[golfhobo]

As I TRIED to state earlier, there are OTHER regulations concerning the USE or MISUSE of alcohol by drivers (whether OTR or not.) SOME of these regulations are on the COMPANIES regarding what they can or cannot do! Some are on the drivers.... and still others are on the local LEO's in any state. I will not get into what an LEO can or MIGHT do. I have been out there long enough to KNOW where they draw the line!

There are truckstops out there that have signs POSTED saying, "no consumption of alcoholic beverages on this property," and I am quite sure that the local LEO's will respond and support this if ANY violation is deemed to have occurred. But, that is a very SMALL minority of truckstops! MANY of them SELL beer in their stores, and many OTHERS have bars! You can draw your OWN conclusions as to what this IMPLIES!

I WISH I had time to compile and organize all the regs that I have prepared to list here. But, I'm SURE someone will not allow that, so they may be a bit haphazard. I will TRY to relate them to each other as I go.

§382.205 On-duty use.


No driver shall use alcohol while performing safety-sensitive functions. No employer having actual knowledge that a driver is using alcohol while performing safety-sensitive functions shall permit the driver to perform or continue to perform safety-sensitive functions.

§382.205 On-duty Use / interpretations

Question 1: What is meant by the terms "use alcohol" or "alcohol use?" Is observation of use sufficient or is an alcohol test result required?

Guidance: The term "alcohol use" is defined in §382.107. The employer is prohibited in §382.205 from permitting a driver to drive when the employer has actual knowledge of the driver's use of alcohol, regardless of the level of alcohol in the driver's body. The form of knowledge is not specified. It may be obtained through observation or other method.

[It may not be "specified," but it surely is explained later.]

§382.307 Reasonable suspicion testing.


(a) An employer shall require a driver to submit to an alcohol test when the employer has reasonable suspicion to believe that the driver has violated the prohibitions of subpart B of this part concerning alcohol. [That means DRIVING or being ON DUTY while under the influence.]

The employer's determination that reasonable suspicion exists to require the driver to undergo an alcohol test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver. [more later.]

(c) The required observations for alcohol and/or controlled substances reasonable suspicion testing shall be made by a supervisor or company official who is trained in accordance with §382.603.

So much for "Beer Nazi's!" :shock: :lol:

(d) Alcohol testing is authorized by this section only if the observations required by paragraph (a) of this section are made during, just preceding, or just after the period of the work day that the driver is required to be in compliance with this part.

SEE the definiton of ON DUTY! :lol:

A driver may be directed by the employer to undergo reasonable suspicion testing only while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions.

Get it?? That means ONLY in the (4 hour) period BEFORE going ON DUTY, DURING the on duty period, OR JUST after coming off duty! It CLEARLY means that a driver is NOT to be subjected to testing EVEN for suspicion during his OFF DUTY break, or a reset!

(e)(1) If an alcohol test required by this section is not administered within two hours following the determination under paragraph (a) of this section, the employer shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered. If an alcohol test required by this section is not administered within eight hours following the determination under paragraph (a) of this section, the employer shall cease attempts to administer an alcohol test and shall state in the record the reasons for not administering the test.

This CLEARLY shows that unless a driver is suspected of using alcohol WHILE performing safety sensitive functions, AND is tested within a reasonable time before or after, his OFF DUTY activities are EXEMPT!

(e)(3) Except as provided in paragraph (e)(2) of this section, no employer shall take any action under this part against a driver based solely on the driver's behavior and appearance, with respect to alcohol use, in the absence of an alcohol test.

Therefore, ANY company, who does not have a specified "no tolerance" policy concerning alcohol use while on the road, has NO AUTHORITY to take any action against a driver, absent an alcohol test, PURSUANT to the regs that allow them to REQUIRE such a test!

Now.... the "guidance" for this reg:

Question 1: May a reasonable suspicion alcohol test be based upon any information or observations of alcohol use or possession, other than a supervisor's actual knowledge?

