---
kind: "section"
citation: "49 C.F.R. § 40.265"
title: "49"
number: "40.265"
heading: "What happens when an employee is unable to provide a sufficient amount of breath for an alcohol test?"
url: "https://uscodex.org/cfr/49/40.265"
---

# §40.265. What happens when an employee is unable to provide a sufficient amount of breath for an alcohol test?

- (a) If an employee does not provide a sufficient amount of breath to permit a valid breath test, you must take the steps listed in this section.
- (b) As the BAT or STT, you must instruct the employee to attempt again to provide a sufficient amount of breath and about the proper way to do so.
  - (1) If the employee refuses to make the attempt, you must discontinue the test, note the fact on the “Remarks” line of the ATF, and immediately notify the DER. This is a refusal to test.
  - (2) If the employee again attempts and fails to provide a sufficient amount of breath, you may provide another opportunity to the employee to do so if you believe that there is a strong likelihood that it could result in providing a sufficient amount of breath.
  - (3) When the employee's attempts under [paragraph (b)(2)](#b-2) of this section have failed to produce a sufficient amount of breath, you must note the fact on the “Remarks” line of the ATF and immediately notify the DER.
  - (4) If you are using an EBT that has the capability of operating manually, you may attempt to conduct the test in manual mode.
  - (5) If you are qualified to use a saliva ASD and you are in the screening test stage, you may change to a saliva ASD only to complete the screening test.
- (c) As the employer, when the BAT or STT informs you that the employee has not provided a sufficient amount of breath, you must direct the employee to obtain, within five days, an evaluation from a licensed physician who is acceptable to you and who has expertise in the medical issues raised by the employee's failure to provide a sufficient specimen.
  - (1) You are required to provide the physician who will conduct the evaluation with the following information and instructions:
    - (i) That the employee was required to take a DOT breath alcohol test, but was unable to provide a sufficient amount of breath to complete the test;
    - (ii) The consequences of the appropriate DOT agency regulation for refusing to take the required alcohol test;
    - (iii) That the physician must provide you with a signed statement of his or her conclusions; and
    - (iv) That the physician, in his or her reasonable medical judgment, must base those conclusions on one of the following determinations:
      - (A) A medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of breath. The physician must not include in the signed statement detailed information on the employee's medical condition. In this case, the test is cancelled.
      - (B) There is not an adequate basis for determining that a medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of breath. This constitutes a refusal to test.
      - (C) For purposes of paragraphs [(c)(1)(iv)(A)](#c-1-iv-A) and [(B)](#c-1-iv-B) of this section, a medical condition includes an ascertainable physiological condition (e.g., a respiratory system dysfunction) or a medically documented pre-existing psychological disorder, but does not include unsupported assertions of “situational anxiety” or hyperventilation.
  - (2) As the physician making the evaluation, after making your determination, you must provide a written statement of your conclusions and the basis for them to the DER directly (and not through a C/TPA acting as an itermediary). You must not include in this statement detailed information on the employee's medical condition beyond what is necessary to explain your conclusion.
  - (3) Upon receipt of the report from the examining physician, as the DER you must immediately inform the employee and take appropriate action based upon your DOT agency regulations.

## Notes

### Authority

Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 54101 et seq.

### Source

Source: 65 FR 79526, Dec. 19, 2000, unless otherwise noted.