Disqualification for positive test - Procedure - § 46.25.125

§ 46.25.125. Disqualification for positive test - Procedure.

Chapter 46.25. Uniform Commercial Driver's License Act

Current through 2012 Second Special Session

§ 46.25.125. Disqualification for positive test - Procedure

(1) When the department of licensing receives a report from a medical review officer, breath

alcohol technician, employer, contractor, or consortium that a driver has a verified positive drug

test or positive alcohol confirmation test, as part of the testing program conducted under 49 C.F.R.

40, the department shall disqualify the driver from driving a commercial motor vehicle under RCW

46.25.090(7) subject to a hearing as provided in this section. The department shall notify the

person in writing of the disqualification by first-class mail. The notice must explain the procedure

for the person to request a hearing.

(2) A person disqualified from driving a commercial motor vehicle for having a verified positive

drug test or positive alcohol confirmation test may request a hearing to challenge the

disqualification within twenty days from the date notice is given. If the request for a hearing is

mailed, it must be postmarked within twenty days after the department has given notice of the

disqualification.

(3) The hearing must be conducted in the county of the person's residence, except that the

department may conduct all or part of the hearing by telephone or other electronic means.

(4) For the purposes of this section, or for the purpose of a hearing de novo in an appeal to

superior court, the hearing must be limited to the following issues: (a) Whether the driver is the

person who is the subject of the report; (b) whether the motor carrier, employer, or consortium has

a program that is subject to the federal requirements under 49 C.F.R. 40; and (c) whether the

medical review officer or breath alcohol technician making the report accurately followed the

protocols established to verify or confirm the results, or if the driver refused a test, whether the

circumstances constitute the refusal of a test under 49 C.F.R. 40. Evidence may be presented to

demonstrate that the test results are a false positive. For the purpose of a hearing under this

section, a copy of a positive test result with a declaration by the tester or medical review officer or

breath alcohol technician stating the accuracy of the laboratory protocols followed to arrive at the

test result is prima facie evidence:

(i) Of a verified positive drug test or positive alcohol confirmation test result;

(ii) That the motor carrier, employer, or consortium has a program that is subject to the federal

requirements under 49 C.F.R. 40; and

(iii) That the medical review officer or breath alcohol technician making the report accurately

followed the protocols for testing established to verify or confirm the results.

After the hearing, the department shall order the disqualification of the person either be rescinded

or sustained.

(5) If the person does not request a hearing within the twenty-day time limit, or if the person fails to

appear at a hearing, the person has waived the right to a hearing and the department shall sustain

the disqualification.

(6) A decision by the department disqualifying a person from driving a commercial motor vehicle is

stayed and does not take effect while a formal hearing is pending under this section or during the

pendency of a subsequent appeal to superior court so long as there is no conviction for a moving

violation or no finding that the person has committed a traffic infraction that is a moving violation

and the department receives no further report of a verified positive drug test or positive alcohol

confirmation test during the pendency of the hearing and appeal. If the disqualification is sustained

after the hearing, the person who is disqualified may file a petition in the superior court of the

county of his or her residence to review the final order of disqualification by the department in the

manner provided in RCW 46.20.334.

(7) The department of licensing may adopt rules specifying further requirements for requesting and

conducting a hearing under this section.

(8) The department of licensing is not civilly liable for damage resulting from disqualifying a driver

based on a verified positive drug test or positive alcohol confirmation test result as required by this

section or for damage resulting from release of this information that occurs in the normal course of

business.