When could Franklin police test a locomotive engineer for alcohol or drugs after a crossing crash?

Plain-English summary

After a fatal railroad crossing incident, Franklin's police chief asked whether officers could require a locomotive engineer to take a chemical test, how to handle an unfinished crash report, and whether officers could face federal charges. The 2013 opinion said federal railroad law preempted state post-accident toxicology rules where the federal regulation prohibited testing. It identified a narrow exception for state criminal laws imposing sanctions for reckless conduct that caused loss of life, injury, or property damage.

The AG also read constitutional search protections into any use of Louisiana's testing statute. Officers needed probable cause to believe the engineer was operating or controlling the locomotive while impaired before administering a test. If the engineer refused, the statute required a court order. The opinion said an accident report impeded despite officers' best efforts should be submitted with the information obtained, and later interviews could supplement it. The AG declined to predict federal charges against officers because that would depend on specific facts and the U.S. Department of Justice.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Local police investigating a crossing crash

The opinion distinguished two limits on testing. Federal railroad rules could preempt the state requirement; where state testing was permissible, probable cause was still necessary. A refusal meant the officer could not give the test without a court order under La. R.S. 32:661.2(D).

Railroad crews and operators

The AG quoted a federal regulation saying no test could be required for a collision with a highway vehicle at a rail crossing or an incident wholly attributable to a natural cause, vandalism, or trespass as determined on documented facts by the responding railroad representative. The opinion did not decide that every crash fell within those exclusions.

Officials preparing accident reports

When circumstances prevented completion despite best efforts, the AG said officers should submit the report with the information they had. The opinion observed that La. R.S. 32:398 did not bar later interviews or investigations to complete reports.

Common questions

Could officers test a locomotive engineer solely because a crossing crash occurred?

No. The AG said federal preemption limited the state testing rule in circumstances where federal regulations prohibited testing. It also required probable cause to believe the engineer was impaired before a chemical test under the state statute.

What if the engineer refused the chemical test?

The opinion said La. R.S. 32:661.2(D) barred administering it without a court order after refusal, even when officers had probable cause.

Did the earlier federal court injunction settle the issue?

No. The opinion recounted that a federal district court enjoined enforcement of the Louisiana statute, but the Fifth Circuit reversed because the supposed conflict and constitutional problem were hypothetical and unripe in that case.

Could the accident report remain unfinished?

The AG said officers prevented from completing it despite their best efforts should submit the information obtained under applicable law. Later interviews and investigation could be used to complete the report.

Did the AG decide whether officers would face federal charges?

No. It said that question depended on the facts of a specific incident and that the U.S. Department of Justice was the appropriate entity to decide whether to file federal charges.

Background and statutory framework

La. R.S. 32:661.2 addressed chemical tests of locomotive operators after certain rail-crossing collisions. The opinion quoted 49 C.F.R. § 219.201 on federal post-accident testing exclusions and explained that, as of May 6, 2013, the former express preemption wording in 49 C.F.R. § 219.13 had been removed while federal law retained preemptive effect under 49 U.S.C. § 20106. The criminal-law exception appeared in 49 C.F.R. § 219.17(c). The AG also discussed the Fourth Amendment, the Louisiana Constitution, and the Fifth Circuit's ripeness ruling in United Transportation Union, et al. v. Foster, et al.

Citations

• La. R.S. 32:661.2: locomotive-operator chemical testing and refusal procedure.
• La. R.S. 32:398: accident-report duty.
• 49 C.F.R. § 219.201: federal post-accident testing exclusions.
• 49 C.F.R. § 219.17(c): criminal-law exception discussed by the AG.
• 49 U.S.C. § 20106: federal railroad safety preemption.
• United Transportation Union, et al. v. Foster, et al., 205 F.3d 851: Fifth Circuit ripeness decision discussed in the opinion.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/13-0019

Original opinion text

August 9, 2013
OPINION 13-0019

15-A CONSTITUTIONAL LAW
16 CRIMINAL LAW- Crimes & Offenses 60 LAW OFFICERS- Authority and Jurisdiction

