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Fiandach & Fiandach (Rochester NY)

585.244.8910

Fiandach & Fiandach - New York's First and Western New York's Only DWI Defense Specialist.
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Representing a Pilot

February 14, 2008

We have a rule at this end: if someone asks you a question, you answer it; but if someone else asks you the same question, you learn it. So it is with today's topic. Aside from having represented private and commercial pilots several times, over the past few weeks we've been asked on several occasions what ramifications, if any, exist. Now, before blithely dismissing this lead note and turning to the Recent Decisions, ask yourself, when was the last time you asked a client if he or she had a license to fly?

Reporting Requirements

Key to a resolution of this matter are what are commonly referred to as the FAA's reporting requirements. The FAA becomes aware of criminal convictions generally and administrative driver license actions against certified pilots in particular through several methods. First, all certified pilots are under an affirmative obligation, pursuant to the Federal Aviation Regulations (hereinafter "FAR"), to report any alcohol convictions related to the operation of a motor vehicle, including all court or administrative actions resulting in the cancellation, suspension or revocation of a driver's license for an offense related to alcohol. Furthermore, every year a pilot is required to go through a medical certification process. This point of contact with the FAA is also used by the agency as a time to report any reportable offenses. The pilot medical certificate application requires mandatory disclosure of all motor vehicle alcohol convictions; all court or administrative actions resulting in a driver's license cancellation, suspension or revocation; and all alcohol evaluations, counseling or education sessions must be reported. Also, all non-traffic criminal convictions must also be reported. Further, as part of the medical application, the pilot must sign a release allowing the FAA to review the pilot's National Driver Register for traffic convictions. (See, FAR 67.3).


Pursuant to the FAR ' 61.15(c)(1)(e) (14 CFR part 61.15), a pilot is also required to file a written report with the FAA regarding convictions of Federal or State statutes 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. The written report must be filed within 60 days of any such conviction. In and of itself, failure to file such a written report is grounds for both suspension (Administrator v. Cynthia Jane Wilson, NTSB Order No: EA-4314 (1995) and revocation of an airman's pilot certificates, under FAR ' 61.15).

Not merely content with a report of convictions, perhaps the widest swath is cut by FAR 61.15(c)(2). This requires a pilot to file a written report with the FAA regarding any cancellation, suspension or revocation of a driver's license for a cause related to the operation of a motor vehicle while intoxicated, impaired or under the influence of alcohol or a drug. It is this provision that creates what may be the greatest trap for the unwary. Counsel's best efforts including an acquittal notwithstanding, suspension pending prosecution under Vehicle and Traffic Law ' 1193(2)(e)(7) becomes a reportable event, as does failure to submit to a blood alcohol test if such refusal results in a driver's license cancellation, suspension or revocation.


In addition to the mandatory reporting requirements imposed by the Federal Aviation Regulations, the FAA certified pilot also faces additional mandatory reporting requirements as part of his or her regular pilot medical certification process. The holder of an FAA Second Class Medical Certificate, for instance, is required to undergo a full FAA physical before an FAA Designated Medical Doctor each calendar year. Part of the medical certification process is the filing of a written report of all alcohol convictions related to operation of a motor vehicle; court or DMV administrative actions relating to alcohol which result in the cancellation, suspension or revocation of a driver's license; all non-traffic criminal convictions; all alcohol evaluations, counseling or education sessions; and all visits to physicians or health care providers within the past three years must be reported annually to the FAA. Additionally, at the time of the physical, the pilot executes a release authorizing the FAA to review the pilot's National Driver Register for any traffic related convictions. Needless to say, under these mandatory reporting requirements, any falsification or intentional omission of information will result in revocation of all FAA pilot and medical certificates. (See, FAR 61.15(f)(2), 67.20(a)(1) and Department of Transportation, Federal Aviation Administration, Order Number 2150.3A, Compliance Enforcement Program, Appendix 4, FAA Enforcement Sanction Guideline Table.) Thus, in Administrator v. Ted Michael Shrader, NTSB Order No. EA-3018 (1989), the revocation of an airman's pilot, instructor and medical certificates was affirmed on appeal where the airman had failed to disclose a drunk driving conviction on his medical application. In Administrator v. Paul Dolph, NTSB Order No. EA-3031 (1989), Dolph, the board affirmed the revocation of an airman's pilot and medical certificates for failure to include material facts on his medical application. The airman's claim that his omission of fact was a mistake done without intent, did not preclude revocation of all certificates. Finally, in Administrator v. Thomas F. Twomey, NTSB Order No. EA-2370 (1986), intentional failure to report criminal convictions on the medical application was found to constitute sufficient grounds for revocation of all pilot and medical certificates.

