AVIATION LAW: DWI & DUI FOR PILOTS AND AVIATORS, by Pilot and Attorney, Steven F. Groce, 417-883-4950 Springfield, Missouri

WELCOME TO THE SITE. My name is Steven F. Groce. I am an Attorney engaged in the practice of Criminal Defense, including Driving While Intoxicated, and Driving Under the Influence of Drugs. I am also a Pilot, with a Commercial Airman Certificate, and the owner of a Pitts Special S2-C Aerobatic Airplane. If I am not busy defending or counseling clients, you will usually find me out flying; and perhaps challenging the local Birds of prey to some new unusual attitude of flight. Going straight up while rolling, doing Snap rolls at the top of a Loop (called an: Avalanche), or doing inverted spins. It is the passion of flight that each of us, as Aviators, shares and enjoys in his or her own way.

Steven F. Groce, Atty., represents Pilots in regard to DWI and DUI charges within the City or State Courts, as well as in FAA enforcement actions; and is also a Panel Attorney for the AOPA (Aircraft Owner’s and Pilot’s Association), for the AOPA Legal Services Plan.

No time to be impaired, when every second counts.

As pilots, we are all aware that Flying is an activity that requires each of us to be as close to 100 % every time we get in an Airplane. Most of the time, we rarely hit that 100 % mark. It may be a lack of sleep, recent cold or illness, stress and/or distractions from work or other personal issues, and probably about 1000 other things that could be added to the list. We realize that we are only human, and much of these factors are just part of life, and some beyond our control. However, part of the pre-flight process that we should go through, perhaps before we even go to the airport, is to ask ourselves this one basic question: Is it a good day for Steve Groce, or for you, to fly? I can remember days when the weather was so perfect, it was a day made for flying; yet because of a lack of sufficient rest, having to make that no go decision. Does that mean that we shouldn’t fly at all if we don’t feel 100%? The answer is no, not necessarily. We rarely will hit 100%. What we must do, however, is at least ask ourselves the question. Establish your own personal physical and mental minimums; and evaluate yourself, just like you would the weather.

In regard to Alcohol and Drugs, the FAA has very specific rules. As pilots, we must be familiar with these rules in order to avoid the suspension and or revocation of our pilot certificates. Even as a licensed Pilot and an Attorney, some of these rules are not as obvious as one would assume. Even experienced and conscientious pilots have found themselves in hot water with the FAA, because they simply did not understand the requirements of the FARs. (Federal Aviation Regulations).

FITNESS FOR FLIGHT:

The FARs defines Fitness For Flight, in regard to Alcohol, as follows: Pilots are prohibited from performing crewmember duties within 8 hours after drinking any alcoholic beverage or while under the influence of alcohol. 8-1-1(3)(D)(2) also states that, “however, due to the slow destruction of alcohol, a pilot may still be under the influence 8 hours after drinking a moderate amount of alcohol. Therefore, an excellent rule is to allow at least 12 to 24 hours between ‘bottle to throttle,’ depending on the amount of alcohol beverage consumed.” What can be be gleaned from this, is that 8 hours is the statutory minimum time to wait; however, it is obvious that anything less than 12 and perhaps 24 under certain circumstances may be frowned upon. In regard to Medication, (other drugs prescription or otherwise) the FARs are a little more vague. 8-1-1(3)(C)(2) states: “The FARs prohibit pilots from performing crewmember duties while using any medication that affects the faculties in any way contrary to safety.” The regulation does not define an exact time from use of a medication before Operation.

Part 91.17 (a) No person may act or attempt to act as a crewmember of a civil aircraft-

(1) Within 8 hours after the consumption of any alcoholic beverage;

(2) While under the influence of alcohol;

(3) While using any drug that affects the person’s faculties in any way contrary to safety; or

(4) While having .04 percent by weight or more alcohol in the blood.

Based on this Regulation, it can be determined that a crewmember not only must wait a minimum of 8 hours after consumption, but also must not operate with a Blood Alcohol level of .04 or more.

