court records reveal Hernandez was in so-called “prohibited” status in the federal Drug & Alcohol Clearinghouse due to a prior refusal to submit to a reasonable suspicion test in 2020.

Investigators also met with FJM Concrete, LLC, the company that operates the concrete truck involved in the crash, according to court records. The owner of FJM allegedly admitted he had not verified the status of Hernandez’s CDL or his Clearinghouse record.

The accident is now under investigation by the NTSB.

Sometimes accidents are just accidents; by all accounts, this wasn’t one of them. Based on available information, this one was very much preventable. Had the employer of this driver taken the basic steps required of it by federal and/or state law, this driver wouldn’t have been operating the truck at the time of the accident and people wouldn’t have died.

Enough is enough! When are carriers going to learn their lesson and put in the work and effort it takes to keep our roadways safe? Complying with laws that exist to help accomplish this goal is the bare minimum. If you’re not doing that, shame on you; you are part of the problem. But fixing this problem requires a bigger commitment. What are you doing to truly improve safety? Anything?

There are plenty of lessons fleets can/should take away from this particular case. Here are just a few that come to mind…

If you aren’t using the Clearinghouse,

you better start

In January 2020, the Federal Motor Carrier Safety Administration (FMCSA) rolled out its Drug & Alcohol Clearinghouse, which it describes as an “online database [that] helps keep roads safer for all drivers by identifying, in real time, drivers prohibited from performing safety-sensitive functions, such as operating a commercial motor vehicle (CMV), due to a drug and alcohol program violation.”

Anyone who employs or engages commercial drivers to operate vehicles that require a CDL is obligated to run Clearinghouse queries on these drivers to ensure they are not prohibited from operating due to prior drug/alcohol violations.

It’s been four years since FMCSA mandated carriers use the Clearinghouse; however, I’m routinely shocked when fleets tell me they haven’t been using it. Why not? It takes a few minutes to sign up for a Clearinghouse account and run a required query, and it costs less than $2 to do so. It’s also required by law. So, what exactly is your excuse?

According to Clearinghouse data, as of January 2024, there are over 158,000 commercial drivers in “prohibited” status due to prior drug/alcohol testing violations. By law, these drivers are NOT eligible to operate commercial vehicles. They shouldn’t be on the road.

Turning back to the case at hand, according to available information, FJM had a regulatory obligation but failed to run a Clearinghouse query on Hernandez. Had it done so, it’s my understanding FJM would have discovered that Hernandez was in “prohibited” status and could have kept him out of the truck. That simple step could have spared two lives in this case.

Simply put, if you’re hiring individuals to operate CDL-sized equipment and you’re not utilizing the Clearinghouse like you’re supposed to, you’ve got a big problem. You need to register for an account and start using it ASAP.

Also, in November of 2024, state drivers’ licensing agencies will be compelled to automatically downgrade the CDLs of drivers who are put into prohibited status in the Clearinghouse. That should help fill a gap that currently exists in the system, which allows drivers to keep their CDLs despite being prohibited from operating vehicles that require them. But this will not eliminate the burden that rests on the shoulders of fleets to ensure their drivers are properly qualified, including via required Clearinghouse queries.

Employing drivers with prior drug/alcohol violations is risky; you better have a plan

In this case, Hernandez allegedly had a history of drug use. It’s unclear whether FJM knew of that history when it hired him; however, this situation is exceedingly common in our industry. Drivers with prior drug/alcohol testing violations apply to drive for new carriers, and the question is whether those new carriers should hire these drivers despite their history.

It’s not an easy question to answer. The federal drug/alcohol regulations prescribe the steps that regulated drivers can take to “return to duty” once they violate the drug/alcohol testing rules. In other words, the regulations themselves allows drivers to keep driving after a drug/alcohol testing violation, so long as they jump through the required hoops. Of course, that doesn’t mean subsequent putative employers are required to hire them.

Some–perhaps many–carriers make it a matter of company policy that they will not hire someone who has previously violated the drug/alcohol testing rules. To them, it’s too risky to hire these drivers even though they’ve completed the return-to-duty steps. This case is a good example of that.

Even if Hernandez had gone through the steps to “return to duty,” he clearly had a persistent drug abuse problem, which ultimately led to a catastrophic accident. Simply stated, putting drivers with a known history of drug/alcohol problems behind the wheel of heavy trucks and buses is inherently risky, even if technically allowed by the regulations.

Are you willing to take that risk? If so, you better have some guard rails in place to help you mitigate that risk. What I mean is that if you intend to hire drivers with a history of drug/alcohol problems, you should ensure you’re not turning a blind eye to their potential relapse. If you do and that leads to a catastrophic accident, you may be partly to blame.

