Its sad that pilots with a legitimate apeal get shot down, and this guy gets through the cracks....
10/2/2002
A recent case involving regulations dealing with the testing of pilots by law enforcement officers is certain to generate some controversy in the aviation community.
The case involved a pilot who, with his co-pilot, landed a Learjet at the Ft. Lauderdale-Hollywood International Airport following a flight from Costa Rica. While going through customs, the customs officer believed the pilot to be impaired, and reported this to a Broward County Sheriff's deputy. The deputy conducted a field sobriety test, which the pilot failed. He was arrested and transported to the Broward County Sheriff's Office testing center, known as the "BAT Facility." While there, the pilot twice underwent an Intoxilyzer breath test. Both tests indicated results of 0.00 alcohol. The pilot was then asked to undergo a blood test and a urine test, but refused both additional tests.
It is important to note that a search of the aircraft revealed residue in a plastic bag. However, nothing more conclusive was found relative to illegal drugs or contraband. The FAA brought an emergency revocation proceeding against the pilot, charging him with (1) operating an aircraft while under the influence of drugs, (2) operating an aircraft with knowledge that illegal substances were aboard the aircraft, (3) refusing to submit to an alcohol test in violation of FAR 61.16, and (4) acting as a crew member aboard an aircraft after consuming alcohol contrary to FAR 91.17.
Before the case was tried, the FAA claimed the pilot had flown the aircraft while under the influence of a drug were dropped. Also, claims that the aircraft had been operated by the pilot with knowledge that illegal drugs were aboard were abandoned. The elimination of theories of "other drugs" from the case becomes important in the legal analysis which follows.
When the case was tried before Judge Roger Mullins, the FAA sought a revocation of the airman's certificate based upon violations of FAR 61.16 [refusing to submit to a test to indicate the presence of alcohol] and 91.17(a)(1), (2), (4), all dealing with operating an aircraft while under the influence of alcohol.
Judge Mullins heard testimony from the sheriff's deputy that the pilot could not stand in a starting position, could not walk heel-to-toe, and would stop walking even though he had not been commanded to stop walking. The pilot explained that he had suffered a shoulder injury and had been given a prescription medication containing Codeine to control the pain. He said that after landing the aircraft, he took this prescription medication.
Despite this explanation, Judge Mullins found violations of FAR 61.16, and 91.17(a), (1), (2), and (4), reasoning that even though the pilot submitted to an Intoxilyzer test, his refusal to submit to a blood test or a urine test violated the regulations obliging a pilot to submit to such tests. However, Judge Mullins did find that the pilot had acted in a manner warranting a mitigation of sanction from a revocation to a suspension, since the pilot had submitted to the breath test. Accordingly, the emergency revocation was reduced to a 90 day suspension of the pilot's certificate.
Both the pilot and the FAA appealed to the NTSB. The FAA argued that the 90 day suspension was too light. The pilot argued that there was no proof he had violated either of the regulations in question, since both Intoxilyzer tests proved he was not under the influence of alcohol. The NTSB granted the pilot's appeal and denied the FAA's, finding that no sanction was warranted. The NTSB's decision hinged on the fact that the regulations that were the basis for the claims against the pilot dealt with operating an aircraft while under the influence of alcohol or refusing to submit to a test that would reveal the presence of alcohol, not drugs. The records showed that the pilot submitted to two breath tests and both test results were negative.
While the sheriff's deputy may have been authorized by Florida law to conduct an investigation of a person suspected of operating a motor vehicle while under the influence of alcohol or drugs, it did not change the fact that there was no evidence in the record that the pilot was impaired by alcohol. Although the field sobriety test was suggestive of an individual impaired in some respect, the Intoxilyzer tests demonstrated conclusively that the pilot was not impaired by alcohol. Accordingly, the NTSB was left with no choice but to reluctantly grant the pilot's appeal and find that the FAA had not proven its case.
10/2/2002
A recent case involving regulations dealing with the testing of pilots by law enforcement officers is certain to generate some controversy in the aviation community.
The case involved a pilot who, with his co-pilot, landed a Learjet at the Ft. Lauderdale-Hollywood International Airport following a flight from Costa Rica. While going through customs, the customs officer believed the pilot to be impaired, and reported this to a Broward County Sheriff's deputy. The deputy conducted a field sobriety test, which the pilot failed. He was arrested and transported to the Broward County Sheriff's Office testing center, known as the "BAT Facility." While there, the pilot twice underwent an Intoxilyzer breath test. Both tests indicated results of 0.00 alcohol. The pilot was then asked to undergo a blood test and a urine test, but refused both additional tests.
It is important to note that a search of the aircraft revealed residue in a plastic bag. However, nothing more conclusive was found relative to illegal drugs or contraband. The FAA brought an emergency revocation proceeding against the pilot, charging him with (1) operating an aircraft while under the influence of drugs, (2) operating an aircraft with knowledge that illegal substances were aboard the aircraft, (3) refusing to submit to an alcohol test in violation of FAR 61.16, and (4) acting as a crew member aboard an aircraft after consuming alcohol contrary to FAR 91.17.
Before the case was tried, the FAA claimed the pilot had flown the aircraft while under the influence of a drug were dropped. Also, claims that the aircraft had been operated by the pilot with knowledge that illegal drugs were aboard were abandoned. The elimination of theories of "other drugs" from the case becomes important in the legal analysis which follows.
When the case was tried before Judge Roger Mullins, the FAA sought a revocation of the airman's certificate based upon violations of FAR 61.16 [refusing to submit to a test to indicate the presence of alcohol] and 91.17(a)(1), (2), (4), all dealing with operating an aircraft while under the influence of alcohol.
Judge Mullins heard testimony from the sheriff's deputy that the pilot could not stand in a starting position, could not walk heel-to-toe, and would stop walking even though he had not been commanded to stop walking. The pilot explained that he had suffered a shoulder injury and had been given a prescription medication containing Codeine to control the pain. He said that after landing the aircraft, he took this prescription medication.
Despite this explanation, Judge Mullins found violations of FAR 61.16, and 91.17(a), (1), (2), and (4), reasoning that even though the pilot submitted to an Intoxilyzer test, his refusal to submit to a blood test or a urine test violated the regulations obliging a pilot to submit to such tests. However, Judge Mullins did find that the pilot had acted in a manner warranting a mitigation of sanction from a revocation to a suspension, since the pilot had submitted to the breath test. Accordingly, the emergency revocation was reduced to a 90 day suspension of the pilot's certificate.
Both the pilot and the FAA appealed to the NTSB. The FAA argued that the 90 day suspension was too light. The pilot argued that there was no proof he had violated either of the regulations in question, since both Intoxilyzer tests proved he was not under the influence of alcohol. The NTSB granted the pilot's appeal and denied the FAA's, finding that no sanction was warranted. The NTSB's decision hinged on the fact that the regulations that were the basis for the claims against the pilot dealt with operating an aircraft while under the influence of alcohol or refusing to submit to a test that would reveal the presence of alcohol, not drugs. The records showed that the pilot submitted to two breath tests and both test results were negative.
While the sheriff's deputy may have been authorized by Florida law to conduct an investigation of a person suspected of operating a motor vehicle while under the influence of alcohol or drugs, it did not change the fact that there was no evidence in the record that the pilot was impaired by alcohol. Although the field sobriety test was suggestive of an individual impaired in some respect, the Intoxilyzer tests demonstrated conclusively that the pilot was not impaired by alcohol. Accordingly, the NTSB was left with no choice but to reluctantly grant the pilot's appeal and find that the FAA had not proven its case.
