Building a Defensible Breath Alcohol Testing Program

By Greg Mertens, Director of Training, Intoximeters

Breath alcohol testing plays a crucial role in ensuring workplace safety and compliance with federal regulations. Being able to develop a defensible breath alcohol testing program will help ensure not only that you are helping to keep the roadways, railways, airways, and waterways safe, but also that you will be able to defend any of your testing results if they are to be litigated.

Building a defensible breath alcohol testing program requires high-quality training, understanding of the instrument’s Quality Assurance Plan, error prevention, and strict adherence to well-developed procedures. If a test result does go to court, any errors (no matter how small) or inconsistencies in the testing program will be called into question.

Proper Training

The backbone of a high-quality breath alcohol testing program is proper training. The U.S. Department of Transportation (DOT) has established specific training requirements for breath alcohol technicians (BATs) under 49 CFR Part 40.213, which must be followed with strict adherence.

When building a BAT training program, the following items will help ensure students are fully trained to perform defensible breath alcohol tests.

• Thorough qualification training
  Qualification training for BATs (also known as Rules and Regulations) should take 6.5 hours for initial training and 3 hours for a refresher training (Source: DOT, Breath Alcohol Technician Training: DOT Model Course) or a “a course of instruction equivalent to the DOT Model Courses” (40.213(b)(1)). While some trainers may be tempted to rush through the procedural training, ensuring all students have a thorough understanding of the rules and regulations is vital to their ability to perform successful mock tests and reliable breath alcohol tests in the field.

• EBT instrument training
  BATs should be familiar with all of the features and functions available to them on their Evidential Breath Testing (EBT) devices. If there is a menu or screen that may appear on the instrument while performing testing on a donor, the student should be aware of it. Incomplete knowledge of the EBT being used can lead to testing errors resulting in fatal flaws and/or results that are successfully challenged in court.

• Performing adequate mock scenarios
  Proficiency demonstration requires completion of seven consecutive error-free mock tests (40.213(c)). There are, however, no specific requirements that define what scenarios should be covered in those mock tests. While it may be tempting to have your students perform seven negative and uneventful tests to save time, that will not adequately prepare them for the variety of testing scenarios they will face while performing their job duties. Incorporating seven unique mock tests will better prepare your students for a multitude of breath alcohol testing scenarios that they may encounter.

• Maintaining training records
  If you ever encounter a positive breath alcohol test result or get audited by a DOT Operating Agency, it is not uncommon that you will be asked to provide training records. BATs are required to keep documentation of their training records (40.213(g)). However, trainers may benefit from keeping a copy of their students’ training records as well. If a training is ever audited or challenged, it will benefit any trainer if they are able to provide proof of your students’ successful completion of both qualification training and proficiency demonstration.

• Periodic proficiency training
  While not required, performing periodic proficiency training is an action that can be taken to help ensure that BATs are able to regularly review the testing procedures. With most DOT Operating Agencies utilizing a 10% random alcohol testing rate, it is possible that BATs may benefit from additional practice to maintain their competence in breath alcohol testing. Additionally, because positive tests and obstacles occur even less frequently, having BATs practice positive testing scenarios on an annual or semi-annual basis is an effective method to help keep them prepared.

Quality Assurance Plan (QAP)

A Quality Assurance Plan (QAP) ensures the accuracy and reliability of your EBT. Per 40.233, QAPs for all EBTs must be submitted by the EBT manufacturer and approved by the National Highway Traffic Safety Administration (NHTSA). It must specify:

• Methods for performing external calibration checks.

• Acceptable calibration tolerances.

• Required intervals for calibration checks, considering frequency of use and environmental conditions.

Both EBT manufacturers and users have critical roles to play in the development and adherence to the QAP. EBT manufacturers must provide clear instructions for instrument use and care. EBT users are responsible for:

• Following the manufacturer’s instructions for care

• Using only NHTSA-approved calibration devices

• Removing instruments from service if they fail an external calibration check

• Maintain records of instrument inspections, maintenance, and calibrations

Calibration adjustments

During litigation, calibration and maintenance records of an EBT are often subpoenaed as part of the legal process. Because of this, it is of the utmost importance that instrument maintenance and calibration are performed properly. 49 CFR Part 40.233(c)(5) states:

“You must ensure that inspection, maintenance, and calibration of the EBT are performed by its manufacturer or a maintenance representative certified either by the manufacturer or by a state health agency or other appropriate state agency.”

As stated in the regulation, anyone performing calibration adjustments on an EBT must be trained and certified by a party with the authority to do so. Calibration adjustments performed by an individual who has not been trained properly and certified may be called into question during a legal proceeding.

Common breath alcohol testing errors

Preventing errors is crucial to maintaining a defensible program. While there are many things that can go wrong during the performance of a breath alcohol test, some errors occur more than others. Some of the more commonly reported testing errors include:

• Failure to review instructions on the ATF – The most common anecdotally reported finding of breath alcohol testing audits is the failure of the BAT to review the instructions on the back of the ATF with the donor. The BAT should ensure donors have an opportunity to review instructions. This can include the BAT offering to read the instructions to the donor if requested to do so.