Guidance: No. Information conveyed by third parties of a driver's alcohol use may not be the only determining factor used to conduct a reasonable suspicion test. A reasonable suspicion test may only be conducted when a trained supervisor has observed specific, contemporaneous, articulable appearance, speech, body odor, or behavior indicators of alcohol use.

The "Beer Nazi's die ANOTHER horrible death! :lol:

Question 2: Why does §382.307(b) allow an employer to use indicators of chronic and withdrawal effects of controlled substances in the observations to conduct a controlled substances reasonable suspicion test, but does not allow similar effects of alcohol use to be used for an alcohol reasonable suspicion test?

Guidance: The use of controlled substances by drivers is strictly prohibited. Because controlled substances remain present in the body for a relatively long period, withdrawal effects may indicate that the driver has used drugs in violation of the regulations, and therefore must be given a reasonable suspicion drug test.

Alcohol is generally a legal substance.

Only its use or presence in sufficient concentrations while operating a CMV is a violation of FHWA regulation. Alcohol withdrawal effects, standing alone, do not, therefore, indicate that a driver has used alcohol in violation of the regulations, and would not constitute reasonable suspicion to believe so.



§382.305 Random testing.

(m) A driver shall only be tested for alcohol while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions.

Must I AGAIN explain how this wording is used over and over to distinguish between an ON DUTY driver and an OFF DUTY driver? :shock: :roll:

and the GUIDANCE:

Question 1: Is a driver who is on-duty, but has not been assigned a driving task, considered to be ready to perform a safety-sensitive function as defined in §382.107 subjecting the driver to random alcohol testing?

Guidance: A driver must be about to perform, or immediately available to perform, a safety-sensitive function to be considered subject to random alcohol testing.

Sorry, GMAN..... but this blows your response out of the water! You CANNOT be called for a random while you are OFF DUTY / ROD by your employer!

Question 2: What are the employer's obligations, in terms of random testing, with regard to an employee who does not drive as part of the employee's usual job functions, but who holds a CDL and may be called upon at any time, on an occasional or emergency basis, to drive?

Guidance:.............

Alcohol testing, however, may only be conducted just before, during, or just after the performance of safety-sensitive functions. A safety-sensitive function as defined in §382.107 means any of those on-duty functions set forth in §395.2 On-Duty time, paragraphs (1) through (7), (generally, driving and related activities).

If the employee's name is selected, the employer must wait until the next time the employee is performing safety-sensitive functions, just before the employee is to perform a safety-sensitive function, or just after the employee has ceased performing such functions to administer the alcohol test.

NOW.... for those who want to argue the Company's prerogative.... I will GIVE you this. But, pay attention to the wording, and what it might MEAN to the company's ability to MOVE the "assets" IF they choose to BUST an employees break OR "reset," they would be standing down a piece of equipment that could make them MONEY! Judge for yourselves IF they would DO such a thing!

Question 17: May an employer notify a driver of his/her selection for a random controlled subÂ*stances test while the driver is in an off-duty status?

Guidance: Yes. Part 382 does not prohibit an employer form notifying a driver of his/her selection for a random controlled substances test while the driver is in an off-duty status.

If an employer selects a driver for a random controlled substances test while the driver is in an off-duty status, and then chooses to notify the driver that he/she has been selected while the driver is still off-duty, the employer must ensure that the driver proceeds immediately to a collection site. Immediately, in this context, means that all the driver’s actions, after notification, lead to an immediate speciÂ*men collection. If the employer’s policy or practice is to notify drivers while they are in an off-duty status, the employer should make that policy clear to all drivers so that they are fully informed of their obligation to proceed immediately to a colÂ*lection site.

If an employer does not want to notify the driver that he/she has been selected for a random controlled substances test while the driver is in an off-duty status, the employer could set aside the driver’s name for notification until the driver returns to work, as long as the driver returns to work before the next selection for random testing is made.

Employers should note that regardless of when a driver is notified, the time the driver spends traveling to and from the collection site, and all time associated with providing the specimen, must be recorded as on-duty time for purposes of compliÂ*ance with the hours-of-service rules.

