Department of Public Safety

38-382.109. Preemption of State and local laws. (a) Except as provided in paragraph (b), 38-382 preempts any State or local law, rule, regulation, or order to the extent that: (1) Compliance with both the State or local requirement is not possible; or (2) Compliance with the Stat…

38-382.111. Other requirements imposed by employers. Except as expressly provided in 38-382, nothing in 38-382 shall be construed to affect the authority of employers, or the rights of drivers, with respect to the use of alcohol, or the use of controlled substances, including aut…

38-382.113. Requirement for notice. Before performing each alcohol or controlled substances test under 38-382, each employer shall notify a driver that the alcohol or controlled substances test is required by 38-382. No employer shall falsely represent that a test is administered…

38-382.115. Starting date for testing programs. (a) All domestic-domiciled employers must implement the requirements of 38-382 on the date the employer begins commercial motor vehicle operations. (b) All foreign-domiciled employers must implement the requirements of 38-382 on the…

38-382.117. Public interest exclusion. No employer shall use the services of a service agent who is subject to public interest exclusion in accordance with 49 CFR part 40, Subpart R. HISTORY: Added by State Register Volume 30, Issue No. 4, eff April 28, 2006.

38-382.119. Stand-down waiver provision (Company must file waiver with FMCSA.). (a) Employers are prohibited from standing employees down, except consistent with a waiver from the Federal Motor Carrier Safety Administration as required under 38-382.119. (b) An employer subject to…

38-382.121. Employee admission of alcohol and controlled substances use. (a) Employees who admit to alcohol misuse or controlled substances use are not subject to the referral, evaluation and treatment requirements of 38-382 and part 40, provided that: (1) The admission is in acc…

38-382.201. Alcohol concentration. No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. No employer having actual knowledge that a driver has an alcohol concentration of…

38-382.205. On-duty use. No driver shall use alcohol while performing safety-sensitive functions. No employer having actual knowledge that a driver is using alcohol while performing safety-sensitive functions shall permit the driver to perform or continue to perform safety-sensit…

38-382.207. Pre-duty use. No driver shall perform safety-sensitive functions within four hours after using alcohol. No employer having actual knowledge that a driver has used alcohol within four hours shall permit a driver to perform or continue to perform safety-sensitive functi…

38-382.209. Use following an accident. No driver required to take a post-accident alcohol test under Regulation 38-382.303 shall use alcohol for eight hours following the accident, or until he/she undergoes a post-accident alcohol test, whichever occurs first. HISTORY: Added by S…

38-382.211. Refusal to submit to a required alcohol or controlled substances test. No driver shall refuse to submit to a post-accident alcohol or controlled substances test required under 38-382.303, a random alcohol or controlled substances test required under 38-382.305, a reas…

38-382.213. Controlled substances use. (a) No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any controlled substance, except when the use is pursuant to the instructions of a licensed medical practition…

38-382.215. Controlled substances testing. No driver shall report for duty, remain on duty or perform a safety-sensitive function, if the driver tests positive or has adulterated or substituted a test specimen for controlled substances. No employer having actual knowledge that a …

38-382.301. Pre-employment testing. (a) Prior to the first time a driver performs safety-sensitive functions for an employer, the driver shall undergo testing for controlled substances as a condition prior to being used, unless the employer uses the exception in paragraph (b). No…

38-382.303. Post-accident testing. (a) As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, each employer shall test for alcohol for each of its surviving drivers: (1) Who was performing safety-sensitive funct…

38-382.305. Random testing. (a) Every employer shall comply with the requirements of 38-382. Every driver shall submit to random alcohol and controlled substance testing as required in 38-382. (b)(1) Except as provided in paragraphs (c) through (e), the minimum annual percentage …

38-382.307. Reasonable suspicion testing. (a) An employer shall require a driver to submit to an alcohol test when the employer has reasonable suspicion to believe that the driver has violated the prohibitions of subpart B of 38-382 concerning alcohol. The employer’s determinatio…

38-382.309. Return-to-duty testing. The requirements for return-to-duty testing must be performed in accordance with 49 CFR part 40. Subpart O. HISTORY: Added by State Register Volume 30, Issue No. 4, eff April 28, 2006.

38-382.311. Follow-up testing. The requirements for follow-up testing must be performed in accordance with 49 CFR part 40, Subpart O. HISTORY: Added by State Register Volume 30, Issue No. 4, eff April 28, 2006. SUBPART D Handling of Test Results, Records Retention, and Confidenti…

38-382.401. Retention of records. (a) General requirement. Each employer shall maintain records of its alcohol misuse and controlled substances use prevention programs as provided in 38-382. The records shall be maintained in a secure location with controlled access. (b) Period o…

38-382.403. Reporting of results in a management information system. (a) An employer shall prepare and maintain a summary of the results of its alcohol and controlled substances testing programs performed under 38-382 during the previous calendar year, when requested by the Secre…

38-382.405. Access to facilities and records. (a) Except as required by law or expressly authorized or required in 38-382, no employer shall release driver information that is contained in records required to be maintained under Regulation 38-382.401. (b) A driver is entitled, up…

38-382.407. Medical review officer notifications to the employer. Medical review officers shall report the results of controlled substances tests to employers in accordance with the requirements of part 40, Subpart G. HISTORY: Added by State Register Volume 30, Issue No. 4, eff A…

