The Driver Who Tested Positive and Kept Driving: The Clearinghouse RTD Gap Brokers Miss

Nine months before this driver climbed into a Kenworth pulling a 44,000-pound load of food-grade product out of a Louisville distribution center, he had tested positive on a random controlled substances test. His carrier — I'll call them MC-2741897 — entered the violation into the FMCSA Drug & Alcohol Clearinghouse as required. What happened next is where things went sideways.

Under 49 CFR § 382.309, that driver was prohibited from performing safety-sensitive functions until he completed a full Return-to-Duty process: evaluation by a Substance Abuse Professional, compliance with whatever treatment or education program the SAP recommended, a verified-negative return-to-duty test administered under direct observation, and then a follow-up testing program running a minimum of six tests across the next twelve months. Seven weeks after the violation entry, MC-2741897 dispatched him anyway. Not because they thought he'd cleared RTD. Because they needed a driver on a Thursday afternoon and no one was tracking the SAP paperwork. He had a negative from a walk-in clinic — not the official DOT-observed return-to-duty test through their registered C/TPA — and someone in dispatch decided that was close enough.

The broker who tendered that $210,000 load was working off a clean carrier snapshot and a valid ACORD 25. They had no idea any of this was in the Clearinghouse. That's the gap I want to talk about.

What the Clearinghouse actually tracks

Most broker training on the Clearinghouse stops at "carriers must run a pre-employment full query." That's true, it's required under 49 CFR § 382.701, and it's worth understanding — but the Clearinghouse is more than a pre-hire checkbox. It's a live compliance timeline. When a driver has a violation, the Clearinghouse tracks every subsequent step of the return-to-duty process:

• The initial violation entry (carrier or MRO, within three business days under § 382.705)
• The SAP referral and evaluation outcome
• The driver's compliance or noncompliance with the SAP's recommended program
• The return-to-duty test result
• The SAP's follow-up testing plan and its completion status

That record doesn't disappear when the driver changes employers. It follows them. The next carrier who runs a pre-employment full query sees the prior positive AND whether RTD was properly completed. An employer who sees an unresolved RTD hold is required by § 382.309 to keep that driver out of safety-sensitive functions until the process is finished.

The problem isn't the system. The system is reasonably well-designed. The problem is that the system depends on carriers and SAPs actually entering data, administering programs, and enforcing the RTD hold. And not all of them do.

The version nobody talks about at vetting webinars

A driver who completed RTD correctly — SAP evaluation done, treatment completed, RTD test negative, follow-up program running — is allowed to drive. That's fine. Their Clearinghouse record would reflect the full pathway. An employer who pulls a full query would see a prior positive, a documented RTD process, and current follow-up testing in progress. That's the system working.

The dangerous version is the driver who tested positive, got entered into the Clearinghouse, and came back behind the wheel without completing RTD. That driver is operating in violation of § 382.309. The carrier is violating § 390.11 and potentially § 382.205. The driver has an active, unresolved positive in the Clearinghouse that any employer with access would see immediately — but you, as a broker, are not an employer under the regulation and cannot query it.

This happens most reliably in three situations: small carriers (under five power units) where the owner is also the dispatcher and nobody has formal compliance oversight; carriers using bare-minimum C/TPAs that charge $12/month per driver for random test enrollment and don't do any proactive compliance monitoring; and carriers dispatching owner-operators who are supposed to be managing their own Clearinghouse compliance under a lease agreement and frequently aren't. Those three categories overlap significantly with the newer-authority carriers that get added to broker approved lists after a 90-second SAFER check.

What the BASIC scores don't catch

The Controlled Substances/Alcohol BASIC in CSA picks up some of this, but not all of it. Roadside inspectors can discover C/S violations during a Level I or Level II inspection if they're specifically checking for Clearinghouse holds or running DOT drug tests on the driver. Those roadside events flow into the BASIC as violations. But a driver who tested positive on a random test, never crossed an inspection station, and is quietly being dispatched mid-RTD won't show up in the BASIC until someone catches them at the roadside.

A carrier at 35% in the Controlled Substances/Alcohol BASIC might still have a driver in an incomplete RTD program. The BASIC shows you roadside enforcement outcomes. The Clearinghouse shows you program compliance. They're related but they're not the same database, and you only have direct access to one of them.