Now.... HOW many dispatchers are gonna BLOW the HOS assets of their trucks?? :roll:

And, last but not least.....

§382.601 Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances.

(b)(3) Sufficient information about the safety-sensitive functions performed by those drivers to make clear what period of the work day the driver is required to be in compliance with this part;

(c) Optional provision. The materials supplied to drivers may also include information on additional employer policies with respect to the use of alcohol or controlled substances, including any consequences for a driver found to have a specified alcohol or controlled substances level, that are based on the employer's authority independent of this part. Any such additional policies or consequences must be clearly and obviously described as being based on independent authority.

Also, please note that the signing of the policy by the employee is in no way an acknowledgment that the policy itself complies with the regulations.

Now.... I don't know about YOU guys, especially you PRUDES.... but, this is pretty clear evidence that the alcohol testing policy is DESIGNED around a driver's ON DUTY time.... and that his OFF DUTY time is OFF LIMITS!

The FMCSA is a government agency, and REALIZES that our OFF DUTY time is our own, and that we are "free to pursue activities of our own choosing!" I don't know how much more clear they can MAKE these regs! They clearly are ONLY concerned with, and EMPOWERED to control, the time JUST before, during, and just AFTER our "tour of duty!"

This is the ONLY time wherein alcohol USE is of any concern to them, and alcohol MISUSE can cause a problem that they have a RIGHT to control or monitor!

I don't know how they can be much clearer than to say that "Alcohol use is LEGAL!" Did they ONE TIME say that NO ALCOHOL is allowed in a truck while the driver is OFF DUTY? COULD they have, if they wanted to? :roll:

I'm quite SURE that there are enough intelligent minds in the FMCSA that, pooled together, COULD have come up with the words.... "NO ALCOHOL in a CMV," but they didn't. They specified (and even clarified under protest,) the terminology of a CMV "IN OPERATION." :roll:

Furthermore, they ALLOWED for companies to enforce STRICTER regulations. They would NOT have DONE this if there OWN regulations were sufficient to cover such an eventuality! :roll:

Go ahead, Rev..... pick away at my arguments. I don't really CARE! You PRUDES can come up with a milion reasons why one SHOULDN'T do it.... I am ONLY concerned with explaining what the regs say. And THEY don't say you CAN'T do it!

Every driver must make the decision for themselves! And I AGREE that they need to adhere to any additonal COMPANY policies! But, I am NOT concerned with prudish company policies! I am here to CLARIFY the Regulations! And I believe I have DONE so!

Your objections and smart remarks, Rev... are NOTED! But, (hopefully) I will respond ONLY to rational discussions and debates on the interpretaions of these regs. IF you think you HAVE one, I'd appreciate debating them ONE point at a time!

How was your Kegger? Did ANYONE show up? Or just Nobody? :lol:

Hobo

[Double L]

Golfhobo from what I read, they can't do squat about you wanting to take in a couple beers when your off duty taking your 10 hour or 34 hour break? But they got the right to take action when they have suspection of alcohol in the driver's system when on duty?

Now let me make this more clearer for people who are still confused. Think of the average joe's 9-5 job as being "on duty" time. They can't consume any alcohol while being "on duty" from 9-5. But when they get off the clock at 5 they can drink alcohol and do whatever they want since this is their "off duty" time.

I'm not disagreeing with Golfhobo but I wanted to make a simpler and shorter version since Golfhobo can be a little hard on the eyes with all that reading he makes us do. :lol:

[Rat]

Off Duty is Off Duty, Sleeper berth is Sleeper birth (not actually off duty).

An open container in a motor vehical (comercial or not) is an offense.

Intoxicated in a vehical (comercial or not with actual physical control (having keys in hand,pocket or in the ignition) is an offense and can subject you to loss of driving privs similar to a DUI.

Leave the beer at home for when you are logged in line 1 of your log book. If you are logged into any other line in your log book then you better not have an open beer or empty beer can or be intoxicated.

