In The News

Alcohol consumption rule is this: ‘24 hours from bottle to throttle’

Mr. Klepper, my twin brother Ron and I drive team on a dedicated route for a major carrier.  True, Ron had been drinking the night before we left on our run, but I was driving and Ron was in the sleeper when we were pulled over.  Ron was awake and the officer asked him to step out of the truck. 

That was when the officer smelled alcohol on Ron and made him do a field sobriety test and a breathalyzer test.  He passed the field sobriety test, but did blow 0.01 on the breathalyzer.  The officer arrested him for DWI in a commercial vehicle. 

How can Ron be arrested for DWI when he was not driving?  I did not receive any citation for anything, so why were we pulled over?

Don G., Pittsburg, Pa.

Occasionally, officers do not write a citation for the offense they observed that caused the initial stop after they discover a larger crime has occurred. Any stop by an officer must be for probable cause, which is the officer’s belief a crime has been committed.  The officer cannot just pull people over on a whim to see if they have committed a crime.  Without probable cause to pull you over, the arrest of Ron could be thrown out. 

Therefore, unless the officer had observed you violate a law (speeding, lane change, following too close, littering or any other traffic violation) then he should not pull you over.  Assuming the officer had probable cause to pull you over and the stop was legitimate, the officer is able to arrest Ron once he detected the odor of alcohol.

Driving While Intoxicated laws are very similar in all the states.  For example, in Arkansas, the Driving While Intoxicated statute says:

5-65-103. Unlawful acts.

(a)  It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.

(b)  It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person's breath or blood was eight-hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-65-204.

As you can see, the Arkansas Statute requires the driver to either be driving the vehicle, or in actual physical control of the vehicle (APC).  It also requires the defendant to have a blood alcohol level of 0.08 or more to be considered intoxicated. 

Keep in mind the state law is preempted by federal law because both you and your brother have CDLs and are held to a much higher standard than the normal civilian driver is. The Federal Motor Carrier Safety Regulations (FMCSR) address alcohol use by truck drivers in many ways and all of them are tougher than the state laws.

All CDL holders are subject to the FMCSRs which state:

§392.5 Alcohol prohibition.

(a) No driver shall—

(a)(1) Use alcohol, as defined in §382.107 of this subchapter, or be under the influence of alcohol, within 4 hours before going on duty or operating, or having physical control of, a commercial motor vehicle; or

(a)(2) Use alcohol, be under the influence of alcohol, or have any measured alcohol concentration or detected presence of alcohol, while on duty, or operating, or in physical control of a commercial motor vehicle; or

(a)(3) Be on duty or operate a commercial motor vehicle while the driver possesses wine of not less than one-half of one per centum of alcohol by volume, beer as defined in 26 U.S.C. 5052(a), of the Internal Revenue Code of 1954, and distilled spirits as defined in section 5002(a)(8), of such Code. However, this does not apply to possession of wine, beer, or distilled spirits which are:

(a)(3)(i) Manifested and transported as part of a shipment; or

(a)(3)(ii) Possessed or used by bus passengers.

(b) No motor carrier shall require or permit a driver to—

(b)(1) Violate any provision of paragraph (a) of this section; or

(b)(2) Be on duty or operate a commercial motor vehicle if, by the driver’s general appearance or conduct or by other substantiating evidence, the driver appears to have used alcohol within the preceding 4 hours.

(c) Any driver who is found to be in violation of the provisions of paragraph (a) or (b) of this section shall be placed out-of-service immediately for a period of 24 hours.

(c)(1) The 24-hour out-of-service period will commence upon issuance of an out-of-service order.

(c)(2) No driver shall violate the terms of an out-of-service order issued under this section.

(d) Any driver who is issued an out-of-service order under this section shall:

(d)(1) Report such issuance to his/her employer within 24 hours; and

(d)(2) Report such issuance to a state official, designated by the state which issued his/her driver’s license, within 30 days unless the driver chooses to request a review of the order. In this case, the driver shall report the order to the state official within 30 days of an affirmation of the order by either the division administrator or state director for the geographical area for the region or the administrator.

(e) Any driver who is subject to an out-of-service order under this section may petition for review of that order by submitting a petition for review in writing within 10 days of the issuance of the order to the division administrator or state director for the region in which the order was issued. The division administrator or state director may affirm or reverse the order. Any driver adversely affected by such order of the division administrator or state director may petition the administrator for review in accordance with 49 CFR 386.13.

After viewing all the FMCSRs and applying those laws to your facts, it seems that you are correct.  Ron should not be charged with DWI, but he should be put out of service for 24 hours for having a detectable amount of alcohol in his system while performing a safety sensitive function.  He is required to report this out of service to his boss and I would imagine he would lose his job.

Alcohol and CDLs do not work well together.  If you decide to take a drink, I think you should allow 24 hours from your last drink to the time you step on company property to go to work.  Any alcohol blemish on you MVR or your work history makes you a very bad choice for a trucking company to hire because of the insurance cost and the effect your alcohol history could have on the company DOT inspections.

Your rule of thumb should be 24 hours from bottle to throttle.

Jim C. Klepper is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers.  Interstate Trucker represents truck drivers throughout the 48 states on both moving and non-moving violations. Jim is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. 

Jim, a former prosecutor, is also a registered pharmacist, with considerable experience in alcohol and drug related cases.  He is a lawyer that has focused on transportation law and the trucking industry in particular. He works to answer your legal questions about trucking and life over-the-road and has his Commercial Drivers License. You can reach Jim at (800)-333-DRIVE (3748) or www.interstatetrucker.com and www.driverslegalplan.com.