La. R.S. 32:398
La. R.S. 42:61
La. R.S. 32:661.2
La. R.S. 33:423
Honorable Sabria J. McGuire
La. Const. art. 1, § 15

Chief of Police
The Federal Railroad Safety Act preempts state laws in the area of
508 Second Street
post-accident toxicological testing, except in the limited
circumstance where the state law is a criminal law that imposes
Franklin, Louisiana 70538
sanctions for reckless conduct that leads to loss of life, injury, or
damage to property. In order for local police to require a post- accident toxicological test of a locomotive operator under La. R.S.
32:661.2, they must have probable cause to believe the locomotive operator was operating or in physical control of the locomotive engine while under the influence of alcohol or other illegal controlled substances. If the locomotive operator refuses to take the test, then local law enforcement must obtain a court order as required by La. R.S. 32:661.2 (D).
Dear Chief McGuire:

Our office received your request for an opinion on whether the Federal Railroad Safety Act (“FRSA”) and regulations promulgated therein, specifically 49 C.F.R. § 219.201, exempts operators of locomotives from the chemical testing set forth in La. R.S. 32:661.2. This request was precipitated by an accident involving a pedestrian and locomotive at the crossing guards on a city street of Franklin, Louisiana. You relayed the following facts concerning this accident. The investigation conducted by city police determined that the pedestrian committed suicide. During the investigation, detectives were denied access upon the locomotive and were not allowed to speak with either the conductor or the engineer of the locomotive. Per the advice of the attorney for the railroad, the engineer refused to exit the locomotive. After several hours of debate between local authorities and representatives from Union Pacific Railroad, Union Pacific Railroad Police, and Burlington Northern Santa Fe (“B.N.S.F”) Railway, the engineer was taken by local authorities to the city of Franklin police station. At the station, the engineer refused to take the chemical test for intoxication. The attorney for the railroad asserted that the engineer was exempt from chemical testing pursuant to 49 C.F.R. § 219.201 (B), and city police contacted a local assistant district attorney for advice on how to proceed. During this time, the engineer left the station and the chemical test was not performed. Because the engineer left the police station, local authorities were unable to complete the Uniform Railroad Grade Crossing Crash Supplement, which is a form filled out by local or state police as part of their duty to investigate accidents pursuant to La. R.S. 32:398.

In light of this incident, you ask the following questions:

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.
1) Does 49 C.F.R. § 219.201 (B) exempt operators of locomotives from the implied consent to chemical testing found in La. R.S. 32:661.2?

2) What is needed of local authorities to administer the chemical test in La. R.S.
32:661.2 to operators of locomotives during a crash investigation?

3) If the investigation is left incomplete, can the Uniform Railroad Grade Crossing Crash Supplement for the State of Louisiana remain incomplete as well?

4) If local authorities can utilize La. R.S. 32:661.2 to test operators of locomotives in the course of an investigation, can federal charges be filed against local authorities during the course of their official duties?

The Louisiana statute applicable to chemical testing of locomotive operators is La. R.S. 32:661.2, which provides in pertinent part:

A. (1) Any person who operates a locomotive engine upon the railroad tracks of this state shall be deemed to have given consent, subject to the provisions of R.S. 32:662, to a chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood and the presence of any abused or illegal controlled dangerous substance as set forth in R.S. 40:964 in his blood if he is involved in a collision at a railroad crossing at any roadway of this state alleged to have occurred when he was driving or in actual physical control of the locomotive engine while believed to be under the influence of an alcoholic beverage or any abused or illegal controlled dangerous substance as set forth in R.S. 40:964.

(2) The test or tests shall be administered at the direction of the law enforcement officer having reasonable grounds to believe the person to have been operating or in physical control of the locomotive engine while under the influence of either an alcoholic beverage or any abused or illegal controlled dangerous substance as set forth in R.S. 40:964. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered.

