2013. htps://
paleofuture.gizmodo.com/ drunk-driving-and-the-pre-history-of- breathalyzers-1474504117. “Legislative History of .08 Per Se
Laws.” Te National Highway Traffic Safety Administration, July 2001. htps://icsw.
nhtsa.gov/people/injury/research/pub/ alcohol-laws/08history/. By 2004, all 50 states had lowered their
CONS
PROS PROS
Currently not permitted for DOT Prohibited in Hawaii, Maine, and Vermont
Detects recent use Difficult to cheat
Accurate and legally defensible Collent anytime, anywhere
Figure 1—Lab-based oral fluid testing.
culture. As far as legitimate and legal use of impairing substances, it is important that employers examine their positions and determine what is allowed, create policies and processes to support that policy, and for safety and human resources to work together to consider applicable ADA requirements.
Under the Influence Versus Impairment
Like the issue of drug use versus abuse in the workplace, the difference between an employee being under the influence as opposed to impaired is subtle and can be difficult to determine. Te best way to understand the difference is to look at a historical example—in this case, alcohol. For years we’ve known that alcohol
impacts the body and the brain, oſten causing someone to act in a way that they would not normally. We developed the ability to test an individual for alcohol metabolites in the early 1900s and were able to determine that alcohol metabolites
24 datia focus
would stay in an individual’s system for a set amount of time.2
However, just because
an individual had alcohol metabolites in their system didn’t mean that they were impaired—alcohol metabolites can still show up in the human body aſter the impairing influence has waned.3 Te 70s–80s brought about a set blood
or breath alcohol concentration (BAC) of 0.15%, which many states and workplaces adopted as their standard for impairment. If a driver/employee was tested and had over 0.15% BAC, they were considered impaired. Any result below 0.15% could be considered under the influence, but not impaired. Te differentiation made in these laws was that if a person was impaired, they couldn’t perform functions safely or up to their normal standard. If they were under the influence, they could still function safely, however, despite ingesting alcohol at some prior point and having metabolites found in their system. “Drunk Driving and Te Pre-History of Breathalyzers.” PaleoFuture, 31 December
acceptable BAC for drivers to 0.08% aſter further research indicated that any alcohol content above that number would impair an individual. Many employers followed suit, lowering their acceptable BAC to 0.08% as well. Looking at driving under the influence (DUI) provides insight into the complexities. Tere are “per se” DUIs and DUIs based on impairment. To prove a per se DUI, the driver must have a BAC of 0.08% or more. Proving an impairment DUI, on the other hand, requires evidence that the driver was affected by the alcohol or drugs ingested. For an impairment DUI, the driver must be proven to be driving or operating a vehicle and under the influence or intoxicated. Ultimately, the only difference between a per se DUI and an impairment DUI is how law enforcement proves the driver was under the influence. For per se DUIs, they need to prove the driver’s BAC, and for impairment DUIs, proving actual impairment is necessary. In some states, impairment can be
established by showing that drugs or alcohol affected the driver’s physical or mental abilities in any way. In other words, it doesn’t have to be proven that the motorist was drunk or incapable of driving safely. In Florida, for instance, impairment to “some degree” must be shown, whereas in Arizona only the “slightest degree” of intoxication must be shown. Standards vary by state, however. In California and Washington D.C., a DUI conviction requires proof that the driver was impaired to “an appreciable degree.” Similarly, in Illinois, proving a driver was the under the influence involves showing
spring 2019
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