Part 382 requires every employer of CDL drivers to run six categories of testing — pre-employment, post-accident, random, reasonable suspicion, return-to-duty and follow-up — and to query the FMCSA Drug and Alcohol Clearinghouse before hiring and at least annually thereafter. The codified minimum random rates in 49 CFR 382.305(b) are 50 percent of average driver positions for controlled substances and 10 percent for alcohol, and those remain the rates in effect for 2026. Records of positive results, refusals and referrals are kept five years under 382.401(b)(1).
Part 382 requires every employer of CDL drivers to run six categories of drug and alcohol testing and to check the FMCSA Drug and Alcohol Clearinghouse before hiring and at least once every 12 months afterward. It also sets the conduct rules — a 0.04 alcohol concentration limit, a four-hour pre-duty window, and an obligation to pull a driver out of safety-sensitive work the moment a violation is known.
The testing procedures are not in Part 382. They are in 49 CFR Part 40, which governs collection, laboratory analysis, MRO review and the return-to-duty process for every DOT mode. Part 382 tells you who to test, when, and what to do with the answer.
Who does Part 382 apply to, and who is exempt?
Section 382.103(a) reaches every employer and person who operates a commercial motor vehicle in commerce in the United States and is subject to the CDL requirements — including Canadian and Mexican operations in the US. If you are self-employed, 382.103(b) makes you comply as both employer and driver, and requires you to implement a random testing program with a selection pool containing at least two covered employees.
The exceptions in 382.103(d) are narrow:
- Employers required to comply only with 49 CFR Part 655 (FTA transit testing).
- Active-duty military, reserve and National Guard personnel, and the Coast Guard.
- At a state’s discretion, certain farm vehicle operators — farmer-controlled, transporting agricultural products, machinery or supplies, operating within 150 miles of the farm — and firefighters or emergency responders operating vehicles with audible and visual signals.
- Operators of a “covered farm vehicle” as defined in 49 CFR 390.5.
Note what is not an exception: fleet size. One driver with a CDL puts you inside Part 382, with a random pool and a Clearinghouse registration.
Two definitions in 382.107 do a lot of work. A safety-sensitive function is “all time from the time a driver begins to work or is required to be in readiness to work until the time he/she is relieved from work and all responsibility for performing work” — it is not just driving time. And actual knowledge means knowledge based on your direct observation, information from a previous employer, a traffic citation for driving a CMV under the influence, or the employee’s own admission. Actual knowledge triggers immediate removal and a Clearinghouse report, with no test involved.
What conduct does Part 382 actually prohibit?
| Prohibition | Citation | The rule in plain terms |
|---|---|---|
| Alcohol concentration | 382.201 | No driver may report for or remain on duty performing safety-sensitive functions with an alcohol concentration of 0.04 or greater; no employer with knowledge may permit it |
| On-duty use | 382.205 | No alcohol use while performing safety-sensitive functions |
| Pre-duty use | 382.207 | No safety-sensitive functions within four hours after using alcohol |
| Use following an accident | 382.209 | No alcohol for eight hours after an accident requiring a post-accident test, or until the test is taken, whichever is first |
| Refusal to submit | 382.211 | A refusal is treated as a violation with the same consequences as a positive result |
| Controlled substances | 382.213 | No safety-sensitive functions while using a controlled substance, except under a prescription from a practitioner who has advised the driver it does not adversely affect safe operation |
A 0.02 to 0.039 result is not a violation of 382.201. It is still consequential: 49 CFR 382.505 removes the driver from safety-sensitive functions “until the start of the driver’s next regularly scheduled duty period, but not less than 24 hours following administration of the test,” and bars you from taking further action against the driver on the basis of that result alone.
What are the six required tests, and when is each one due?
