Alcohol and OTR

[wanderingson]

As for the reg you quoted, and I see you posted it twice just SO that I could quote it.... you are a smart one.... ALL of part (a) relates to the same thing. One cannot DRIVE a CMV, or be ON DUTY, unless they meet the requirements of the reg, which is the 4 hour rule and no more than .02 BAC. One cannot be ON DUTY or OPERATE a CMV while the driver "posseses" alcohol.

Please show me the part of that reg that says that a driver who is OFF DUTY, cannot "possess" alcohol when NEITHER he (nor anyone else) is "operating" the CMV in interstate commerce.

Well Hobo, YOU said earlier that the regs called it "carrying" alcohol, as opposed to "possession" of alcohol as I had stated. NOW you are calling it "possession" ??

Fdmax cited the right statute. Yes, I know what a statute is too.

Believe me, if your truck was searched during a routine inspection, whether or not you are on or off duty, if you have alcohol in the cab ( open or closed containers) you will most likely be ticketed. (or worse) I think the regs are pretty clear on that.

[fdmax]

GOLFHOBO QUOTE

How about this.... How about YOU try to string a few words and thoughts together into a sentence or two.... called a paragraph.... and I'll respond to a coherent "thought" if you can find one.



You like to say alot of words but you only like to read a few words, the whole sentence takes much of your time to respond,
oh yeah you will read back over, but thats later.


The problem is you only what to read or understand a part of what you see, you don't understand to see more parts of the words structure in the sentence.


It's not just

until the time he/she is relieved from work

It means:
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.


and the main body of this sentence is

required to be in readiness to work until the time he/she is relieved from work and all responsibility

And if your in "physical control"
you have all the responsibility


Comprehensive Arizona DUI Information
Arizona DUI Law:


28-1381. Driving or actual physical control while under the influence; trial by jury; presumptions; admissible evidence; sentencing; classification.


A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.

Actual Physical Control
You don't have to drive in Arizona to be charged with DUI. The law says that if you are in actual physical control of a motor vehicle in Arizona, you can be found guilty of drunk driving.

What is Actual Physical Control?
Actual physical control is found in cases where the person is, for all intents and purposes, in control of the vehicle and has a present ability to move the vehicle.

http://www.duiarizona.com/apc.htm

[golfhobo]

fdmax said:

The problem is you only what to read or understand a part of what you see, you don't understand to see more parts of the words structure in the sentence.

Okay, if my foreign language interpreter program is working, I believe you are saying that I want to take things OUT of context. That is absolutely the OPPOSITE of my position. I am trying to get others to consider all parts of a reg (like subpara 4) IN THE WHOLE CONTEXT of the paragraph, and subordinate to the topic sentence, which clearly delineates between when you are ON duty or ROD (off duty.)

and the main body of this sentence is

required to be in readiness to work until the time he/she is relieved from work and all responsibility

And if your in "physical control"
you have all the responsibility

So, let's look at the logical implications of what you are saying. You say that while in the sleeper, parked in a truckstop, you are still in physical control. And if so, you are still "responsible." So according to the topic sentence of both the "Safety Sensitive Functions" AND the "On Duty" regs (as they are worded almost identically) you are STILL performing safety sensitive functions and therefore, still on duty.

Let's see how that works for you:

You pull into a truckstop at 9 p.m. at the end of your 14 hour day, and decide to eat and take your 10 hours in the sleeper. Ah.... but you are still in physical control and therefore still under responsibility. So, you cannot BE ROD or go off duty.

7 a.m. rolls around and you want to start driving. Sorry.... you have been performing S/S functions all night and you still need a break before you can drive. In fact, you will sit there burning up your 70 until you need a 34 hr restart. Ah.... but if you spend part or all of THAT in your sleeper, you are still performing S/S functions and on duty. When will you get to move your truck?

What is Actual Physical Control?
Actual physical control is found in cases where the person is, for all intents and purposes, in control of the vehicle and has a present ability to move the vehicle.

Now, I expect you will tell me that subpara (4) clearly "exempts" you from this responsibility while in the sleeper. Then, how does it not exempt you from physical control? And if it does, then not only will you probably NOT fit the description of physical control found in the Arizona (or any other state's) DUI statutes, but you will also not fit the conditions in paragraph (a)(1),(2) and (3) of 392.5, the alcohol prohibition reg.

[got mud?]

regs don't impose sentences or fines. judges and jury's do. and that is exactly why we have lawyers, to argue the spirits and to interpret the law and regs. very few laws are simply black and white. they were never intended to be. they are written with a certain vagueness to cover as many situations as possible. one thing most people fail to realize is the regs are not there to tell you what you CAN do, only what you CAN'T do. The regs do not have to give you permission to do something.

[Rev.Vassago]

This has officially become the stupidest topic ever to be discussed on CAD. Everyone who reads it is now dumber for having done so.

[Windwalker]

This has officially become the stupidest topic ever to be discussed on CAD. Everyone who reads it is now dumber for having done so.