So, what can you do to help minimize that exposure? Well, there are several options. You could subject those drivers to more frequent non-DOT random drug/alcohol testing. You could ensure you are having regular interactions with them to look for signs of impairment. You could provide them ongoing education and support. In short, be sure you’re doing something.

You should have plenty of folks trained in reasonable suspicion

The regulations require any carrier whose drivers operate CDL-sized vehicles to train their driver supervisors in reasonable suspicion. In other words, anyone who interacts regularly with these drivers must be trained to detect the signs and symptoms of drug/alcohol impairment.

Specifically, they must receive at least one hour’s worth of training on drug use and another hour’s worth of training on alcohol use. If they detect impairment, then they must direct the driver to submit to a reasonable suspicion drug/alcohol test.

In the case at hand, Hernandez admitted to using marijuana the night before and cocaine the morning of the accident. He also admitted to sleeping only 3 hours the night before, and court records indicate he was falling asleep during interrogations shortly after the accident.

What we don’t know is whether FJM had any interactions with Hernandez prior to the accident and whether he exhibited any signs of impairment. I have to think there’s a good chance he did. If so, and had FJM detected that impairment and directed Hernandez to submit to a reasonable suspicion test, then maybe they could have avoided this accident altogether.

Long story short, fleets need to ensure they are training their driver supervisors in reasonable suspicion. They have a critical role to play in that they are the front-line defense against drivers operating while impaired.

Monitoring drivers’ available hours is basic compliance

In this case, Hernandez admitted to only sleeping for three hours the night before the accident. And court records indicate he was falling asleep in his post-accident interrogations. Whether due to his drug use or lack of sleep, Hernandez was clearly fatigued and should not have been operating the vehicle at the time of the accident.

Driver fatigue has historically and continues to be a significant contributor to highway accidents. Indeed, it’s the impetus for the hours-of-service regulations that we’ve had in place in this country since the 1930s. It also happens to be a common trigger for so-called nuclear verdicts against trucking companies, as detailed by the American Transportation Research Institute (ATRI) in its 2020 study of these types of cases. That’s not surprising, yet many fleets continue to struggle mightily with hours-of-service compliance. Electronic logging devices (ELDs) were meant to help, but the jury’s still out on whether they do.

In my experience, the fleets that struggle the most with hours-of-service compliance are simply not putting in the work it takes to get control of the issue. Plenty of blame gets passed around, but ultimately it really comes down to closely monitoring drivers’ hours and holding them accountable to violations.

As a general rule, carriers are not (1) keeping a close enough watch on HOS; and (2) forceful enough when it comes to dealing with repeat HOS offenders. If nothing else, ELDs make it easier for carriers to keep track of each driver’s available hours and to sniff out any funny business in their logging. But too often, carriers are just ignoring that data, which inevitably leads to violations and could lead to serious crashes.

So, first thing’s first, fleets need to be routinely checking driver logs and confirming drivers are within their allowable limits before dispatching them. Had FJM done that in this case, it presumably would have discovered Hernandez had not obtained the required 10 hour-off duty break and shouldn’t have been on the road.

Beyond monitoring drivers’ compliance with the HOS rules, carriers also need to be more aggressive in holding drivers accountable for violations. Too often they’re letting these issues slide. There need to be real “teeth” to a carrier’s progressive discipline program. Drivers who repeatedly violate the law need to be effectively suspended and ultimately terminated, or else the issues will persist.

I understand fleets are hesitant to do this when drivers are hard to come by and expensive to onboard, but those are just excuses that won’t ultimately matter in the context of a catastrophic accident. Contractor fleets, this also applies to you! That you’re balancing the employment-status of your drivers against safety in limiting your “control” over them will be cold comfort to the families of the folks that your drivers end up killing or injuring or the juries who will be hearing the cases.

Safety technology should be higher on your priority list

It’s unclear whether FJM had any safety technology installed on the concrete truck Hernandez was driving. Would lane departure warnings have made a difference here? What about automatic emergency braking? Hard to say until we get the full details, but it’s hard to imagine those technologies would have hurt.

I get it. It’s expensive for fleets to install equipment that isn’t currently mandated by regulation. But as with most things, it’s a cost/benefit analysis. If there’s even some remote likelihood that a given technology could potentially prevent the death of a 5-year-old, it should at least be considered.

Maybe the economics of it don’t work for you at the moment, but what precludes you from placing it in line for implementation down the line? Also, as more and more fleets begin to voluntarily adopt these technologies across the country, the more likely they will be considered the industry standard against which you will be judged in highway accident litigation.

Conclusion

As they say, hindsight is 20/20. But if we as fleets aren’t learning lessons from accidents like this one and taking steps to keep ourselves out of them, we are doing ourselves a tremendous disservice and dooming ourselves to a similar fate. This particular case highlights the importance of complying with applicable drug/alcohol testing and hours-of-service regulations, to name just a couple.