This month we will review the procedure for an invalid screening test completed by a Screening Test Technician or Breath Alcohol Technician. Not every mistake made during a DOT alcohol test results in a cancelled test. The 49 CFR Part 40 distinguishes between problems that always require cancellation, problems that can be corrected, and procedural errors that do not have enough impact to invalidate the test. It is of utmost importance that a BAT and STT understand the differences and what to do in each scenario.

Under §40.267, certain problems are considered fatal flaws and cannot be fixed. When one of these occurs, the alcohol test must be cancelled and treated as though it never occurred. The BAT must notify the DER. Examples include certain problems involving the use of an expired or improperly functioning screening device, or other specified failures in the required testing procedure.

Under §40.271, the BAT or STT has a responsibility to try to successfully complete the alcohol test. If a problem that would cause cancellation is identified during or shortly after the testing process, the BAT should attempt to correct it promptly, if practicable. If the test is ultimately invalid and cannot be corrected, the BAT must tell the employee that the test is cancelled and document the reason on the Remarks line of the ATF. The collector would then immediately  transmit the result to the DER in a confidential manner. A cancelled alcohol test is treated as though the test never occurred. This is important: a cancelled test is not a negative result and does not establish a completed DOT alcohol test.

However, it is important to remember that not every mistake cancels a test, under §40.275, procedural errors that do not have a significant adverse effect on the employee’s right to a fair and accurate test do not automatically result in cancellation. For example, a minor administrative error, such as omitting an employee’s middle initial, does not by itself invalidate the test, but these errors should still be documented.

The Takeaway

When a problem occurs, don’t automatically assume the test is invalid.

Identify the problem →determine whether it is fatal or correctable → correct it when permitted → document what happened → cancel only when required.

Following the CFR Part 40 procedure protects the integrity of the test and ensures that an error does not unnecessarily turn a valid testing opportunity into a cancelled test.

Key References

• 49 CFR §40.267 — Problems that always cause an alcohol test to be cancelled.
• 49 CFR §40.269 — Problems that cause cancellation unless corrected.
• 49 CFR §40.271 — Correcting alcohol testing problems.
• 49 CFR §40.273 — Effect of a cancelled alcohol test.
• 49 CFR §40.275 — Procedural problems that do not result in cancellation.