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Risk v. Eastside Beverage

June 24, 2003

THOMAS P. RISK, RELATOR,
v.
EASTSIDE BEVERAGE, RESPONDENT, COMMISSIONER OF ECONOMIC SECURITY, RESPONDENT.



Commissioner of Economic Security

Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.

SYLLABUS BY THE COURT

It is employment misconduct under Minn. Stat. § 268.095, subd. 6(a) (2002) for an employee, during working hours, to have an alcohol concentration level over the legal limit while driving his employer's vehicle.

The opinion of the court was delivered by: Minge, Judge

Affirmed

OPINION

The commissioner's representative determined that it was employment misconduct for the relator to have an alcohol concentration level over the applicable legal limit during work hours and while driving his employer's vehicle. We affirm and reject relator's claims that he could only be discharged upon conviction of the criminal offense of DWI or loss of his driver's license under the implied consent law.

FACTS

Relator, Thomas Risk, was a delivery truck driver for Eastside Beverage, respondent, from April 9, 1979, until January 17, 2002. Eastside is a distributor of alcoholic beverages. On August 9, 2001, Risk had an accident on the job while driving his delivery truck. He tested positive for alcohol in a field sobriety test, and his alcohol concentration level was tested by urinalysis at the police station. The test showed that Risk had an alcohol concentration level of.07. Risk was charged with driving a commercial vehicle with an alcohol concentration level above.04, and his commercial driver's license was suspended. Risk admitted he had been drinking the previous night and was not detoxified before going to work.

Risk informed Eastside of the accident, but did not tell them the results of the alcohol concentration test. The record is unclear as to whether Risk actually knew the test results at the time he informed Eastside of the accident. Eastside's mechanic, who was called to the scene of the accident, informed Eastside that the police took Risk to the station for implied consent procedures.

Eastside has a "Letter of Understanding" with the union that provides for scaled discipline for initial and subsequent DWI offenses. Eastside testified that this agreement applied only to off-the-job offenses. Eastside was not initially aware of the alcohol test and placed Risk in a non-driving position in its warehouse. Eastside testified that it did so because of Risk's 22 years with the company and because they wanted more time to investigate Risk's involvement in the accident. Eastside sent a letter to Risk's union representative indicating that the decision to allow him to work in the warehouse was "without prejudice to any ultimate decision it may make regarding his status."

On September 14, 2001, Risk's commercial driver's license was revoked pending judicial review. On October 26, 2001, Risk pleaded guilty to violation of Minn. Stat. § 169A.20, subd. 1(6) (2000), driving a commercial vehicle with an alcohol concentration level above.04, and to careless driving in violation of Minn. Stat. § 169.13 (2000). This guilty plea was contingent upon the district court sustaining the revocation at the implied consent hearing and gave Risk the option to withdraw the plea if the district court rescinded his license revocation at the implied consent hearing.

On January 15, 2002, Eastside's attorney obtained the results of Risk's alcohol concentration test and a copy of the plea agreement. Two days later, Eastside terminated Risk's employment. Risk applied for unemployment benefits.

On February 26, 2002, the district court in the implied consent proceeding found that Risk's alcohol concentration level was.07 at the time of the August 9 accident, but rescinded the revocation of his commercial driver's license due to clerical errors of the arresting officer. The district court reduced the criminal charge ...


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