The federal statutes that govern post-accident toxicological testing are contained in the FRSA, specifically 49 C.F.R. § 219.201, which provides as follows:

(b) Exceptions. No test may be required in the case of a collision between railroad rolling stock and a motor vehicle or other highway conveyance at a rail/highway grade crossing. No test may be required in the case of an accident/incident the cause and severity of which are wholly attributable to a natural cause (e.g. flood, tornado, or other natural

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disaster) or to vandalism or trespass(s) as determined on the basis of objective and documented facts by the railroad representative responding to the scene.

(c) Good faith determinations:
(1)(i) The railroad representative responding to the scene of the accident must determine whether the accident/incident falls within the requirements of paragraph (a) of this section or is within the exception described in paragraph (b) of this section. It is the duty of the railroad representative to make reasonable inquiry into the facts as necessary to make such determinations. In making such inquiry, the railroad representatives must consider the need to obtain specimens as soon as practical in order to determine the presence or absence of impairing substances reasonably contemporaneous with the accident incident. The railroad representative satisfies the requirement of this section if, after making reasonable inquiry, the representative exercises good faith judgment in making the required determinations.

[Emphasis added.]

Louisiana Revised Statutes 32:661.2 was enacted in 1998, and was subsequently challenged in United Transportation Union, et al. v. Foster, et al.1 In that case, the plaintiffs filed a Motion for Summary Judgment seeking a permanent injunction enjoining defendants, Michael Foster, Governor of the State of Louisiana, and Richard Ieyoub, Attorney General, from enforcing La. R.S. 32:661.2. The plaintiffs argued that federal law preempted La. R.S. 32:661.2 because the Federal Railroad Administration (“FRA”) had completely subsumed the matter of alcohol and drug testing in the railroad industry. Plaintiffs also asserted that La. R.S. 32:661.2 violated the Fourth Amendment of the United States Constitution because it allowed a Louisiana law enforcement officer who lacked probable cause to administer post-collision toxicological testing to a railroad employee as part of a criminal investigation.2

The Eastern District Court’s holding was as follows:

[T]he Court finds that there are no material issues of fact in dispute, and that as a matter of law, the plaintiffs’ motion for summary judgment should be granted, enjoining the enforcement of Louisiana Senate Bill No. 26, enacted as La. R.S. 32:661.2, because the subject matter of that statute has been pre-empted by the Federal Railroad Safety Act and because it is

1
United Transportation Union, et al. v. Foster, et al., Not Reported in F. Supp. 2d, 1998 WL 603284 (E.D. La. 1998), which granted Plaintiffs’ Motion for preliminary injunction and United Transportation Union, et al. v. Foster, et al. Not Reported in F. Supp. 2d, 1998 WL 751646 (E.D. La. 1998), which granted Plaintiffs’ Motion of Summary Judgment.
2
th
United Transportation Union, et al. v. Foster, et al., 205 F.3d 851, 856 (5 Cir. 2000).

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Chief Sabria J. McGuire
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unconstitutional as it violates the Fourth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment.3

The Eastern District Court’s ruling was appealed, and the United States Court of Appeal, Fifth Circuit reversed, finding the conflict between La. R.S. 32:661.2 and federal law was hypothetical and not ripe for review.4

Thus, as discussed in United Transportation Union, et al. v. Foster, et al., our analysis of whether 49 C.F.R. § 219.201 exempts operators of locomotives from the implied consent to chemical testing found in La. R.S. 32:661.2 necessarily requires a consideration of both the doctrine of preemption and the rights granted under the Fourth Amendment.

Preemption
The Supremacy Clause in Article VI of the United States Constitution provides Congress with the power to preempt state law.5 Preemption occurs when Congress expresses a clear intent to preempt state law, when there is an actual conflict between state and federal law, and where compliance with both federal and state law is impossible.6 Prior to May 6, 2013, Part 219 of 49 C.F.R., which governs Control of Alcohol and Drug Use, contained a specific preemption provision in 49 C.F.R. § 219.13. which stated:

(a) Under section 20106 of title 49, United States Code, issuance of the regulations in this part preempts any State law, rule, regulation, order or standard covering the same subject matter, except a provision directed at a local hazard that is consistent with this part and that does not impose an undue burden on interstate commerce.