• Incorrect documentation from service authorization – BATs need to be sure that the information provided to them on a service authorization for testing is copied properly onto the ATF. The information should be double-checked for accuracy immediately after it is copied down and checked again before the test has been completed.

• Using incorrect verbiage to describe calibrations – Being able to accurately describe the process of performing a calibration adjustment or accuracy check is necessary in order to defend the actions of a test performed in your program. Calibration checks (also commonly referred to as external calibration checks or accuracy checks) refer to the procedure that is used to verify that an EBT is measuring the amount of alcohol in the breath correctly. Referring to an accuracy check as a calibration may lead one to believe that the instrument needs to be calibrated, implying that any test results performed are not reliable.
  
  The term calibration or calibration adjustment should only be used to describe the procedure of resetting an instrument to a known standard.

• Providing excessive information to donors – When speaking to donors during the testing process, it is best to stick to DOT-mandated information without sharing personal opinions. BATs are only required to provide information and explanation regarding collecting a breath sample and completing the ATF to the donor. If an employee inquires as to the reason behind a part of the testing procedure, telling them “The DOT rules say that we have to do it this way,” is an acceptable answer.

• Unnecessary documentation – When completing ATFs, it is best to only use concise, declarative statements for your documentation. Anyone who has gone through medical or nursing school has probably heard the phrase “If it isn’t documented, it didn’t happen.” While that level of note taking may be appropriate for patient medical charts, it can often work against BATs during litigation. Because all information on an ATF is subject to scrutiny, any inaccurate or incorrect documentation, even if that level of documentation goes beyond what is required, can be used by an attorney as a part of their case.

• Rushing steps of the testing procedure – When performing a breath alcohol test, it is important to follow all steps properly to avoid skipping required parts of the testing process. As a BAT, it is important to not rush through the process of explaining the testing procedure to the donor. Being able to provide clear instruction will ensure greater understanding and fewer miscommunications. Additionally, it is important that the BAT take time to read and understand the direction on their EBT display to ensure that they are utilizing the instrument in the manner in which is expected to avoid any flaws in their testing.

• Handwriting printed results – If you have affixed a printout of your screening test result to the ATF, or the EBT has printed directly on the ATF, there is no need to also print the result on Step 3 of the form by hand. Because the result only needs to appear on either the printout or handwritten in Step 3, copying the results by hand, if already included on a properly attached print out or printed directly on the form, is creating an additional chance for error. Any discrepancy between the two could bring the validity of the test into question.

Procedures and best practices

A defensible breath alcohol testing program relies on well-documented and repeatable procedures. Strong breath alcohol testing programs incorporate similar components to ensure compliance with DOT regulations. Some important items to consider and include in your breath alcohol testing program are:

• Use of scripted statements – One way to help ensure BATs are providing proper instruction and explanation to their donors is to create and use scripted statements to use when explaining the testing process. Using scripted statements allows BATs to be sure that they are providing their instruction the same way for each test. Having scripted statements available to use can be particularly helpful when confronted when a high stress testing situation arises.

• Maintain a calibration logbook – Records in calibration logbooks should be treated as a legal document. Anyone completing an entry in the logbook should use clear, conscience documentation and have legible handwriting. An instrument’s logbook must be clearly written and easily accessible as these records are often subpoenaed for legal proceedings arbitrations.
  
  It is often a good practice to keep a copy of the instrument’s QAP with the logbook. This not only allows staff to refer to it if needed, but it also can be provided to an auditor to support correct calibration practices.

• Consistency of operation – Consistently repeatable testing processes lead to defensible test results. BATs should be trained to follow the same protocol for every test – using the same explanations at the appropriate step in the testing process. This includes ensuring that they are providing the donor the correct information and that no step is skipped. This consistency is a powerful tool in the toolbox of any BAT.

• Implement checklists – While many EBTs used today incorporate the steps of the testing procedure into the instrument software, it can still be a good idea to use paper checklists as part of the testing program. Checklists should contain information about what a BAT should do before, during, and after testing for documentation and compliance. Utilizing a physical checklist allows BATs to mark off each step as it is completed through the testing process. Keeping a physical copy of these completed checklists will allow for documentation that a valid test was conducted.

• Choose words carefully – From the time the donor enters the testing facility until the time that he or she leaves, BATs should avoid unnecessary commentary or using inflammatory language that could compromise test defensibility. If a BAT makes a comment that could potentially be interpreted as bias against the donor, a lawyer may introduce that information to call the BATs integrity into question during litigation.

A strong and defensible breath alcohol testing program is built on proper training, adherence to quality assurance standards, error prevention, and strict procedural consistency. By following these guidelines, organizations can ensure reliable test results while maintaining compliance with DOT regulations. Implementing these best practices will enhance the credibility and defensibility of breath alcohol testing in any professional setting.