Fighting a DOT alcohol test? Something every airman fighting a DOT alcohol test should consider is whether the Evidentiary Breath Test (EBT) instrument was producing accurate results. If not, it may be possible to successfully challenge a positive, random alcohol test under 14 C.F.R. § 120. While we highly recommend that you obtain competent legal counsel that handles Part 120 and Part 40 drug and alcohol testing cases on a daily basis, you will certainly want to review all the information provided from the FAA through the Enforcement Investigative Report (EIR) in order to determine whether the FAA can satisfy certain regulatory requirements under 14 C.F.R. § 120 and 49 C.F.R. § 40.
Per 14 C.F.R. § 120.203(b), “[e]ach employer shall ensure that all alcohol testing conducted pursuant to this subpart complies with the procedures set forth in 49 CFR part 40. The provisions of 49 CFR part 40 that address alcohol testing are made applicable to employers by this subpart.” Oftentimes your legal counsel will review 49 C.F.R. § 40.233 to see whether the FAA can prove that the EBT used for your breath test underwent proper care in order to validate that test.
The title of 49 C.F.R. § 40.233 asks a particularly appropriate question for the purpose of determining how to analyze the validity of an EBT result: “[w]hat are the requirements for proper use and care of EBTs?” While this regulatory section contains multiple requirements for the FAA and testing facility to satisfy, one area, in particular, that must be paid attention to is the EBT’s Qualified Assurance Plan (QAP).
Think of the QAP as the master instructions for an EBT. The QAP is especially important because 49 C.F.R. § 40.233(a)(1) states that the QAP must be submitted for NHSTA approval before an Evidentiary Breath Test (EBT) can be used by the DOT. The QAP must “specify the methods used to perform external calibration checks on the EBT, the tolerances within which the EBT is regarded as being in proper calibration, and the intervals at which these checks must be performed.” Id. (emphasis added). As such, 49 C.F.R. § 40.233(b) states that the manufacturer of an EBT must include “instructions for its use and care consistent with the QAP.”
If a testing facility fails to comply with the requirements EBT’s QAP by not performing the external calibration checks of the EBT at the intervals the instructions specify then they could have a big problem because they could be in violation of 49 C.F.R. § 40.233(c)(1). Specifically, 49 C.F.R. §40.233(c)(1) states that the user of the EBT must “follow the manufacturer’s instructions…including performance of external calibration checks at the intervals the instructions specify.” Failure of the testing facility to properly maintain records or timely perform these accuracy checks could result in a positive EBT result being invalidated.
For example, the QAP for the Intoximeter RBT IV/Alco-Sensor IV states that “if an accuracy check has not occurred within the past 31 days, an accuracy check must be run prior to running a subject test.” Consequently, if you are found to have alcohol in your system during a breath test while using an Intoximeter RBT IV/Alco-Sensor IV, you will want to know when the last time the instrument was checked for accuracy. If it has been more than 31 days before your test, you might have an argument that the results should be invalidated because of the requirements of 49 C.F.R. §40.233(c)(1) and, by extension, 14 C.F.R. §120.203(b).
If you have received a positive, random breath test while performing a safety sensitive function, call the FAA defense attorneys at The Ison Law Firm at 855-FAA-1215 to discuss your legal rights and options. We are aviation attorneys. We only do aviation law! Nothing else!