Is 49 CFR 392.5(b)(2) 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 392.5(b)(2) 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.

§ 392.5(b)(2) — acute

49 CFR 392.5(b)(2) in a new-entrant safety audit

49 CFR 392.5(b)(2) is an acute regulation on the FMCSA new-entrant audit list (49 CFR Appendix B to Part 385): Requiring or permitting a driver who shows evidence of having consumed an intoxicating beverage within 4 hours to operate a motor vehicle.

What does this regulation mean?

This is an acute violation of 49 CFR 392.5(b)(2): requiring or permitting a driver who shows evidence of having consumed an intoxicating beverage within 4 hours to operate a motor vehicle. 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?

§ 392.5(b)(2) is scored under the Operational factor (Parts 392 and 395) of the new-entrant safety audit. Points for Operational come from acute and critical violations of Parts 392 and 395. Part 395 (hours of service) is the single largest source of critical regulations on the acute/critical list.

Common questions

Is 49 CFR 392.5(b)(2) 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 392.5(b)(2) 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.