Driver Lifestyles

Just Say No

Whenever we talk to clients about the obvious dangers of “drinking and driving,” most never seem to think we’re discussing a scenario that includes them.  After all, they don’t drink and drive, they’re not raging alcoholics.

Unfortunately, and much to our surprise, we’ve been getting a lot of calls lately regarding DUI, Measurable Amount of Alcohol, and Possession of Alcohol charges. So, the purpose of this column is to, once again, remind you that you don’t have to drink an iced tea glass full of vodka every morning to have an alcohol related problem.

Two of the most common alcohol related problems we hear about are violations due to “residual” alcohol in your system and “possession” of alcohol. Basically, residual alcohol is the alcohol still in your system 8 to 12 hours after you’ve been drinking. You may not “feel” drunk, but when an officer or safety official asks you to take a breathalyzer or blood test, your blood alcohol content (BAC) registers above 0.00 but less than 0.04 (the legal limit for DUI in a commercial vehicle).

So, instead of a ticket for DUI, you get one for “Measurable amount of Alcohol,” Usually, the “measurable amount” is between 0.02 and 0.03. But, although your BAC was below the legal DUI limit, you’re still in a lot of trouble.

Possession of alcohol is also a misunderstood violation and, just like any other alcohol ticket, a conviction can be very harmful to your MVR. Remember to review section 392.5 of the FMCSR’s for more information regarding alcohol prohibition.  Here are some of our most frequently asked questions about “possession” and “residual” alcohol citations.

Question:  I don’t drink, but I bought a “collector’s edition” NASCAR beer can for my brother and I put it, unopened, in my sleeper. When I stopped at the scales, the officer asked me if I had any alcohol and I told him I had the one, unopened collector’s can in my sleeper. The next thing I knew, the officer put me out of service and gave me a citation for “Possession of Alcohol.” Can the officer do that?

Answer: Yes, the officer can (and did) give you a ticket for possession of alcohol simply for having it in your commercial vehicle. No, it doesn’t matter that you don’t drink. No, it doesn’t matter that the can of beer in your sleeper was unopened. No, it doesn’t matter that you bought the beer for a gift. Remember what your ticket is written for . . . POSSESSION of alcohol.

If you have alcohol in your vehicle, it’s in your possession. However, all is not lost. Usually, if this is your “first offense,” and your case is being heard in a decent Court, there may be a lot that can be done to save you from being convicted of an alcohol violation.

Question: My wife and I celebrated our wedding anniversary by going to dinner. We both had wine with our meal and then went back to our truck for the night. The next morning, we had an early delivery and on the way, we stopped at the scales.

When I rolled down my window, the scale master said he smelled alcohol and called a state trooper. I told the trooper that I had a couple of glasses of wine the night before and that I’d be happy to take a breath test. The officer gave me the test, said I blew a 0.02, put me out of service and wrote me a ticket for “Measurable Amount of Alcohol.” I’ve never had any alcohol conviction on my MVR and if I’m convicted of this charge, I’ll lose my lease. What do I do now?

Answer: Unfortunately, “Measurable Amount of Alcohol” is a much more common violation than it used to be. Remember, the officer didn’t cite you for DUI. The minimum legal limit for DUI in a commercial vehicle is 0.04, while “Measurable Amount” is generally 0.02 up to the .04 DUI level. If you are convicted of the “measurable amount” charge, there is no mandatory disqualification of your CDL, according to the Federal Motor Carrier Safety Regulations (FMCSR).

The “real life” problem with a “Measurable Amount” charge is typically what you stated in your question, i.e. if convicted, you’ll lose your lease or be unable to get liability insurance coverage.   As we’ve discussed many times before, you only have one MVR and almost any conviction, and most certainly an alcohol related conviction, can do nothing but harm your ability to remain employed or qualify for liability coverage.

No matter what your circumstance may be, if you find yourself with an alcohol related citation, you need to get representation on the matter.  Generally, if this is a first offense, the Court will usually be much more sympathetic and the greater your likelihood will be of having the original charge amended to a non-alcohol charge.

We hope you can use the information in this column to help with every day, real life problems you face on the road.  We invite you to send us any questions or comments you may have regarding transportation law to: ROAD LAW, 3441 W. Memorial, Suite 4, Oklahoma City, OK 73134; fax to (405) 463-0565; contact us through our website at www.roadlaw.net. or call us at (405) 463-0566.  We look forward to hearing from you.