The simple fact is that the two regs were written by two different entities. While the Fed Regs define "off duty" in one manner, the state and local regs define "in control of the vehicle" in another manner.

You can be sleeping in the back seat of your car with the engine running to keep warm, but with the keys in the ignition, you are considered to be "in control of the vehicle". It does not matter if it is a POV or a CMV, it's enforced the same way. I watched a Canadian driver get cited for DUI while drinking in the sleeper with the truck running. He might have been ok, but he was throwing the empties out the window, and a county-mounty saw it while taking a cruise through the lot.

[golfhobo]

Windwalker: In the first line of the second paragraph of your signature, the sixth word should be knows (with an "s.")

How do I know that?

[golfhobo]

This has officially become the stupidest topic ever to be discussed on CAD. Everyone who reads it is now dumber for having done so.

And, since you had a head start on the rest of us, you must be a total idiot by now!

J/K Rev!

[Rev.Vassago]

And, since you had a head start on the rest of us, you must be a total idiot by now!

I'm forced into reading it. Every time I do, my eyes just glaze over, and I wonder why on earth this is even being argued.

[golfhobo]

one thing most people fail to realize is the regs are not there to tell you what you CAN do, only what you CAN'T do. The regs do not have to give you permission to do something.

Eggsactly, Mud. In fact, the DEFINITION of "regulation" is to LIMIT the functions or actions of a person or thing (not to enumerate them.)

I can't remember where I found it in the regs, although I quoted it at some point, but the FMCSA admits that alcohol is a "legal substance" and therefore they are LIMITED as to how much they can LIMIT its use by drivers.

To my understanding and interpretation, they seem to have gone out of their way to protect the constitutional rights of drivers, and to "limit" their limitations to the ON DUTY period, and the 4 hours just prior.

Why? Because their mission statement shows they are dedicated to protecting the motoring public by ensuring that drivers will not OPERATE a CMV on a public highway or PVA while ill, fatigued, or under the influence.

They DO clearly state that you cannot operate or be forced to operate a CMV when you are ILL (if it could affect your abilities.) They cannot FORCE you to sleep, but they DO clearly regulate your HOS so that you have an opportunity to sleep or at least rest. And they cannot infringe your constitutional rights to consume a legal substance when you are off duty, so they DO clearly (or not) set limits of time and BAC levels that you must adhere to before OPERATING a CMV, and to further avoid temptation, they "regulate" that you cannot possess or carry alcohol that is not manifested while operating a CMV..... UNLESS you are ROD.

But, parked in a truckstop with brakes popped, you are NOT "operating" a CMV (nor "responsible" for it unless H/M laden.) If you WERE.... you'd still be ON DUTY and performing S/S functions. Even Trooper Dial said that, "the only way to log line 1 is to be PARKED."

[Rev.Vassago]

But, parked in a truckstop with brakes popped, you are NOT "operating" a CMV (nor "responsible" for it unless H/M laden.) If you WERE.... you'd still be ON DUTY and performing S/S functions.

So if you have hazmat, you can't log sleeper berth? Interesting....

Even Trooper Dial said that, "the only way to log line 1 is to be PARKED."

If Trooper Dial said that, he was clearly wrong.

[golfhobo]

Well Hobo, YOU said earlier that the regs called it "carrying" alcohol, as opposed to "possession" of alcohol as I had stated. NOW you are calling it "possession" ??

Okay, Wanderingson, you "kinda" got me there. I didn't do a good job of clarifying the distinction. It is a labor intensive argument. However....

...the actual REG uses the word "possess" in conjunction with "operating." To me, this implies a MOVING vehicle. The fmcsa "interpretation" of the reg includes a question that refers to "carrying" alcohol in a CMV. And the response is that if you are ROD, you are "exempt." [By not correcting the question, the fmcsa is validating the use of the word "carrying."] And if they are ONLY referring to the prohibition of "carrying" alcohol down the road, they surely don't seem to be concerned with a PARKED truck.

[You DO understand that the questions submitted in the "interpretation" section of each reg, are NOT presented by individual drivers but are presented, for clarification, by the authors themselves.... don't you?]

I believe the reg intends to prohibit MOVING the vehicle down the road (while on duty) with unmanifested alcohol on board. It says NOTHING about "possessing" while being PARKED and off duty. It even "exempts" you from operating the vehicle with alcohol on board IF you are OFF DUTY, unladen, and not engaged in the duties of interstate/intrastate commerce. (and it assumes you are not under the influence.)

They go even further to explain that an O/O, while off duty, is completely OUTSIDE the "scope" of the alcohol prohibition regulations (and others.) It's HIS truck, and he is OFF DUTY. He is still subject to STATE laws, and if convicted, it is STILL a CMV.... but, he is ON HIS OWN. If NOT.... he wouldn't even be able to do "maintenance" on his own truck while at home on vacation/restart without being considered "on duty" and performing S/S functions (which could break his "restart.") Try telling the Rev he can't work on his generator on his truck without logging it on line 4!