It is simple as that and these are the laws. FMCSA laws can not be more lenient then these laws but they can be harder.

[golfhobo]

Originally Posted by Double L

Golfhobo from what I read, they can't do squat about you wanting to take in a couple beers when your off duty taking your 10 hour or 34 hour break? But they got the right to take action when they have suspection of alcohol in the driver's system when on duty?

Absolutely correct.

Now let me make this more clearer for people who are still confused. Think of the average joe's 9-5 job as being "on duty" time. They can't consume any alcohol while being "on duty" from 9-5. But when they get off the clock at 5 they can drink alcohol and do whatever they want since this is their "off duty" time.

Yep. And the FMCSA regulations were worded around pretty much the SAME Industry standsards and Constitutional Rights! :wink:

I'm not disagreeing with Golfhobo but I wanted to make a simpler and shorter version since Golfhobo can be a little hard on the eyes with all that reading he makes us do. :lol:

Just part of your EDUCATION, young man! If you never stretch your mind, you will never know the limits!

[Double L]

Originally Posted by golfhobo

I agree with the last part, I enjoy reading and I'll read pretty much anything, but it sure didn't help to read your post when first waking up from a good nap either. :lol: It's not that hard to interput the FMCSA rules at all atleast in my opinion.

[BigDiesel]

It is sad to see an individual, that finds it so important to have alcohol while out on the road.... and needs to pick apart the regulations. :roll:

What our jr. matlock is failing to understand is the difference between the "spirit" of the law and the "letter" of the law....... The spirit of the law always carries more weight than the letter in the rule of law.....

So...... our unemployed dweller wants to debate me on any trucking subject I choose..... Rule and Regs make my eyes glaze over, so I choose the subject.... The Business and economics of Trucking and how to be profitable.... ..... Your move junior matlock.... :lol:

[Rev.Vassago]

Was the other thread locked down? Are you trying to hide from it? What is the point of starting another thread that rehashes the same exact thing as the first one? :roll:

[Double L]

Originally Posted by BigDiesel

It is sad to see an individual, that finds it so important to have alcohol while out on the road.... and needs to pick apart the regulations. :roll:

What our jr. matlock is failing to understand is the difference between the "spirit" of the law and the "letter" of the law....... The spirit of the law always carries more weight than the letter in the rule of law.....

So...... our unemployed dweller wants to debate me on any trucking subject I choose..... Rule and Regs make my eyes glaze over, so I choose the subject.... The Business and economics of Trucking and how to be profitable.... ..... Your move junior matlock.... :lol:

I don't drink so this doesn't apply to me but I felt like making it CLEARER. If you want to debate then we can debate, you name the topic! I'm not saying I'm a genius or anything but since when was it against the law for a young person to weigh their opinion? I don't see what your deal is with us young new drivers anyway! :roll:

[golfhobo]

Originally Posted by Rev.Vassago

Was the other thread locked down? Are you trying to hide from it? What is the point of starting another thread that rehashes the same exact thing as the first one? :roll:

NO, it wasn't locked down, and NO I'm not hiding from anything. And NO, these are NOT the same regs we were fighting over in the last thread. I proved you wrong twice. You said YES, BUT.... :roll:

There was just too many posts that didn't relate to the issue. If YOU want to move this back to that one, and can have a MOD do it, be my guest!

There have been MANY "part deux" threads on this site! I don't know WHY you think I am not allowed to have one! As I said.... your objections (without fact) are noted! :roll:

It doesn't SURPRISE me that you see no difference in the regs I quoted on this thread vs. the other one. Because, you don't KNOW the regs! Hopefully, somone will come along to debate me who IS paying attention! :roll:

[Rev.Vassago]

Originally Posted by golfhobo

I proved you wrong twice. You said YES, BUT....

No, I didn't.

It doesn't SURPRISE me that you see no difference in the regs I quoted on this thread vs. the other one.

I didn't even read what you wrote in this thread, nor do I have any intention of doing so. Your comprehension of the regs is laughable at best, and therefore discussing them with you is a lesson in futility.