Who decides when a DOT alcohol test is a refusal to test?

Use the following list of alcohol-testing situations (as specified in 49 CFR Part 40) to know whether your designated employer representative (DER) must make the judgment call or leave it to another party.

The following situations require the decision maker to:

• Evaluate the circumstances,
• Compare them against the regulations, and
• Then decide whether the event qualifies as refusal to test.

Alcohol tests don’t involve a specimen and laboratory result, so a Medical Review Officer (MRO) is not involved in the process.

All but one refusal-to-test scenario places the burden on the DER to make the decision. The DER must evaluate the circumstances when:

• The driver fails to appear for an alcohol test when directed to report.
• The testing personnel reports that the driver left the facility before:
  • The testing process was complete, or
  • Providing the required amount of saliva or breath.
• The driver fails to undergo a medical examination or evaluation as part of the insufficient breath procedures.
• The driver fails to sign the certification statement on Step 2 of the Alcohol Testing Form.
• The driver behaves in a confrontational manner that disrupts the alcohol testing process.

If the driver fails to provide a sufficient breath specimen (shy lung), an evaluating physician makes the final decision whether there was a medical reason for an insufficient amount of breath. If not, it’s a refusal.