Law enforcement officers in some area communities can strap on a gun and issue tickets to drivers who are more sober than they are, a Dayton Daily News investigation found.
The newspaper reviewed union contracts for local public safety offices, including the Ohio State Highway Patrol, and found that officers and firefighters are sometimes protected from discipline when they’re at work with alcohol in their system.
The contracts for the highway patrol and state parks police say those officers can’t be disciplined for a blood alcohol level below .04 percent. Similar rules apply to some local police and fire departments. The Butler County sheriff’s office contract says deputies don’t test positive until they hit .05 percent. A fire department north of Columbus set the limit at .08 percent, or legally drunk.
“I can’t, for the life of me, think of why it would be so important to have an acceptable level of alcohol permissable,” said Doug Scoles, executive director for Mothers Against Drunk Driving in Ohio. “Why’s that even in the contract? That’s flabbergasting to hear.”
Highway Patrol Spokeswoman Lt. Anne Ralston said the unions bargained for the .04 language years ago and it’s the same across all state employee contracts, including those for state park police, clerks and teachers.
The contract language is based on the point at which it is illegal to operate a commercial vehicle under federal law, though the federal government requires regulated entities to have a policy against drivers with a concentration between .02 and .04 performing safety-sensitive functions.
The Fraternal Order of Police contract that covers 580 state police officers, park rangers and other state law enforcement officers, as well as the Ohio State Troopers Association contract that covers 1,400 highway patrol employees both say, “No consequences will attach to any result below a .04 percent level.”
Ralston said patrol officers cannot consume alcohol on duty and are subject to both random and reasonable suspicion testing. She said an employee under .04 would be removed from duty and sent home.
“In no way is coming to work with any amount of alcohol or drugs in an employee’s system in line with our Core Values or our mission,” she said.
Other area agencies set a .04 percent threshold in their contracts — including Huber Heights and Fairborn police, and the Riverside fire department. Some also have rules against drinking for a number of hours before work, or requiring officers to be fit for duty.
Attorney Patrick Mulligan, who handles drunk driving cases across southwest Ohio, pointed out that drivers under age 21 can be cited for drunk driving with a blood alcohol content over .02. This means an officer could issue a ticket to someone more sober than he or she is.
“It’s an interesting double standard,” he said. “I don’ t think it’s one the general public would appreciate.”
Mulligan said he handles two or three cases a month involving drivers cited for drunk driving with blood alcohol content under .08. He currently is representing a man who was ticketed in Hillsboro after being pulled over because of a loud exhaust and being hauled in for drunk driving with a blood alcohol level of .053.
Montgomery County Sheriff Phil Plummer said no amount of alcohol is acceptable in an officer’s system, and that’s his agency’s policy.
“We have to make split-second decisions and we could take somebody’s life in a split-second decision, so they have to be on their best game. They can’t be intoxicated at all,” Plummer said. “You can’t be under the influence while dealing with weapons. I can’t believe they have that in their contracts.”
Clark County also has a zero tolerance policy, though Springfield police and fire departments go with .02 percent, as do Dayton and Beavercreek. Greene County sets its limit at .03.
Paul Cox, chief counsel for the Ohio Fraternal Order of Police, said the blood alcohol level is evidence used in disciplinary hearings, but usually it’s in the context of dealing with some related behavioral issue. He said he has never in 30 years seen an alcohol-related concern where someone tested under .04 percent.
“(Departments) do the same thing with their employees that the employee would do when they pull somebody over for an investigation,” he said.
The highest limit found in the state is in Liberty Twp. in Deleware County north of Columbus, where firefighters don’t test positive for alcohol until they’re legally drunk with a blood alcohol level of .08. Township Administrator David Anderson said he agreed to that limit to get the union to agree to a drug and alcohol policy.
He said the union argued that its members might need to be called in to handle an emergency, and “I don’t need anybody deciding not to come because that number is artificially low.”
“(If they’re drunk), they’re probably going to get stopped and told you’re not getting on that apperatus, you’re not sticking needles in anyone. You’re not going anywhere,” Anderson said.
Mark Sanders, president of the Ohio Association of Professional Fire Fighters, himself a Cincinnati firefighter, said the blood alcohol level usually is boilerplate language taken from commercial driving rules.
“Certainly we don’t condone any firefighter being impaired on the job,” Sanders said.
Contract allowed breath mint
Lebanon Police Chief Jeff Mitchell negotiated his first union contract last summer and was happy he got the unions to remove a clause that allowed officers to suck on a breath mint before they were tested for alcohol. But he couldn’t get union representatives to cut the .04 limit to zero.
“When I came across that, I thought, ‘Wow, that’s different,’ ” Mitchell said, adding that breath mints can distort breathalyzer readings.
“Doesn’t that sound odd to you that you would have that in a contract with police?”
In Butler County, workers in the sheriff’s office aren’t allowed to drink just prior to their shifts or consume alcohol on the job.
But their contract forces supervisors to take extra measures to prove a deputy, dispatcher or corrections officer has been drinking if they test at a .05 or under. If a deputy does record a .04 percent level on an alcohol test, for example, a supervisor would have to use other methods, such as a urine or blood test, to prove impairment and discipline the individual, Lt. Morgan Dallman said.
He said the contract also gives needed leeway for officers who might take medications or prescriptions prior to their shifts.
“Certain medications, like cough syrup, have a degree of alcohol. If a deputy sheriff is suspected of having an alcoholic beverage, (medications) could register to around .05,” Dallman said.
Sgt. Jeff Gebhart, who represents the county’s detectives, supervisors and deputies in contract negotiations, said he believes the alcohol policy has just stayed in the contract, as is, for several years because it’s never come up as an issue in the office. He said in the 24 years he’s worked in the office, he’s never seen a deputy tested for being impaired on the job.
“It’s not something that we’ve really bargained hard for,” he said.