By Charlie Morasch, staff writer
How does your morning routine start?
Many drivers have some combination of coffee, breakfast, shower and brushing teeth. Maybe swig some mouthwash. Or pop in a cough drop if you’re fighting a cold for your pre-trip.
Cue the sirens: Those last two items could get you removed from your truck and placed out of service.
A combination of strict enforcement of the FMCSRs “measurable amount of alcohol” provision, and the use by police of unreliable roadside Breathalyzers could place you in the crosshairs – even if you haven’t had a drink.
Increasingly, one trucking legal team says, truck drivers are at risk of being placed out of service for barely measurable amounts of alcohol. Drivers have been put out of service after blowing a .01 percent – a percentage so low that mouthwash and breath fresheners are enough to register on a roadside Breathalyzer.
“Alcohol is alcohol – whether it’s cough syrup, mouthwash or a breath mint. You don’t have to be sitting there drinking beer, wine or whatever,” said James Mennella, attorney with Road Law, an Oklahoma City-based legal team that serves trucking clients.
“A lot of drivers out there are sick but, hey, they need to drive,” Mennella said. “They’re going to take cough medicine rather than not take it. And a lot of products contain alcohol. You can certainly get yourself up to .02 BAC, and possibly .04.”
FMCSR 392.5 says “No driver shall: 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.”
Aside from its effect on Breathalyzers, alcohol in mouthwash can be absorbed into a person’s bloodstream.
Some dental products, pain relievers and other over the counter medications contain enough alcohol to be considered “measurable” in your system. They include:
- Listerine mouthwash – 22 percent
- Scope mouthwash – 13 percent
- Vick’s Nyquil liquid – 10 percent
- Tylenol Rapid Release Gelcaps (percentage unlisted)
- Listerine Pocketmist (percentage unlisted)
- Orajel Instant Pain Relief (percentage unlisted)
(According to product labels)
Steve Nickell of OOIDA’s CMCI division, which provides drug and alcohol testing services for truck drivers, recently saw a driver’s blood test come back positive after he swished mouthwash with alcohol.
“Any measurable amount of alcohol is any measurable amount,” said Nickell.
Guidance in the Federal Motor Carrier Safety Regulations interprets a “measurable amount of alcohol” to be a result greater than .01 (generally thought to be .02) but less than a .04 blood alcohol content.
The .01 “measurable limit” on commercial truck drivers is much stricter than the levels that will take passenger vehicle drivers off the road or stop FAA-regulated pilots from flying. In fact, passenger vehicle drivers must register eight times that amount before they’re considered over the line. Pilots are precluded from flying only when blowing 0.019 or greater.
Troopers and others performing roadside exams use portable Breathalyzer devices that don’t hold up in court like stationary Breathalyzers do. The stationary Breathalyzers found in county jails and police departments, such as the Intoxilyzer 5000, are calibrated and have a record of maintenance that police departments can use in court.
Portable Breathalyzers, Mennella said, are used as a preliminary indicator to tell law enforcement officers whether a driver is near intoxication levels.
Mennella said following the implementation of CSA 2010, law enforcement officers appear to be more likely to perform a full inspection than in years past. And even minimal amounts of alcohol are being recorded.
“We’re seeing more inspection reports right now than we’ve ever seen before,” he said.
Mennella told Land Line Magazine the reality is that your ability to drive your truck and earn a living could be tripped up by a barely detectable blood alcohol level – one that may not have been confirmed by evidence that holds up in court.
Defense attorneys point to studies that show mouth alcohol – small amounts of alcohol that get trapped in food, gum tissue and dentures – is a problem in every Breathalyzer test administered.
Mouth alcohol can be higher than blood alcohol for an individual who recently gargled with mouthwash, or who used breath freshener or cough drops containing alcohol.
Except for the first 15 to 20 minutes after a person uses mouthwash with alcohol, studies show, mouth alcohol is typically low.
Low enough – unless your breath needs to be below .01 percent BAC.
During the mid-1990s, Land Line Magazine reported on FHWA’s onetime opinion that mouthwash, fuel additives, and other products with alcohol be treated the same as beer or alcoholic beverages.
It seemed at the time that Federal Highway’s bigwigs were worried truckers would take after Kitty Dukakis, wife of 1988 presidential candidate Michael Dukakis, who famously admitted to drinking aftershave, nail polish remover and rubbing alcohol.
After Land Line published stories with wisecracking headlines like “Vintage Walgreen’s, excellent choice,” FHWA later clarified that it wouldn’t treat mouthwash or other hygiene products with alcohol as alcoholic beverages.
That clarification means truckers don’t have to worry about being busted for possession of aftershave and mouthwash. But before popping those over the counter meds or gargling, they’ll want to know if any alcohol is in the product.
While an out of service for measurable alcohol may not cost you your CDL immediately, Mennella said, it’s a stain that will likely follow a person throughout their career.
“Once you get started in the system, now you’re in the game and you have to deal with it,” he said. “And it looks like hell on your employment record.” LL