Sanctions


In the event that a licensed pilot is convicted of DWI or DWAI, he or she will be required to file a written report with the FAA pursuant to FAR ' 61.15(c)(1)(e). This report of a conviction relating to drugs or alcohol will thereafter trigger an FAA investigation and certificate enforcement action. (Administrator v. Ralph E. Johnson, NTSB Order No. EA-2844 [1988].) As a result of any DWI or DWAI conviction, any pilot and additional certificates such as flight instructor certificates and ratings will be suspended. Should the pilot hold an FAA Designated Pilot Examiner Certificate, such will be revoked, most probably for life. Further, business related certificates such as charter airline certificates will be revoked. Finally, the pilot's Medical Certificate will be denied by the FAA physician. Without medical certification, the pilot cannot exercise the privileges of his pilot, flight instructor and examiner certificates. (Administrator v. Klaus Peter Roehr, NTSB Order No. EA-3206 (1990) [An airman cannot exercise the privileges of his certificates without a valid medical certificate.]

Additionally, without pilot and flight instructor certificates, one cannot flight instruct, nor can he or she act as chief instructor or chief pilot of any flight school operation. Likewise, any charter airline business relying exclusively upon your client's ratings would immediately be forced to cease operation. This is because individuals acting in such a capacity are issued an FAA part 135 Air Taxi/Commercial Operator Certificate (ATCO). Both of these positions require that the holder be a properly licensed and rated pilot with a current pilot medical certificate. The FAA can revoke a part 135 ATCO certificate if the business does not maintain in its employ, at all times, a qualified and licensed Director of Operations and Chief Pilot (Administrator v. Canfield Aviation, Inc. NTSB Order No. EA-2654 [1988]).

 

Effects of Driver's License Cancellation, Suspension or Revocation.


Essential to effective representation of a pilot is an understanding that a conviction for an alcohol related operating offense is not the only means through which pilot certification can be lost. While we will summarize the Federal regulations in some detail below, suffice it to say that at a minimum, any revocation or suspension of a pilot's privilege to operate a motor vehicle as a result of an alcohol related operation will adversely affect the pilot's status as well.

Pursuant to FAR 61.15(c)(2), a pilot must file a written report with the FAA regarding any suspension or revocation of his driver's license privileges if the cause of the suspension or cancellation is alcohol related. Further, this requirement is mandatory irrespective of whether the suspension or revocation is by a Court or administrative agency order, thus, suspension pending prosecution under Vehicle and Traffic Law ' 1193(2)(e)(1) (two in five), ' 1193(2)(e)(7) (per se suspension pending prosecution) and ' 1194(2)(b)(3) (refusal to submit). In connection with the latter basis, counsel must be careful. The foregoing section provides that the license to operate shall be suspended at arraignment pending the holding of a hearing by the Department of Motor Vehicles. FAR 61.15 makes no distinction between a revocation and a suspension. Thus, if your client is suspended at arraignment for his or her refusal to submit to a blood alcohol test, this suspension must be reported to the FAA regardless of the outcome of the underlying criminal charges. (See, FAA Chief Counsel Interpretations, 1990-38 and 1991-31). However, it should also be noted that no report is necessary if the alcohol test refusal does not result in a driver's license cancellation, suspension or revocation.

An additional point of consideration is the means in which the Regulations mandate reporting. Not only is the requirement to report important to your client, but the time frames set forth therein may be of a dispositive nature to your client and are well-worth reviewing. Due to their relative unavailability in the average small to medium size law office, 14 C.F.R. ' 61.15, current through September 1, 1997, has been appended as an endnote to this article.[i]

 

Alcohol Evaluations, Counseling or Educational Classes.


As if the foregoing isn't enough, the medical application, which must be completed by the licensed pilot, requires that pilots obtaining their Medical Certificates must file a written report of all alcohol evaluations, counseling, treatment or education sessions attended. In the event that your client is subject to a single alcohol evaluation or counseling session, or should he or she be required to attend any alcohol education classes, these would have to be reported to the FAA. As such evaluation or counseling would stem from an alcohol related matter, an FAA enforcement action against the pilot would result.

In addition, note should be made of the fact that under the Federal Aviation Regulations, alcoholism or alcohol abuse are grounds for revocation of an airman's medical certificate. A conviction on a DWI or DWAI therefore, when coupled with a single alcohol counseling session, will be used by the FAA as evidence of alcoholism and would result in medical certificate denial and an FAA action. Even is the airman were to prevail at such a hearing, the medical certificate would be delayed six to twelve months. We have been informed that recent medical certificate denials have taken as long as two years to resolve before the National Transportation Safety Board.

Non-Alcohol Related Traffic Convictions.


