What the FMCSA Drug & Alcohol Clearinghouse Can (And Can't) Tell You About a Carrier

I sat through a panel a few weeks ago where a defense lawyer was walking brokers through a recent carrier-liability case. The crash was bad. The driver had a positive controlled-substances test on file in the FMCSA Drug & Alcohol Clearinghouse from his previous carrier. The new carrier — the one that dispatched him on the load that crashed — had not run the Clearinghouse query they were required to run before putting him behind the wheel. That fact was central to the plaintiff's case against the carrier. It also got dragged into the broker's case, because the broker's diligence file showed no inquiry into whether the carrier had a current drug & alcohol testing program in compliance with 49 CFR Part 382.

The Clearinghouse is one of the most powerful safety tools FMCSA has built in the last decade. Brokers cannot query it directly — only the carrier (or its designated consortium/TPA) can — but understanding how it works, and asking the carrier the right questions about it, is one of the few diligence steps that closes a gap many broker files miss entirely.

Here's the working knowledge you actually need.

What the Clearinghouse is

The FMCSA Commercial Driver's License Drug and Alcohol Clearinghouse is an online database that contains the results of every DOT-regulated drug and alcohol violation by a CDL driver. Pre-employment testing positives, random testing positives, post-accident positives, refusals to test, and similar events get reported into the Clearinghouse by carriers and medical review officers. The driver doesn't get to "wash" a positive by moving to another carrier and starting fresh — the record follows them.

Carriers are required by 49 CFR § 382.701 to query the Clearinghouse before hiring a driver and at least annually thereafter for current drivers. Two query types exist:

Limited query. The carrier asks the Clearinghouse whether the driver has any records in the system. The Clearinghouse responds with a yes/no — driver consent is obtained outside the Clearinghouse interface (usually a separate written form). Limited queries satisfy the annual query requirement for current drivers.

Full query. The carrier sees the detailed contents of any violation records — what happened, when, and where in the return-to-duty process the driver is. Driver consent has to be granted through the Clearinghouse system itself (the driver logs in and authorizes the query). Full queries are required for pre-employment.

Both query types cost money — a small amount, paid by the carrier through a query plan they buy from FMCSA. There are also Consortium/Third-Party Administrators (C/TPAs) that carriers can designate to administer their drug & alcohol program and to run queries on their behalf. C/TPAs can run queries — but they have to be formally designated by the carrier, and the C/TPA cannot purchase queries on behalf of the carrier (the carrier has to pay).

That's the system. Now here's the part that matters for brokers.

Brokers can't query the Clearinghouse

The Clearinghouse is for carrier-employer use. Brokers are not employers of the driver and cannot run queries. There's no broker-tier access.

This trips up brokers who, hearing about the Clearinghouse, assume they should be checking it as part of vetting. They can't. What they can do — and what *Montgomery* makes important — is ask the carrier in writing whether they have completed their required Clearinghouse queries and whether their Part 382 testing program is in compliance.

This is one of those diligence items that's cheap, easy, and almost entirely overlooked. The carrier knows the answer. The broker can put the question in front of the carrier. The carrier can confirm in writing as part of a load-specific attestation. That confirmation does the same legal work as the pre-trip attestation discussed in another post here — it converts a Part 382 compliance question (the carrier's duty) into a documented representation by the carrier (the broker's evidence of reliance).

What the carrier should be able to tell you

When you ask a carrier "is your drug & alcohol testing program in compliance with 49 CFR Part 382 including Clearinghouse query requirements," the carrier should be able to confirm at least:

Pre-employment queries are being run for new hires. Every CDL driver hired after January 6, 2020 has to have a pre-employment full query in the Clearinghouse before being permitted to operate a CMV.

Annual limited queries are being run for current drivers. Once per year, every current driver gets a limited query. The carrier should have records of when each driver's annual was last run.

Positive results trigger removal from safety-sensitive functions. When a query returns a positive (driver has unresolved violations), the carrier is required to immediately remove the driver from safety-sensitive functions per Part 382.211. The carrier cannot dispatch a driver with unresolved Clearinghouse positives. Period.

Return-to-duty processes are documented. Drivers who tested positive can return to safety-sensitive duties only after completing a substance abuse professional (SAP) evaluation, follow-up testing, and the formal return-to-duty process.

When a carrier confirms all of this in writing as part of a load attestation, you've documented the broker-side reliance and the carrier has affirmed a specific compliance posture. That's the diligence record.