NOTE: Where the definition for Fitness For Flight, did not define exactly what “under the influence” means, Part 91.17(a) does define a Statutory limit in 91.19(a)(4) of less than .04. Remember though, that unlike the rules pertaining to the operation of a Motor vehicle, in which there is no set time period to wait before Operation after Consumption, this is not true for pilots. A pilot would be in violation even if he or she only tested .01, unless the 8 hour minimum time period requirement following consumption had lapsed.

Remember also that less than .04 is not necessarily defined as being below the “legal limit,” as normally defined in laws pertaining to motor vehicles. Subsection (a)(2) prohibits operation “while under the influence.” It is a separate paragraph within the regulation, and leaves plenty of room for argument on either side.

PASSENGERS: Part 91.17(b) must also be considered. Again, this is different from the rules pertaining to Motor Vehicles. “Except in an emergency, no pilot of a civil aircraft may allow a person who appears to be intoxicated, or who demonstrates by manner or physical indications that the individual is under the influence of drugs (except a medical patient under proper care) to be carried in that aircraft.” Basically, you can, and will be violated, for even taking a passenger flying who is under the influence. NOTE: No Legal limit is set either. If the passenger “appears” to be intoxicated, or acts in a way indicating that the individual is under the influence, an enforcement action could be instigated. MORAL OF THE RULE: Be careful who you choose to take flying, and be aware of that person’s condition. How many times have you heard someone say: “Oh, I could do it if I had a couple of drinks first.” Leave that person on the ground.

FAR 91.17 CHEMICAL TESTING: Here we find a section of the FARs very similar to the laws typically found pertaining to Motor Vehicles on Terra Firma. Part 91.17(c) states: “A crewmember shall do the following: (1) On request of a law enforcement officer, submit to a test to indicate the percentage by weight of alcohol in the blood, when

(i) The law enforcement officer is authorized under state or local law to conduct the test or to have the test conducted; and

(ii) The law enforcement officer is requesting submission to the test to investigate a suspected violation of State or local law governing the same or substantially similar conduct prohibited by paragraph (a)(1), (a)(2), or (a(4) of this section.”

91.17(c)(2) provides for a time limitation ????????? to submit to said test of 4 hours. This is far greater than the time period allowed to drivers of Motor vehicles, where in Missouri, for instance, Case law has defined the maximum time period a person can delay testing to 20 minutes. After this time, if the person requested to take the test attempts to delay testing, or refuses for any reason, they can be issued a Refusal suspension notice.

PENALTIES FOR REFUSAL: Part 61.16 “A refusal to submit to a test to indicate the prcentage by weight of alcohol in the blood, when requested by a law enforcement officer in accordance with 91.17(c) of this chapter, or a refusal to furnish or authorize the release of the test results requested by the Administrator in accordance with 91.17(c) or (d) of this chapter, is grounds for:

(a) Denial of an application for any certificate, rating, or authorization issued under this part for a period of up to 1 year after the date of that refusal; or

(b) Suspension or revocation of any certificate, rating, or authorization issued under this part.

REPORTING REQUIREMENTS: Perhaps the most common problem that gets pilots into trouble with the FAA, is the failure to report violations. Many pilots, quite naturally, make the mistake of believing that their reporting duty only extends to violations that in some way involve airplanes or flying. In reality, as far as the FAA is concerned, what a pilot does while on the ground, involving Driving While Intoxicated or Driving Under the Influence of Drugs, is just as important, and requires very strict reporting requirements.

NOTE: For Drug violations, Part 61.15(a) provides that even the mere possession of an illegal drug, including Marijuana, which results in a conviction, whether or not related to the operation or control of an aircraft in any way, is grounds for Denial, and/or Suspension or Revocation for up to 1 year after the date of final conviction.

DEFINITION: For purposes of Part 61.15 (d) (e) and (f), a Motor Vehicle action is defined as:

(1) A conviction after November 29, 1990, for the violation of any Federal or State statute relating to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug;

(2) The cancellation, suspension, or revocation of a license to operate a motor vehicle after November 29, 1990, for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug; or

(3) The denial after November 29, 1990, of an application for a license to operate a motor vehicle for a cause related to the operation of a moptor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug.