38-382.409. Medical review officer record retention for controlled substances. (a) A medical review officer or third party administrator shall maintain all dated records and notifications, identified by individual, for a minimum of five years for verified positive controlled subs…

38-382.411. Employer notifications. (a) An employer shall notify a driver of the results of a pre-employment controlled substances test conducted under 38-382, if the driver requests such results within 60 calendar days of being notified of the disposition of the employment appli…

38-382.413. Inquiries for alcohol and controlled substances information from previous employers. Employers shall request alcohol and controlled substances information from previous employers in accordance with the requirements of Section 40.25 of the Federal Motor Carrier Safety …

38-382.501. Removal from safety-sensitive function. (a) Except as provided in subpart F of 38-382, no driver shall perform safety-sensitive functions, including driving a commercial motor vehicle, if the driver has engaged in conduct prohibited by subpart B of 38-382 or an alcoho…

38-382.503. Required evaluation and testing. No driver who has engaged in conduct prohibited by subpart B of 38-382 shall perform safety- sensitive functions, including driving a commercial motor vehicle, unless the driver has met the requirements of part 40. subpart O. No employ…

38-382.505. Other alcohol-related conduct. (a) No driver tested under the provisions of subpart C of 38-382 who is found to have an alcohol concentration of 0.02 or greater but less than 0.04 shall perform or continue to perform safety-sensitive functions for an employer, includi…

38-382.507. Penalties. Any employer or driver who violates the requirements of 38-382 shall be subject to the civil and/or criminal penalty provisions of 49 U.S.C. 521(b). In addition, any employer or driver who violates the requirements of 49 CFR part 40 shall be subject to the …

38-382.601. Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances. 38-382.603. Training for supervisors. 38-382.605. Referral, evaluation, and treatment. SUBPART A General

38-382.603. Training for supervisors. Each employer shall ensure that all persons designated to supervise drivers receive at least 60 minutes of training on alcohol misuse and receive at least an additional 60 minutes of training on controlled substances use. The training will be…

38-382.605. Referral, evaluation, and treatment. The requirements for referral evaluation, and treatment must be performed in accordance with 49 CFR part 40, Sub-part O. HISTORY: Added by State Register Volume 30, Issue No. 4, eff April 28, 2006.

38-383. COMMERCIAL DRIVER’S LICENSE STANDARDS; REQUIREMENTS AND PENALTIES. Editor’s Note HISTORY: Added by State Register Volume 30, Issue No. 4, eff April 28, 2006. Table of Contents Subpart A: General 38-383.1. Purpose and scope. 38-383.3. Applicability. 38-383.5. Definitions. …

38-383.1. Purpose and scope. (a) The purpose of 38-382 is to help reduce or prevent truck and bus accidents, fatalities, and injuries by requiring drivers to have a single commercial motor vehicle driver’s license and by disqualifying drivers who operate commercial motor vehicles…

38-383.110. General requirement. All drivers of commercial motor vehicles shall have knowledge and skills necessary to operate a commercial motor vehicle safely as contained in this Subpart. A sample of the specific types of items which a State may wish to include in the knowledg…

38-383.111. Required knowledge. All commercial motor vehicle operators must have knowledge of the following general areas: (a) Safe operations regulations. Driver related elements of the regulations contained in 49 CFR parts 391, 392, 38, 395, 396, and 397, such as: Motor vehicle…

38-383.113. Required skills. (a) Basic vehicle control skills. All applicants for a CDL must possess and demonstrate basic motor vehicle control skills for each vehicle group which the driver operates or expects to operate. These skills should include the ability to start, to sto…

38-383.115. Requirements for double/triple trailers endorsement. In order to obtain a Double/Triple Trailers endorsement each applicant must have knowledge covering: (a) Procedures for assembly and hookup of the units; (b) Proper placement of heaviest trailer; (c) Handling and st…

38-383.117. Requirements for passenger endorsement. An applicant for the passenger endorsement must satisfy both of the following additional knowledge and skills test requirements. (a) Knowledge test. All applicants for the passenger endorsement must have knowledge covering at le…

38-383.119. Requirements for tank vehicle endorsement. In order to obtain a Tank Vehicle Endorsement, each applicant must have knowledge covering the following: (a) Causes, prevention, and effects of cargo surge on motor vehicle handling; (b) Proper braking procedures for the mot…

38-383.121. Requirements for hazardous materials endorsement. In order to obtain a Hazardous Material Endorsement each applicant must have such knowledge as is required of a driver of a hazardous materials laden vehicle, from information contained in 49 CFR parts 171, 172, 173, 1…

38-383.131. Test procedures. (a) Driver information manuals. Information on how to obtain a CDL and endorsements shall be included in manuals and made available by States to CDL applicants. All information provided to the applicant shall include the following: (1) Information on …

38-383.133. Testing methods. (a) All tests shall be constructed in such a way as to determine if the applicant possesses the required knowledge and skills contained in Subpart G of 38-382 for the type of motor vehicle or endorsement the applicant wishes to obtain. (b) States shal…

38-383.135. Minimum passing scores. (a) The driver applicant must correctly answer at least 80 percent of the questions on each knowledge test in order to achieve a passing score on such knowledge test. (b) To achieve a passing score on the skills test, the driver applicant must …

38-383.141. General. (a) Applicability date. Beginning on January 31, 2005, 38-383 applies to State agencies responsible for issuing hazardous materials endorsements for a CDL, and applicants for such endorsements. (b) Prohibition. A State may not issue, renew, upgrade, or transf…