Law enforcement officers in some area communities can strap on a gun and issue tickets for drivers who are more sober than they are, a Journal-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 are at work with alcohol in their system.
These rules are often enforced by union contracts.
In Lebanon, where officers and firefighters can work with a .04 blood alcohol level, Police Chief Jeff Mitchell said he’s actively pursued more stringent alcohol rules to be written into the city’s union contracts.
Mitchell, who’s been in charge for nearly two years, said he negotiated his first union contract this past summer. He got the unions to remove a clause that allowed officers to suck on a breath mint before they were tested for alcohol, but couldn’t get union representatives to reduce 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?”
Mitchell said he’s never had to discipline an officer for using alcohol on the job and he believes the alcohol provision was added to the contract decades ago.
“My thought process is, ‘How does that look if the public looks at this and sees our contract?’”
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 above .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 of drivers cited for drunk driving with a blood alcohol content less than .08. He said he currently is representing a man who was ticketed east of Cincinnati after being pulled over because of a loud exhaust system before being hauled in for drunk driving with a BAC of .053.
But agencies throughout Ohio argue that the union contracts are protecting workers from being wrongfully accused of boozing on the job.
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.
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.
Like Butler County, Ralston said patrol officers aren’t allowed to consume alcohol on duty and an employee who tested 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.
Critical of policy
Sgt. Jeff Gebhart, who represents the county’s detectives, supervisors and deputies in contract negotiations, said he believes Butler County’s 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,” Gebhart said of the contract’s alcohol provision. “It’s just always been in the contract and some language remains the same in contracts for years. I wouldn’t want to be the officer that comes to the office that had alcohol impairment; the sheriff has about a zero tolerance.”
One fire department, in Liberty Twp. in Delaware County north of Columbus, did bargain for its firefighters to be permitted to work on the job until they’re legally drunk, with a blood alcohol level of .08. The township’s administrator said he agreed to the provision in order to get the union to agree to a drug and alcohol policy.
Doug Scoles, executive director for Mothers Against Drunk Driving in Ohio, said he doesn’t understand what would drive public safety agencies to include alcohol limits in their union contracts.
“I can’t, for the life of me, think of why it would be so important to have an acceptable level of alcohol permissible, Scoles said. “If I’m a law enforcement officer, I would be the last person in the world who would want to have alcohol on my breath when I pull someone over.”
Officers working in cities such as Hamilton, Middletown and Mason work under the zero-tolerance policies that Scoles says make sense.
In Mason, if an officer is suspected of having alcohol in their system while on duty, that officer can be put on administrative leave for up to three days, Mason Police Chief Ron Ferrell said.
In some instances, undercover cops might consume alcohol while on duty, but otherwise cops working in Middletown aren’t allowed to have a little buzz on the job.
“It’s just the proper thing to do. You don’t want any officer to be using alcohol while they’re performing,” David VanArsdale, the Chief of Police for Middletown said.