Intoxicant [BEST]

When the employer alleges that the claimant used an intoxicant or was intoxicated and the claimant denies the allegation, it is necessary to gather facts to determine if the claimant indeed used intoxicants or was indeed intoxicated. The statement, "He was intoxicated," is a conclusion which may or may not be based on facts. If the facts do not support the conclusion that the claimant used intoxicants or was intoxicated, he or she would not be disqualified.

Intoxicant

(Except where intoxication is the result of an irresistible compulsion to use or consume intoxicants or an inability to abstain) . . . an employee's conduct constitutes misconduct due to intoxication or the use or consumption of intoxicants if . . . :

(1) He or she is intoxicated at the time he or she reports to work or returns to work following a lunch or rest period or similar period. As used in this subdivision, 'intoxicated' means under the influence of any intoxicant to the extent that a reasonable observer would conclude that there is a significant adverse effect upon an individual's normal ability, skill, or competence to perform the usual duties of the work assigned.

(5) He or she reports to work not intoxicated but with offensive physical effects due to the use or consumption of any intoxicant which adversely affects his or her ability or performance on the job, after receiving at least one warning or reprimand. "

The claimant testified that the night before he had the accident he drank three liters of wine, but did not drink after 10 p.m. or before going to work at 7 a.m. the following morning. He stated he did not have an irresistible compulsion to consume intoxicants.

What if an employee refuses to take the alcohol or drug test required by the employer to determine if the employee is under the influence of intoxicants? If the employee refuses to take the test and is discharged for the refusal, see C.1. Refusal to Take Drug Test below.

Use of intoxicants other than alcohol during lunch or break periods would be misconduct, unless the use of intoxicant is due to an irresistible compulsion. Furthermore, it is not necessary that there is an employer rule prohibiting the use of intoxicants other than alcohol during the break periods, or that the claimant is given a prior warning, before misconduct is found.

Using intoxicants during working hours would evince a disregard of the standard of behavior which the employer has a right to expect, and would be considered misconduct, unless the use is due to an irresistible compulsion.

Use of an alcoholic intoxicant during lunch or break periods would not be misconduct unless there is an employer rule prohibiting consumption of alcohol under penalty of discharge, and the claimant knows about it or prior warnings have been given.

Generally speaking, the conduct of a claimant off the job is his or her own affair and does not affect the employer's legitimate business interests. However, if the claimant used or consumed intoxicants while off the job to the degree that it seriously impaired his or her ability to work, this would tend to injure the employer's interests and misconduct may be shown, unless the use of intoxicants is due to an irresistible compulsion.

The employer had a substance abuse policy which prohibited employees from reporting to work with a detectable level of intoxicants or illegal drugs. The policy further provided that an employee involved in a workplace accident would be required to take a drug test. Refusal to submit to a drug test under those circumstances would be cause for discharge.

If the claimant is discharged because of the use of intoxicants, either on or off the job, the discharge would not be for misconduct if he or she has an irresistible compulsion to use or consume intoxicants.

An employee's discharge is not for misconduct due to intoxication or the use or consumption of intoxicants if the intoxication-induced behavior was the product of an irresistible compulsion to use or consume intoxicants, or if the use or consumption of intoxicants was permitted or condoned by the employer.

An irresistible compulsion to use or consume intoxicants is regarded as an uncontrollable illness rather than a voluntary act on the part of the claimant. If the claimant suffers from such compulsion, then the discharge is not for misconduct.

A claimant who is discharged due to an irresistible compulsion to use intoxicants is not subject to disqualification under Section 1256 of the UI Code. However, he or she would be disqualified under Section 1256.5 of the UI Code. Section 1256.5(a) provides:

(1) An individual is disqualified for unemployment compensation benefits if . . . the director finds that he or she was discharged from his or her most recent work for chronic absenteeism due to intoxication or reporting to work while intoxicated or using intoxicants on the job, or gross neglect of duty while intoxicated, when any of these incidents is caused by an irresistible compulsion to use or consume intoxicants, including alcoholic beverages.

The claimant appealed the disqualification and, in an interview with the Department on April 16, admitted that he was under the influence of intoxicants on his last day of work. He also admitted that he had an irresistible compulsion to take drugs and that he had completed a rehabilitation program. Again no determination was issued with respect to Section 1256.5 after the interview of April 16.

