What does 49 CFR 40.265 (What happens when an employee is unable to provide a sufficient amount of breath for an alcohol test?) require?

According to 49 CFR 40.265, when an employee cannot provide enough breath for a valid alcohol test, the process is handled as follows:

Steps for the Breath Alcohol Technician (BAT) or Screening Test Technician (STT):

* First failure: Instruct the driver to try again and explain how to do it properly.

* Refusal: If the driver refuses to try again, stop the test, write it on the "Remarks" line of the Alcohol Testing Form (ATF), and immediately notify your Designated Employer Representative (DER). This counts as a refusal to test.

* Second failure: If the second attempt fails, you may offer another opportunity *only* if you believe there is a strong likelihood it will succeed.

* Further options: If attempts fail, you must note it on the ATF's "Remarks" line and immediately notify the DER. If your Breathalyzer (EBT) can operate manually, you may try a manual test. If you are qualified to use a saliva ASD during a screening test, you may switch to a saliva ASD to finish the screening.

Steps for you as the Motor-Carrier Owner / Employer:

* When the technician informs you that the driver could not provide enough breath, you must direct the driver to get an evaluation within five days from a licensed physician. The physician must be acceptable to you and have expertise in the medical issues involved.

* You must provide the evaluating physician with specific information and instructions:

* That the driver was required to take a DOT breath alcohol test but could not provide enough breath.

* The consequences of refusing a DOT alcohol test under the appropriate agency regulations.

* That the physician must give you a signed statement of their conclusions based on their reasonable medical judgment.

What the Physician Must Determine:

The physician must conclude one of the following:

1. A medical condition (such as an ascertainable physiological condition like a respiratory dysfunction or a medically documented pre-existing psychological disorder—*not* unsupported "situational anxiety" or hyperventilation) has, or likely could have, prevented the driver from providing enough breath. If so, the physician provides a signed statement (without detailed medical information), and the test is cancelled.

2. There is no adequate basis to determine that a medical condition precluded the breath sample. If so, this constitutes a refusal to test.

The physician must send this written statement directly to your DER (not through a C/TPA intermediary). Once you receive the report, your DER must immediately inform the driver and take appropriate action based on DOT regulations.