Is 49 CFR 382.309 an acute or critical violation?

It is an acute violation on the FMCSA acute/critical list in 49 CFR Appendix B to Part 385. Acute means noncompliance is severe enough to require immediate corrective action.

Does 49 CFR 382.309 automatically fail a new-entrant audit?

No. It is not on the 16-item automatic-failure list in 49 CFR 385.321, but it still adds points against the relevant audit factor and can contribute to an inadequate rating.

§ 382.309 — acute

49 CFR 382.309 in a new-entrant safety audit

49 CFR 382.309 is an acute regulation on the FMCSA new-entrant audit list (49 CFR Appendix B to Part 385): Using a driver who has not undergone return-to-duty testing with a negative drug test result and/or an alcohol test with an alcohol concentration of less than 0.02 in accordance with 49 CFR 40.305.

What does this regulation mean?

This is an acute violation of 49 CFR 382.309: using a driver who has not undergone return-to-duty testing with a negative drug test result and/or an alcohol test with an alcohol concentration of less than 0.02 in accordance with 49 CFR 40.305. An acute regulation is one where noncompliance is severe enough to require immediate corrective action, regardless of a carrier's overall safety posture. A single documented occurrence counts against you.

How do I pass the audit on this point?

Keep the records that prove compliance current and complete before the audit, and be ready to show them for the period the auditor reviews. Verify the exact current requirement at ecfr.gov, because the regulations are amended over time.

Which audit factor is this scored under?

§ 382.309 is scored under the Driver factor (Parts 382, 383, and 391) of the new-entrant safety audit. Points for Driver come from acute and critical violations of Parts 382, 383, and 391. Several Driver-factor violations are on the 16-item automatic-failure list in 49 CFR 385.321, so a single occurrence can fail the audit on its own.

Common questions

Is 49 CFR 382.309 an acute or critical violation?: It is an acute violation on the FMCSA acute/critical list in 49 CFR Appendix B to Part 385. Acute means noncompliance is severe enough to require immediate corrective action.
Does 49 CFR 382.309 automatically fail a new-entrant audit?: No. It is not on the 16-item automatic-failure list in 49 CFR 385.321, but it still adds points against the relevant audit factor and can contribute to an inadequate rating.

Prep your own new-entrant audit

The CarrierReady Audit-Prep Kit gives you fillable templates mapped to all six factors — driver qualification files, a written maintenance program, a drug-and-alcohol testing policy, an accident register, and a document-by-document checklist.

See the kit

Primary sources

49 CFR Appendix B to Part 385 — verified as of 2026-07-04

CarrierReady is an independent audit-preparation tool — not legal advice, and not affiliated with, endorsed by, or connected to the FMCSA or any government agency; always verify against the official regulations at ecfr.gov.