| Test | Citation | Trigger | Deadline |
|---|---|---|---|
| Pre-employment | 382.301(a) | Before the driver first performs safety-sensitive functions | Verified negative from the MRO required before the driver works |
| Post-accident | 382.303(a)–(b) | Fatality; or bodily injury with off-site treatment or a tow-away, plus a citation | Alcohol: cease after 8 hours. Drugs: cease after 32 hours |
| Random | 382.305(b) | Selected by a scientifically valid method | 50% of average driver positions (drugs), 10% (alcohol), annually |
| Reasonable suspicion | 382.307 | Contemporaneous observation by a supervisor trained under 382.603 | Alcohol: document if not done in 2 hours, cease after 8 hours |
| Return-to-duty | 382.309 | After a violation, following SAP evaluation | Per 49 CFR Part 40, Subpart O |
| Follow-up | 382.311 | After return to duty | At least 6 unannounced tests in the first 12 months, per 40.307 |
Pre-employment
Section 382.301(a) requires a controlled substances test with a verified negative MRO result before a driver performs safety-sensitive functions for you. The exception at 382.301(b) is real but tightly conditioned: the driver must have participated in a compliant DOT testing program within the previous 30 days and either been tested within the past six months or been in a random pool for the previous 12 months, with no prior employer holding records of a violation in the previous six months. Section 382.301(c) lists what you must obtain and document to use it. Pre-employment alcohol testing under 382.301(d) is optional, but if you do it you must do it for all safety-sensitive applicants, after a conditional offer, with a result below 0.04.
Post-accident
The accident criteria table in 382.303 works on two axes: what happened, and whether the driver was cited.
- Human fatality — test for alcohol and controlled substances regardless of citation.
- Bodily injury requiring immediate medical treatment away from the scene — test only if the driver receives a citation for a moving violation arising from the accident.
- Disabling damage to any vehicle requiring tow-away — same citation condition.
The citation window is eight hours for alcohol and thirty-two hours for controlled substances. Under 382.303(d), if you cannot administer the alcohol test within two hours you must prepare and keep a record of why; after eight hours you stop trying and document that. Same structure for drugs at 32 hours. And 382.303 makes the driver responsible for remaining readily available — a driver who disappears may be deemed to have refused. Necessary medical attention always comes first.
Random
Section 382.305(b)(1)–(2) fixes the codified minimums at 10 percent of the average number of driver positions for alcohol and 50 percent for controlled substances. Those are the rates in effect for calendar year 2026. The Administrator adjusts them annually against reported data: for controlled substances the rate may drop from 50 to 25 percent only if the industry positive rate stays below 1.0 percent for two consecutive years, and it returns to 50 percent when the positive rate reaches 1.0 percent or higher. Because this is a moving figure, confirm the published rate each January rather than assuming.
Two operational requirements get missed. Section 382.305 requires that the dates for administering random tests be spread reasonably throughout the calendar year — running your whole 50 percent in December is a violation even if the arithmetic works. And random alcohol tests may only be given “while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions.”
Reasonable suspicion
The observations must be made by a supervisor or company official trained under 382.603. A written record of the observations must be made and signed by that supervisor “within 24 hours of the observed behavior or before the results of the alcohol or controlled substances tests are released, whichever is earlier.” The same 2-hour documentation and 8-hour cutoff rules apply to the alcohol test.
Return-to-duty and follow-up
Both defer to 49 CFR Part 40, Subpart O. The SAP writes a follow-up plan directing at least six unannounced tests in the first 12 months of safety-sensitive duty after return, and may require further tests during the following 48 months — a 60-month maximum (49 CFR 40.307). You schedule the individual dates, not the SAP, and the obligation follows the driver to a new employer.
What are my Clearinghouse obligations?
The Drug and Alcohol Clearinghouse duties in Subpart G are where most small-carrier findings now come from, because they are continuous rather than event-driven.
Query before you hire. A pre-employment full query under 382.701(a), which requires the driver’s specific written consent and returns detailed violation information.
Query at least annually. Section 382.701(b) requires a query at least once every 12 months for every driver you employ. This may be a limited query made with the driver’s general consent, which tells you only whether information exists. If it does, you must conduct a full query within 24 hours, and the driver may not perform safety-sensitive functions until you have.
Report violations within three business days. Under 382.705, employers report by the close of the third business day following the date they obtained the information — alcohol confirmation tests of 0.04 or higher, refusals, negative return-to-duty results, completion of follow-up testing, and actual knowledge of on-duty, pre-duty or post-accident alcohol use and controlled substance use. Reports of actual-knowledge violations must include supporting evidence and proof the driver received the documentation. MROs report verified positive, adulterated and substituted results within two business days; SAPs report by the close of business the following day.
Keep the query records three years. Section 382.701(d) requires you to retain for three years a record of each query and all information received in response. Since January 6, 2023, maintaining a valid Clearinghouse registration satisfies that requirement, because the queries are recorded in the system itself.
Five years, not until you are clean. Section 382.719 removes violation information only when all four conditions are met: the SAP has reported, the employer has reported a negative return-to-duty test, the driver has completed the follow-up testing plan, and five years have passed since the violation determination.
