DOT Drug and Alcohol Testing

Are you a certificated airman with the Federal Aviation Administration (FAA)? Do you also perform a safety-sensitive function as part of your employment with an employer regulated by the FAA? If so, you are likely required to test for drug abuse and alcohol misuse pursuant to the rules and regulations set forth by both the Department of Transportation (DOT) under 49 C.F.R. Part 40 and the FAA under 14 C.F.R. Part 120. The Ison Law Firm provides advice, counsel, and legal representation to clients who have failed a DOT drug or alcohol test. Safety-sensitive Employees and Types of Testing Under the applicable FAA and DOT regulations, the following positions are typically considered safety-sensitive functions: flight crewmember, flight attendant, flight instruction, aircraft dispatcher, aircraft maintenance and preventative maintenance, ground security coordinator, aviation screening, air traffic control, and operations control specialist. If you are employed in one of these safety-sensitive positions, pursuant to 14 C.F.R. § 120.109 you will be subject to the following types of testing for drug abuse and alcohol misuse:

  1.  pre-employment testing,
  2.  random testing,
  3.  post-accident testing,
  4.  reasonable suspicion/cause testing,
  5.  return-to-duty testing, and
  6.  follow-up testing

Of note, however, is that alcohol testing is optional at the employer’s discretion for pre-employment testing. Failing a DOT Drug or Alcohol Test As a safety-sensitive employee, the presence of prohibited drugs in your system or a blood/breath ethanol alcohol concentration above .04% or greater while on duty or being immediately available to perform duty safety-sensitive function will likely result in your “failing” that test. Additionally, a refusal to take a DOT drug or alcohol test carries with it the same consequences as having failed a DOT drug test, even though no specimen or breath samples were collected and/or analyzed. If you are alleged to have failed a DOT drug test, you will be contacted by your company’s Medical Review Officer (MRO) to discuss your failed drug test. What you say to the MRO can make or break your case. Keep in mind that anything you say to either your MRO or anyone at your company can be used against you if the FAA brings an Enforcement Action to revoke your airman and/or medical certificates due to a failed DOT drug or alcohol test. If you might have failed a DOT drug test as a safety-sensitive employee, call The Pilot Lawyers at The Ison Law Firm before speaking with anyone! The last thing you want to do is jeopardize any potential defenses you might have because you made an admission while responding to the MRO or someone at your company! Defenses to a Failed DOT Drug or Alcohol Test When defending airmen for failing a DOT drug or alcohol test, we often look for “fatal flaws” in the testing process, as outlined by the applicable DOT and FAA regulations. If a “fatal flaw” exists, the test will be canceled – even if you tested positive for a prohibited drug or alcohol. Other times, we may find that an airman has a legitimate medical explanation for the presence of a prohibited substance in his or her system, which led to a positive DOT drug test. If a test is canceled, no action will be taken against your airman or medical certificates. These are just a few examples of defenses that we may be able to employ in your case. There is a multitude of defenses that a safety-sensitive employee may have when responding to the allegations of a failed DOT drug or alcohol test. Each case is unique, and the availability of certain defenses to any one individual will vary depending on the facts or circumstances of the case. The effective application of a good defense can result in the cancellation of a DOT drug or alcohol test. If you allegedly failed a DOT drug or alcohol test, call the aviation attorneys at The Ison Law Firm for an in-depth review of your case to determine which defenses exist!