Alcohol testing

Scope

The regulations require post-accident, random, reasonable suspicion, return-to-duty, and follow-up testing for drivers who are required to hold a commercial driver’s license (CDL).

Post-accident testing is required when the criteria for testing have been met in accordance with 382.303 when operating a commercial motor vehicle (CMV) requiring a CDL. In post-accident testing, the use of police alcohol tests may be used in lieu of a motor carrier test where police will make results available.

The minimum annual testing rate for random alcohol testing is 10 percent, meaning that the number of alcohol tests completed by the end of the calendar year must equal at least 10 percent of a company’s average number of drivers for the year.

Regulatory citations

• 49 CFR Part 382 — Controlled substances and alcohol use and testing
• 49 CFR Part 40 — Procedures for transportation workplace drug and alcohol testing programs

Key definitions

• Alcohol: The intoxicating agent in beverage alcohol, ethyl alcohol or other low molecular weight alcohols, including methyl or isopropyl alcohol.
• Alcohol confirmation test: A subsequent test using an evidential breath testing device (EBT), following a screening test with a result of 0.02 or greater.
• Alcohol screening test: An analytic procedure to determine whether an employee may have a prohibited concentration of alcohol in a breath or saliva specimen.
• Commercial motor vehicle (CMV): A motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle:
  • Has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or
  • Has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 or more pounds), whichever is greater; or
  • Is designed to transport 16 or more passengers, including the driver; or
  • Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act (49 U.S.C. 5103(b)) and which require the motor vehicle to be placarded under the Hazardous Materials Regulations (49 CFR part 172, subpart F).
• Driver: Any person who operates a CMV. This includes, but is not limited to:
  • Full time, regularly employed drivers;
  • Casual, intermittent or occasional drivers;
  • Leased drivers and independent owner-operator contractors.
• Safety-sensitive function: Drivers are considered to be performing a safety-sensitive function during any period in which they are actually performing, ready to perform, or immediately available to perform any safety-sensitive functions.
  Safety-sensitive functions shall include:
  • All time at an employer or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer;
  • All time inspecting equipment as required by 392.7 and 392.8 or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time;
  • All time spent at the driving controls of a commercial motor vehicle in operation;
  • All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth (a berth conforming to the requirements of 393.76 of this sub-chapter);
  • All time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded; and
  • All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.

Summary of requirements

When performing an alcohol test:

• A testing device approved by the National Highway Traffic Safety Administration (NHTSA) must be used. Evidential breath testing devices (EBTs) approved by NHTSA are placed on the “Conforming Products List of Evidential Breath Measurement Devices.”
• Non-evidential devices approved by NHTSA may be used for the screening test. These devices are listed on the “Conforming Products List of Alcohol Screening Devices.”

Procedures for administering the test are outlined in Part 40, beginning at 40.211. The procedure for using an alcohol screening device begins at 40.229.

Drivers who fail an alcohol test, or violate the prohibitions against using alcohol, must:

• Be removed from safety-sensitive functions;
• Be advised of resources available in resolving an alcohol misuse problem;
• Be evaluated by a substance abuse professional who will determine what assistance, the driver needs (e.g., treatment, education);
• Be evaluated again by a substance abuse professional to determine whether the driver followed the program;
• Pass a return-to-duty test before returning to duty; and
• Submit to at least six unannounced follow-up tests in the first 12 months following return to duty.

The employer must advise the driver of resources available in resolving an alcohol misuse problem. Alcohol testing does not have to be done in conjunction with a driver’s medical examination, although the medical examiner could order a non-DOT test for purposes of 391.41(b)(13).