Occasionally, a claimant is discharged for stealing money from the employer, and states that he or she needed the money to purchase illegal drugs because of an addiction. Does Section 1256.5 apply? The answer is "no." In the case of a discharge, Section 1256.5 is applicable when the claimant has been discharged for chronic absenteeism due to intoxication or reports to work while intoxicated or uses intoxicants on the job, or gross neglect of duty while intoxicated. When the discharge is the result of other actions, the issue is resolved under Section 1256.

While each individual possesses a right to personal privacy, when an employee is employed in an inherently dangerous occupation where there exits a substantial risk of harm to himself or others, as was the case with the claimant here, such right must yield to the employer's overriding concern for the safety of all employees when there is a reasonable suspicion on the employer's part that an employee may be under the influence of some intoxicant.

A.After establishing reasonable suspicion to believe that a person either has been operating a vehicle or assumes actual physical control of a vehicle while under the influence of an intoxicant, an officer may ask the person to perform the Standardized Field Sobriety Test (SFST). The SFST Report, HPD 424A form, shall be used to document the test.

Mandatory testing (breath, blood, and/or urine) shall be conducted of the operator of any vehicle involved in a collision resulting in the injury or death of any person when the officer has probable cause to believe that the operator is under the influence of an intoxicant and has committed a violation of the following HRS Sections: 707 702.5, 707 703, 707 704, 707 705, 707 706, 291E 61, 291E 61.5, or 291E 64; and the operator exhibits indicia consistent with alcohol and/or drug impairment.

A.Officers shall recover blood samples for testing of intoxicants through the use of blood evidence kits. Each booking station shall maintain a supply of Driving Under the Influence (DUI) evidence test kits and OVUII blood kits for use in collecting blood samples.

b.There is other competent evidence that the arrestee was operating or assumed actual physical control of a vehicle while under the influence of an intoxicant. Acceptable evidence shall include: observations by the officer or witnesses, lack of physical coordination by the arrestee, demeanor or conduct of the arrestee, failure of the arrestee to operate a motor vehicle or moped in a safe manner (reckless driving or inattention to driving), being involved in a motor vehicle collision, or other exigent circumstances;

C.When a test shows that the arrestee is not under the influence of an intoxicant, he or she may still be charged with reckless driving, inattention to driving, or other violations if sufficient evidence exists.HABITUALLY OVUII FELONY ARRESTS

A.In many cases, the officer investigating a collision does not accompany an injured operator of a vehicle to a medical facility. As a result, the officer does not have an opportunity to make observations that might prompt the withdrawal of blood samples for testing of intoxicants. To ensure that valuable evidence is not lost because of a lack of coordination among the investigating officers, it is essential that officers at collision scenes communicate with officers at medical facilities.

B.The following guidelines apply when a collision results in bodily injury or death and the investigating officer at the scene of the collision has probable cause to believe that the operator being transported to a medical facility has committed an offense that may require the withdrawal of blood for testing of intoxicants.

C.The following guidelines apply when a collision results in bodily injury or death and the investigating officer at the medical facility has probable cause to believe that the operator of the vehicle being treated there has committed an offense that requires the withdrawal of blood for the mandatory testing of intoxicants:

55-10-401. Driving under the influence of intoxicant, drug or drug producing stimulant prohibited Alcohol concentration in blood or breath. (a) It is unlawful for any person to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state, or on any streets or alleys, or while on the premises of any shopping center, trailer park or any apartment house complex, or any other premises that is generally frequented by the public at large, while: (1) Under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or (2) The alcohol concentration in the person's blood or breath is eight-hundredths of one percent (.08 %) or more. (b) For the purpose of this section, drug producing stimulating effects on the central nervous system includes the salts of barbituric acid, also known as malonyl urea, or any compound, derivatives, or mixtures thereof that may be used for producing hypnotic or somnifacient effects, and includes amphetamine, desoxyephedrine or compounds or mixtures thereof, including all derivatives of phenolethylamine or any of the salts thereof, except preparations intended for use in the nose and unfit for internal use. [Acts 1953, ch. 202, 1 (Williams, 10830.2); Acts 1961, ch. 63, 1; 1977, ch. 420, 1; 1979, ch. 265, 1; T.C.A. (orig. ed.), 59-1031; Acts 1980, ch. 623, 1; 1980, ch. 635, 1; 1986, ch. 842, 12; 1996, ch. 915, 1; 2002, ch. 855, 7.] Disclaimer: These codes may not be the most recent version. Tennessee may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources. 041b061a72