General
§392.5 Alcohol prohibition.
(a) No driver shall—
(a)(1) Use alcohol, as defined in §382.107
of this subchapter, or be under the influence of alcohol, within 4 hours before
going on duty or operating, or having physical control of, a commercial motor
vehicle; or
(a)(2) 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; or
(a)(3) Be on duty or operate a commercial
motor vehicle while the driver possesses wine of not less than one-half of one
per centum of alcohol by volume, beer
as defined in 26 U.S.C. 5052(a), of the Internal Revenue Code of
1954,
and distilled spirits
as defined in section 5002(a)(8), of such Code.
However, this does not apply to possession of wine, beer, or distilled spirits
which are:
(a)(3)(i) Manifested and transported as part
of a shipment; or
(a)(3)(ii) Possessed or used by bus
passengers.
(b) No motor carrier shall require or
permit a driver to—
(b)(1) Violate any provision of paragraph
(a) of this section; or
(b)(2) Be on duty or operate a commercial
motor vehicle if, by the driver’s general appearance or conduct or by other
substantiating evidence, the driver appears to have used alcohol within the
preceding 4 hours.
(c) Any driver who is found to be in violation of the provisions of paragraph
(a) or (b) of this section shall be placed out-of-service immediately for a
period of 24 hours.
(c)(1) The 24-hour out-of-service period
will commence upon issuance of an out-of-service order.
(c)(2) No driver shall violate the terms of
an out-of-service order issued under this section.
(d) Any driver who is issued an
out-of-service order under this section shall:
(d)(1) Report such issuance to his/her
employer within 24 hours; and
(d)(2) Report such issuance to a State
official, designated by the State which issued his/her driver’s license, within
30 days unless the driver chooses to request a review of the order. In this
case, the driver shall report the order to the State official within 30 days of
an affirmation of the order by either the Division Administrator or State
Director for the geographical area or the Administrator.
(e) Any driver who is subject to an
out-of-service order under this section may petition for review of that order
by submitting a petition for review in writing within 10 days of the issuance
of the order to the Division Administrator or State Director for the
geographical area in which the order was issued. The Division Administrator or
State Director may affirm or reverse the order. Any driver adversely affected
by such order of the Division Administrator or State Director may petition the
Administrator for review in accordance with 49 CFR 386.13.
[47 FR 47837, Oct. 28, 1982, as amended at 52 FR 27201, July 20,
1987; 59 FR 7515, Feb. 15, 1994]