(b) FRA does not intend by issuance of the regulations in this part to preempt provisions of State criminal law that impose sanctions for reckless conduct that leads to actual loss of life, injury or damage to property, whether such provisions apply specifically to railroad employees or generally to the public at large.

In the course of writing this opinion the law has changed; effective May 6, 2013, section (a) of 49 C.F.R. § 219.13 has been deleted, and the language in section (b) has been moved to section (c) of 49 C.F.R. § 219.17. In deleting section (a) of 49 C.F.R. § 219.13, the FRA said it was “removing the preemption language . . . because part 219 has preemptive effect by operation of law under the FRSA See 49 U.S.C. 20106.7” The

3
See United Transportation Union, et al. v. Foster, et al., 1998 WL 751646 at 1. 4 See United Transportation Union, et al. v. Foster, et al. 205 F. 3d 851 at n. 14. 5 U.S. CONST. art. VI, cl. 2. 6 La. Pub. Serv. Comm’n v. F.C.C. et al., 476 U.S. 355, 369 (1986). 7 Control of Alcohol and Drug Use: Addition of Post-Accident Toxicological Testing for Non-Controlled Substances, 78 Fed. Reg. 14217 - 14225 (March 5, 2013) (to be codified at 49 C.F.R. § 219).

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deletion of 49 C.F.R. § 219.13 did not substantively change the law because the preemption language is contained in 49 U.S.C. § 20106.8

Here, the FRA has indicated that it intends to preempt state law with regard to post- accident toxicological testing, except in the limited instance where the law is a criminal law that imposes “sanctions for reckless conduct that leads to actual loss of life, injury or damage to property.”9 Thus, in the situation where 49 C.F.R. § 219.201 prohibits drug testing of a railroad employee, the testing requirement of La R.S. 32:661.2 is preempted, except in the limited circumstance where probable cause exists to believe the railroad employee has violated a criminal law which imposes sanctions for reckless conduct that leads to actual loss of life, injury or damage to property. We note that other State Attorneys General have examined this question and found that the FRA, through the FRSA, has preempted the area of post-accident toxicological testing except as provided above.10

Fourth Amendment
The United States Court of Appeal, Fifth Circuit, found the Fourth Amendment challenge in United Transportation Union, et al. v. Foster, et al. was not ripe for review because in order for the law to run afoul of the Fourth Amendment, the following events would necessarily have to occur:

1. “[A] train must be involved in a collision at a Louisiana railroad crossing.”11 2. “[A] law enforcement officer must have ‘reasonable grounds to believe the person to have been operating or in physical control of the locomotive engine while under the influence’ of alcohol or other illegal controlled substances.”12 3. “’[R]easonable grounds to believe’ would have to be interpreted to mean something other than ‘probable cause’”13 4. “[A] Louisiana officer would have to order such testing without actually having ‘probable cause.’”14

8
Section (a)(2) of this provision provides:
A state may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation or order related to railroad safety or security when the law, regulation, or order—
(A) is necessary to eliminate or reduce an essentially local or security hazard;
(B) is not incompatible with a law, regulation, or order of the United States Government; and
(C) does not unreasonably burden interstate commerce.
9
49 C.F.R. § 219.17(c).
10
See Ark. Op. Atty. Gen. No. 91-286; Kan. Atty. Gen. Op. No. 93-44; 81 Wis. Op. Atty. Gen. 78; and 1990 Ind. OAG No. 11. 11 See United Transportation Union, et al. v. Foster, et al., 205 F. 3d 851 at 858. 12 Id. 13 Id.