The downgrade is now automatic. Since November 18, 2024, when FMCSA notifies a state that a CDL or CLP holder is prohibited from operating a CMV under 382.501(a), the state must initiate a downgrade and record it on the CDLIS driver record within 60 days (49 CFR 383.73(q)). Practically, a driver in prohibited status loses the license, not just the job — which means it now shows up on the annual MVR you already pull under Part 391.
How long do I keep drug and alcohol records?
Section 382.401(b) sets four tiers:
| Retention | Records |
|---|---|
| 5 years | Alcohol test results of 0.02 or greater; verified positive controlled substances results; refusals to test; driver evaluations and referrals; EBT calibration documentation; records related to the administration of the testing program; the annual calendar year summary |
| 2 years | Records related to the alcohol and controlled substances collection process, other than EBT calibration |
| 1 year | Negative and cancelled controlled substances results, and MRO reversals of cancelled results; alcohol results of less than 0.02 |
| While performing + 2 years | Education and training records for breath alcohol technicians, screening test technicians, supervisors and drivers |
Note that the retention periods attach to record type, not to employment. A five-year positive result stays five years whether or not the driver is still with you — which is why terminated-driver records are the first thing an investigator asks for.
What auditors actually check
- Clearinghouse registration and query history. A pre-employment full query with no matching consent record, or a gap of more than 12 months between annual queries, is a straightforward finding.
- Pre-employment result before the first dispatch. Investigators compare the MRO verification date to the first day of driving. “Negative, but two days late” is still using a driver before a negative result.
- Random pool arithmetic and spread. Expect a request for the selection lists by quarter. They will check both the rate and whether the selections were spread through the year.
- The 382.601 policy and signed receipts. Section 382.601 requires you to distribute educational materials explaining the requirements and your own policies and procedures, covering the designated contact, who is covered, prohibited conduct, testing circumstances, refusal consequences and Clearinghouse reporting — and to obtain a signed certification from each driver that they received a copy. The signed receipts are the audit artefact.
- Supervisor training certificates. 120 minutes total under 382.603, evidenced, for anyone who has ever ordered a reasonable suspicion test.
- Post-accident documentation. Not just the results — the records explaining why a test was not administered within the 2, 8 or 32-hour windows.
- Removal after a violation. Under 382.501, a driver who has violated Subpart B may not perform safety-sensitive functions. Dispatch records showing driving after a positive result are the most serious finding in this part.
If you want a broader picture of what a safety investigation covers, our DOT audit preparation guide walks the sequence, and the audit readiness quiz is a quick self-assessment.
Most common Part 382 violations
- Using a driver before receiving a pre-employment negative result (382.301(a)) — usually a scheduling shortcut during a hiring crunch.
- Failing to run the annual Clearinghouse query (382.701(b)) — the yearly cadence slips, particularly for drivers hired mid-year.
- Failing to implement a random testing program or missing the annual rate (382.305).
- Failing to conduct post-accident testing when the criteria in 382.303 were met, or failing to document why the test could not be done in time.
- No supervisor trained to the 382.603 standard, which invalidates the basis for any reasonable suspicion test.
- Permitting a driver with actual knowledge of prohibited use to continue (382.201, 382.205, 382.501) — the highest-severity finding in the part.
- Failing to report a violation to the Clearinghouse within three business days (382.705).
Where Part 382 sits in the wider rules
Part 382 tells you who to test; Part 40 tells the collector, the lab, the MRO and the SAP how. Part 383 defines the CDL that makes a driver subject to Part 382 in the first place, and now carries the prohibited-status downgrade at 383.73(q). And the pre-employment investigation you run under 391.23 uses the Clearinghouse for the drug and alcohol portion of a driver’s safety performance history — the two parts are one workflow in practice, even though they are two files.
For the surrounding programme, see the DOT compliance guide and the full 49 CFR reference library. Fleetive’s compliance and safety module tracks query dates, random selection cycles and testing records against the deadlines above.
This is a plain-English summary of 49 CFR Part 382, not legal advice. Testing rates and rules change; verify against the current text at Cornell’s Legal Information Institute or eCFR, and confirm the current-year random testing rate with DOT, before relying on any figure here.
Note: This is a plain-English summary of 49 CFR Part 382, current as of the date above, and is general information rather than legal advice. The regulation itself is controlling — read it on the eCFR and confirm current requirements with the FMCSA.