And, guess what.... the regs say they make NO distinction between an O/O and a company driver. They consider him BOTH a driver AND a company. So, unless he has a company policy that limits what he can do as a driver while he is OFF DUTY, he is bound ONLY to the fmcsa regs. And THEY say that when off duty, he is outside the scope of the rules of part 382 (and others.) So, what does that say about US?

It says that, unless our company has a more stringent policy, when we are OFF duty, we are outside the scope of 382 except where it applies to the 4 hour period just before we go ON duty.

[Rev.Vassago]

If NOT.... he wouldn't even be able to do "maintenance" on his own truck while at home on vacation/restart without being considered "on duty" and performing S/S functions (which could break his "restart.") Try telling the Rev he can't work on his generator on his truck without logging it on line 4!

Absolutely. Working on the truck is considered On Duty (not driving). That would also include putting out fires.

It is a labor intensive argument.

No, it is quite easy. You are making it "labor intensive", because that's what you do. You attack with confusion.

This is still the dumbest debate ever.

[golfhobo]

So if you have hazmat, you can't log sleeper berth? Interesting.....

Sorry, Rev. I misspoke. I do not haul hazmat, and don't really concern myself with those regs, although I have read and digested them to some extent.

I was referring to "explosives." And, concerning them, I would say you are right.

§397.5 Attendance and surveillance of motor vehicles.

(a) Except as provided in paragraph (b) of this section, a motor vehicle which contains a Division 1.1, 1.2, or 1.3 (explosive) material must be attended at all times by its driver or a qualified representative of the motor carrier that operates it.

(d) For purposes of this section —

(d)(1) A motor vehicle is attended when the person in charge of the vehicle is on the vehicle, awake, and not in a sleeper berth, or is within 100 feet of the vehicle and has it within his/her unobstructed field of view.

However, as it concerns regular Hazmat....

(c) A motor vehicle which contains hazardous materials other than Division 1.1, 1.2, or 1.3, materials, and which is located on a public street or highway, or the shoulder of a public highway, must be attended by its driver. However, the vehicle need not be attended while its driver is performing duties which are incident and necessary to the driver's duties as the operator of the vehicle.

So.... I guess a driver hauling regular hazmat cannot take his break on an onramp! He must be either in a safe haven OR a truckstop. Hmmm.... what does that SAY about a truckstop? Perhaps, that it is NOT considered a PVA?

And, if NOT.... perhaps, we can revisit the "physical control" aspect of the alcohol prohibition regs!

If Trooper Dial said that, he was clearly wrong

Is this the same Trooper Dial that you relied upon for support of YOUR interpretation of subpara(4) of the "On Duty" reg? The same interpretation that Mike M subscribes to?

Dang! Now my reliance on you, Mike M, AND the most honored DOT officer in the country has been "shaken!"

WHO can I rely on for "correct" interpretation of the regs? Hmm..... let's see....

Maybe, a trained Interpreter? Where can I find one? Oh, wait..... that would be ME!

[golfhobo]

This is still the dumbest debate ever.

If you say so. But, with 5,718 views and some 213 replies, it is possibly one of the most popular! (at least in current times.)

[Rev.Vassago]

Is this the same Trooper Dial that you relied upon for support of YOUR interpretation of subpara(4) of the "On Duty" reg? The same interpretation that Mike M subscribes to?

No. I don't rely on Trooper Dial for interpretation of the FMCSA regs. I may refer to him, but everything that I rely on, as well as (I'm sure) everything Mike M relies on, are from the FMCSA themselves.

I'm not one of those "Well, the DOT officer said it's okay, so it must be" kind of guys.

[Windwalker]

Windwalker: In the first line of the second paragraph of your signature, the sixth word should be knows (with an "s.")

How do I know that?

You're absolutely right. Thanks for the "HEADS-UP".
I fixed it.

[golfhobo]

You're absolutely right. Thanks for the "HEADS-UP".
I fixed it.

You're welcome. But, of course, I only mentioned it to prove a point. I miss NOTHING, no matter how insignificant.

I can't help it. It is programmed into me. I can watch a news show and correct the "anchors" on the fly when they say something that doesn't fit the rules of the English language, OR that contradicts an earlier report... or the FACTS.

It is what I "do." It is what made me a "natural" as an analyst/interpreter in the intelligence community. It is why my fellow analysts called me "Ears" when we were airborne and "listening" for any speck of info that would save American lives.

And yes, it is what makes me such an Azzhole here on CAD.

I won't apologize for being good at what I do. But, I DO apologize to anyone I have offended. Well.... unless they deserved it.

And now.... I expect the REV to chime in with some condescending comment. Because, that is what HE does.

And he is good at it. Everyone has to be good at something.

[golfhobo]

No, it is quite easy. You are making it "labor intensive", because that's what you do. You attack with confusion.

NO. I attack with factual interpretation. If that confuses you, that is on you.

[got mud?]

This has officially become the stupidest topic ever to be discussed on CAD. Everyone who reads it is now dumber for having done so.

do you have a quote or a reg to back that opinion up?