A concrete scenario

You tender a load to MC-1397205 / DOT-3471206. Carrier signs your safety attestation, which includes the line: "Our DOT-mandated controlled-substances and alcohol testing program is in compliance with 49 CFR Part 382, including pre-employment, random, post-accident, and FMCSA Drug & Alcohol Clearinghouse query requirements."

The load delivers cleanly. Six months later, a different load from the same carrier ends in a fatal wreck. The driver tested positive at the post-crash test. Subsequent investigation finds the driver had an unresolved positive in the Clearinghouse from a previous carrier that the *current* carrier had failed to query before hiring.

For the carrier, this is catastrophic. They were required to query under § 382.701 and did not. The federal violation is direct and unambiguous.

For the broker on the second load (the one that crashed), your defensive posture turns on whether your attestation flow was in place. If it was — if the carrier signed an attestation confirming Part 382 compliance, including Clearinghouse queries — then the carrier's representation was false, the carrier breached the broker-carrier agreement, and the diligence file shows the broker required and relied on the carrier's stated compliance.

For the broker on the *first* load (six months earlier — which didn't crash) the file is the same. The attestation was made, the load delivered cleanly, and the broker has no liability because there was no crash on their tender. But the file is there.

This is the legal architecture *Montgomery* requires. Cheap to build. Hard to argue against in front of a jury.

The "honest carrier" question

Carriers vary. Most are honest. Some have operational gaps they don't fully understand. A small number lie on attestations. The point of the attestation isn't to magic away the risk — it's to make the carrier's representation legally meaningful.

When an honest carrier confirms Part 382 compliance, you have an honest representation in your file. When a sloppy carrier confirms compliance they don't actually have, you have a *false* representation in your file — which, in litigation, is worse for them than the underlying noncompliance alone, because they've now also affirmatively misrepresented to you. When a fraudulent carrier confirms compliance they never intended to deliver, the misrepresentation is part of the fraud and your indemnification has firm contract footing.

In all three cases, the attestation does work. The honest case is the most common. The sloppy case is the case the attestation does the most legal work in. The fraudulent case is rare but exists.

The regulation, in plain English

49 CFR Part 382 is the FMCSA controlled substances and alcohol use and testing rule for commercial motor vehicle drivers. § 382.701 requires the Clearinghouse query before initial assignment to safety-sensitive functions and at least annually thereafter for current drivers. § 382.211 prohibits drivers from operating a CMV after a positive test or refusal until they've completed the return-to-duty process. The Clearinghouse itself is established under 49 CFR Part 382 Subpart G.

What this means at load-tender time: the broker isn't required to query the Clearinghouse — they can't. The broker *is* in a much better position when their diligence file shows they asked the carrier to confirm Part 382 compliance and the carrier did so in writing. The confirmation closes a specific safety-program gap that plaintiff's lawyers know to ask about.

How I document this

For every load tendered I include a Part 382 compliance line in the carrier attestation. Specifically:

"Our DOT-mandated controlled-substances and alcohol testing program is in compliance with 49 CFR Part 382, including pre-employment, random, post-accident, and FMCSA Drug & Alcohol Clearinghouse query requirements."

The carrier checks the box, signs the attestation, and the line is preserved with their signer name, title, timestamp, and IP. That goes into the same diligence file as the pre-trip attestation, the insurance verification, and the BASIC snapshot.

One line of attestation. Significant legal weight. The brokers who started doing this before *Montgomery* dropped today are several months ahead of everyone else. The brokers who start tomorrow are still in good shape. The brokers who don't are betting their files on a regulatory question the carrier was supposed to handle — and after today's ruling, that's a much riskier bet.

— Mason Lavallet

Founder, DOTScreener.com

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Sources

• [FMCSA Drug & Alcohol Clearinghouse — official site](https://clearinghouse.fmcsa.dot.gov/)
• [FMCSA Clearinghouse — Query Plans (FAQ)](https://clearinghouse.fmcsa.dot.gov/Resource/Index/Query-Plan)
• [49 CFR Part 382 — Controlled Substances and Alcohol Use and Testing](https://www.ecfr.gov/current/title-49/subtitle-B/chapter-III/subchapter-B/part-382)
• [49 CFR § 382.701 — Pre-employment and annual Clearinghouse queries](https://www.ecfr.gov/current/title-49/subtitle-B/chapter-III/subchapter-B/part-382/subpart-G/section-382.701)
• [FMCSA Clearinghouse FAQ — Queries, Consent, and Compliance](https://clearinghouse.fmcsa.dot.gov/FAQ/Topics/Queries-Consent-Requests)
• [Hanson Bridgett — Montgomery v. Caribe Transport II analysis](https://www.hansonbridgett.com/publication/260514_8509_supreme-court-faaaa)