WHERE AND HOW TO REPORT: Part 61.15(e) “Each person holding a certificate issued under this part, shall privide a written report of each motor vehicle action to the FAA, Civil Aviation Security Division (AMC-700), P.O. Box 25810, Oklahoma City, OK. 73125, not later than 60 days after the motor vehicle action. The report shall include:

(1) The person’s name, address, date of birth, and airman certificate number;

(2) The type of violation that resulted in the conviction or the administrative action;

(3) The date of the conviction or administrative action;

(4) The State that holds the record of conviction or administrative action, and

(5) A Statement of whether the motor vehicle action resulted from the same incident or arose out of the same factual circumstances related to a previously reported motor vehicle action.

NOTE: Often, following an arrest for DWI or DUI, in addition to the Criminal Case filed in the Court system, the individual also receives some type of Administrative action in the form of a license suspension. No conviction has occurred on the Criminal case, which is a separate prosecution in the Court system. Generally, the separate, and more immediate Administrative action occurs either because the individual took the chemical test and tested over the legal limit, or the individual refused the chemical test altogether. Either circumstance will normally result in a separate Administrative action, in the form of a Driver’s license suspension, which must also be reported within the required 60 day time period to the FAA. Therefore, many cases will require the filing of not one, but two written reports to the FAA, and each must be reported within the required 60 days. One within 60 days of the Administrative action, and the other within 60 days of any possible subsequent conviction on the criminal prosecution on the DWI or DUI case.

Finally, it should be noted that for purposes of penalties from the FAA, that although both the Administrative action, as well as any subsequent conviction must be reported, Part 61.15(d) provides that if both occurred from the same incident, or arose out of the same factual circumstances, they will not be treated by the FAA as separate actions for penalty purposes. This is a very important point, because this section also sets forth the rules for penalties for separate motor vehicle actions which occur within a certain time period.

PART 61.15(d) (1) and (2): Except for a motor vehicle action that results from the same incident or arises out of the same factual circumstances, a motor vehicle action occurring within 3 years of a previous motor vehicle action is grounds for:

(1) Denial of an application for any certificate, rating, or authorization issued under this part for a period of up to 1 year after the date of the last motor vehicle action; or

(2) Suspension or revocation of any certificate, rating, or authorization issued under this part.

FAILURE TO COMPLY: Part 61.15(f) states that failure to comply (report), is grounds for denial, suspension or revocation, of any authorization, certificate or rating for a period of up to 1 year, after the date of the motor vehicle action. NOTE: Although a literal reading of the statute might imply that the a penalty or denial may only be imposed, if done so within a year after the motor vehicle action, this is in fact not the case. Numerous cases have ruled that a penalty may be imposed even after 1 year from the date of the motor vehicle action in circumstances where the FAA did not immediately learn of the action because of the Airman’s failure to report.

Naturally, as pilots, we want to try to avoid doing anything that could result in a violation. However, it cannot be stressed enough, that when a violation does occur that requires reporting, it is often the failure to make the required report to the FAA that will result in a suspension, revocation or denial, rather than the occurence of the actual action to be reported.

PILOT AND AVIATION LINKS:

1. Missouri Pilot’s Association http://www.mopilots.org/

2. Missouri Pilot’s Association Springfield Chapter http://www.mopilots.org/sgf/index.htm

3. Flight Instruction Pro Flight Air Springfield Missouri http://www.proflightair.com/

4. Worldwide Aircraft Springfield Missouri http://www.worldwide-aircraft.com/

5. SPRINGFIELD FLYING SERVICE, INC. DOWNTOWN AIRPORT
2546 E DIVISION ST
SPRINGFIELD, MO 65803-5138

6. EAA CHAPTER 821 SPRINGFIELD MISSOURI http://eaa821.com/

7. AOPA LEGAL SERVICES PLAN https://pilot-protection-services.aopa.org/

8. KANSAS CITY FLIGHT STANDARDS DISTRICT OFFICE KC FSDO https://www.faa.gov/about/office%5Forg/field%5Foffices/fsdo/mci/

9. LINK TO MOVIE: SU-35 AND FAMOUS COBRA MANEUVER http://bemil.chosun.com/movie%20link/SU-35.wmv

10. EAA Chapter 32 St. Louis, MO. http://www.eaa32.org/

11. EAA Chapter 1218 South Central Ozarks (Willow Springs, MO.) https://www.1218.eaachapter.org/