If the CS/Alcohol BASIC is in alert — above the 50% intervention threshold for that category — that's a flag worth slowing down for, because it suggests the carrier's testing program has produced enough roadside-detectable violations to show up in percentile scoring. A carrier at 62% in CS/Alcohol is a carrier FMCSA has flagged for intervention in that specific BASIC. That's the point at which you ask harder questions.

What you can actually do

You can't query the Clearinghouse. § 382.701 limits direct query access to current and prospective employers. Brokers are not employers in that context, and there's no workaround.

What you can do is ask, and ask precisely.

"Do you have a drug and alcohol testing program?" isn't a useful question. Every carrier says yes. The question that surfaces the RTD gap is: "Do you have any drivers currently in a Return-to-Duty program?" A carrier with a properly managed program knows the answer immediately. Their C/TPA administrator tracks RTD holds by driver. If the answer is yes, that's not automatically disqualifying — a driver who tested positive eighteen months ago, completed RTD correctly, and is in the final months of their follow-up testing window is fine. Ask what stage they're at and whether their C/TPA is actively supervising the program. The red flag is when the carrier doesn't know the answer, gives you a vague "I don't think so," or gets defensive.

"Who administers your random testing program — your C/TPA?" Ask by name. A carrier using a nationally recognized C/TPA — DISA, Consortium/Third-Party Administrators with legitimate DOT compliance programs — is running a different program than a carrier who uses "a testing place in town" or handles it through an informal arrangement. The carrier is responsible for program compliance regardless of who they designate, but the quality of C/TPA administration correlates strongly with how tight the Clearinghouse entries and RTD tracking actually are.

"Can you confirm that all drivers in current active service have completed all required pre-employment Clearinghouse full queries, and that no active driver has an unresolved return-to-duty hold?" This is the version with legal weight. A carrier who says yes to that has made a representation. A carrier who says yes and is wrong has created their own liability exposure — and created a record showing your reliance was reasonable. A carrier who can't answer it is telling you something about how they run their program.

After Montgomery, choosing not to ask is choosing not to know

Montgomery v. Caribe Transport II, LLC — the Supreme Court's unanimous May 2026 ruling — didn't invent new regulatory requirements. It changed the consequence of not meeting them. Before that ruling, FAAAA preemption got most state-law negligent-selection claims dismissed early, and the depth of the diligence analysis was never really tested. Now those claims survive into state court, and "reasonable diligence" has to hold up under cross-examination.

In that environment, here's how the deposition goes on this specific issue: "Did you know, prior to tendering this load, that freight brokers cannot query the FMCSA Clearinghouse directly?" Yes. "Did you know that carriers are required by 49 CFR § 382.309 to prohibit any driver with an unresolved RTD hold from operating a commercial vehicle?" You should know this. "Did you ever, in your carrier onboarding process or in your pre-tender vetting, ask this carrier whether any of their active drivers had an unresolved return-to-duty hold in the Clearinghouse?"

If the answer is no, you've established that you understood the regulatory structure, knew there was a compliance category you couldn't directly verify, and chose not to ask anyone who could verify it. That's not a defense. That's a gap.

The carriers most likely to dispatch an RTD-incomplete driver are not the large well-resourced carriers with dedicated safety compliance staff. They're the 2–4 truck operations running on thin margins where the owner, dispatcher, and sometimes driver are overlapping roles. Those same carriers are attractive to capacity-hungry brokers because they often have trucks available when the big fleets don't. The overlap between "carrier I'd add to my approved list in a hurry" and "carrier whose drug program is held together with hope" is bigger than most brokers want to admit.

How I document this

In a carrier onboarding file — and on the T-call log before every first load with a new carrier — I note:

• C/TPA identity: The name of their consortium or TPA, confirmed verbally. If they don't have a designated C/TPA and are administering their program in-house, I note that.
• RTD attestation: Whether I asked the RTD question, what the carrier said, and whether they could answer it confidently.
• CS/Alcohol BASIC: Percentile at time of vetting. Alert status triggers a harder follow-up conversation before approval.
• Who I spoke with and the date and time of the call.

This doesn't give me Clearinghouse access. Nothing short of a regulatory change does that. But a file showing I asked the question, recorded the carrier's answer, and noted any flags is a file that tells a defensible story. A file with nothing on this topic — on a load that ends in a crash involving a driver operating mid-RTD — tells a very different one.

The Clearinghouse RTD gap isn't exotic. It happens regularly, it's invisible from the outside, and it's completely askable about. Pick up the phone before the first load.

— Mason Lavallet

Founder, DOTScreener.com