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The Fourth Amendment of the United States Constitution grants the following rights:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

These rights are also granted in the La. Const. art. I, § 15. In order to enforce La. R.S. 32:661.2 and avoid a violation of La. Const. art. I, § 15 and the Fourth Amendment of the United States Constitution, local authorities must have probable cause to believe the person operating or in physical control of the locomotive is under the influence of either an alcoholic beverage or an abused or illegal controlled dangerous substance before administering a chemical test, or test of blood, breath, urine, or other bodily substances.15 However, even if probable cause exists, if the operator of the locomotive refuses the test, then the test cannot be given without a court order under La. R.S. 32:661.2(D).16

Uniform Railroad Grade Crash Supplement
You indicate in your opinion request that the investigation was left incomplete and ask whether the Uniform Railroad Grade Crossing Crash Supplement may remain incomplete. If circumstances prevent local or state police from completing the accident report, notwithstanding their best efforts, then the report should be submitted with the information obtained in accordance with applicable law. We note that La. R.S. 32:398 does not prohibit the use of subsequent interviews and investigations to complete accident reports.

Federal Charges
Lastly, you ask if local authorities do utilize La. R.S. 32:661.2 to test locomotive operators in the course of an investigation, then can federal charges be filed against local authorities during the course of their official duties? As indicated above, certain

14
Id.
15
See United Transportation Union, et al. v. Foster et al., 205 F.3d 851 at n12 [citing Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602,617 (1989)] which said, “the taking of bodily fluids constitutes a search within the scope of the Fourth Amendment. See also Missouri v. McNeely, 133 S.Ct. 1552, 1557 (2013) which held “the natural metabolization of alcohol in the bloodstream does not present a per se exigency which justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk driving cases.” 16 La. R.S. 32:661.2 (D) provides that:
If a person refuses the request of the law enforcement officer to submit to a chemical test offered pursuant to the provisions of this Section, a test shall not be given without a court order. A written report shall be forwarded by the enforcement officer to the United States Department of Transportation. The report shall state that the officer had reasonable grounds to believe that the person had committed a crime pursuant to the provisions of R.S. 14:98 and that the person had refused to submit to the test upon the request of the peace officer and had been advised of the consequences of the refusal.

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portions of La. R.S. 32:661.2 are preempted by the FRSA and an officer must have probable cause to believe the person operating or in physical control of the locomotive is under the influence of either an alcoholic beverage or any abused or illegal controlled dangerous substance before administering a chemical test. Moreover, if the locomotive operator refuses to take the test, La. R.S. 32:661.2 (D) requires the officer obtain a court order to administer the test. As to the more general question of whether federal charges may be filed against local officers during the course of their official duties, our office is unable to answer this general question since the answer depends on the facts of the specific incident. Additionally, the United States Department of Justice is the appropriate entity to determine whether federal charges will be filed against a local officer.

We hope that this opinion has adequately addressed the legal issues you have raised. If our office can be of any further assistance, please do not hesitate to contact us.

With best regards,

JAMES D. “BUDDY” CALDWELL
ATTORNEY GENERAL

BY:_________
Emily G. Andrews
Assistant Attorney General

JDC: EGA

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SYLLABUS

OPINION 13-0019

La. R.S. 32:661.2
La. R.S. 42:61
La. Const. art. 1, § 15 La. R.S. 33:423

The Federal Railroad Safety Act preempts state laws in the area of post-accident toxicological testing, except in the limited circumstance where the state law is a criminal law that imposes sanctions for reckless conduct that leads to loss of life, injury, or damage to property. In order for local police to require a post-accident toxicological test of a locomotive operator under La. R.S. 32:661.2, they must have probable cause to believe the locomotive operator was operating or in physical control of the locomotive engine while under the influence of alcohol or other illegal controlled substances. If the locomotive operator refuses to take the test, then local law enforcement must obtain a court order as required by La. R.S. 32:661.2 (D).

Honorable Sabria J. McGuire
Chief of Police
508 Second Street
Franklin, Louisiana 70538

DATE ASSIGNED:

DATE RELEASED: August 9, 2013