By now it should be abundantly clear due to the mandatory license suspension and revocation requirements of Vehicle and Traffic Law ' 1193, irrespective of pre-trial treatment of the various suspension issues, resolution, if at all possible, must be an acquittal or a non-alcohol related operating offense. This begs the question as to whether a non-alcohol related operating offense which services the Vehicle and Traffic Law ' 1192(10)(a) will nonetheless mandate the mandatory FAA reporting requirements. Fortunately, traffic convictions that do not involve alcohol or drugs, need not be reported to the FAA. Even so, this does not mean that the FAA will not become privy to the resolution. As noted above, during the annual medical certification process, however, the pilot executes a release allowing the FAA to search the pilot's National Driver Register (See, FAR 67.3). Thereafter, the FAA presumably reviews all traffic convictions during this medical renewal process. While a lot of guidance does not exist in this area, a plea to a charge of Reckless Operation of a Motor Vehicle has been held to be a non-reportable traffic conviction under FAR 61.15 (See, FAA Chief Counsel Interpretation, 1991-31). What if, however, a charge of reckless driving is taken in satisfaction of an alcohol related operating offense. Will this factor alter the Agency's analysis? Information presently available seems to indicate that it will not. Chief Counsel Interpretation 1991-31 specifically addressed whether a report was required for a reckless driving conviction entered as a plea bargain to an underlying alcohol influenced operating offense. The FAA Chief Counsel determined such a charge does not have to be reported under FAR 61.15. Be aware, however, any driver's license suspension, cancellation or revocation must be reported. Further note that if a Reckless Driving conviction is discovered through a National Driver Register search, an FAA investigation could commence. If, however, a plea to a charge of Reckless Driving is taken in satisfaction with the charge thereafter being adjourned in contemplation of dismissal (an ACD), such would result in a non-actionable offense by the FAA. Since the charge is dismissed pursuant to the ACD agreement, the charge will not appear as a reportable traffic conviction on the pilot's driver's license. The nature and extent to the fine or punishment on the Reckless Driving charge is irrelevant, except that it cannot include a requirement for alcohol evaluations, counseling or education, nor a driver's license cancellation, suspension or revocation.

Practical Considerations


This lead note is important, not because you are representing a pilot, but because you might. Representing a pilot requires that you consider each and every consequence before you act. Take for instance the decision as to whether to submit to a chemical test. While our usual opinion is that the refusal presents a more defensible position, when your client is a pilot, refusal to submit to a chemical test will result in a suspension at arraignment and accordingly a reportable offense which will result in suspension and probable revocation of the license to fly. Should you find yourself representing a pilot who has refused to submit, your ability to avoid a reportable offense will depend upon your capability to adjourn the arraignment. Why? Because pursuant to ' 1194(2)(b)(3), the initial suspension will take place at arraignment. Since this suspension will become a reportable offense irrespective of the outcome of the administrative hearing, you must seek an adjournment of the arraignment, hence the suspension to discuss the matter with the prosecution.

If your client is alleged to have failed a chemical test, Vehicle and Traffic Law ' 1193(2)(e)(7) will naturally impose a suspension pending prosecution at arraignment. Since a hardship license is of no use in avoiding a FAA reportable offense, preservation of the license to fly will require that the arraignment be adjourned pending negotiations with the District Attorney's Office.

Negotiations likewise present their own set of difficulties. In the usual instance the prosecution and court will require an alcohol evaluation. Bear in mind that such an evaluation will likewise become a reportable offense. If your client holds a part 135 (charter airline) certificate you may get a bit of a break since, pursuant to 14 CFR part 135.251, all such holders and their employees are subject to independent and mandatory drug and alcohol testing. In such situations, you may be able to argue that a specific evaluation is unnecessary.


Finally, don't loose sight of the obvious. The essential document is the medical application. To avoid having a successful negotiation or defense go for naught, make sure your client understands the significance of this document and review potential hot spots with him or her.


 

 



[i].14 C.F.R. ' 61.15 Offenses involving alcohol or drugs.

 

(a) A conviction for the violation of any Federal or State statute relating to the growing, processing, manufacture, sale, disposition, possession, transportation, or importation of narcotic drugs, marijuana, or depressant or stimulant drugs or substances 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 final conviction; or

 

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

 

(b) Committing an act prohibited by ' 91.17(a) or ' 91.19(a) of this chapter is grounds for:

 

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

 

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

 

(c) For the purposes of paragraphs (d), (e), and (f) of this section, a motor vehicle action means:

 

(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 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.

 

(d) 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.

 

(e) Each person holding a certificate issued under this part shall provide 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 must 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.

 

(f) Failure to comply with paragraph (e) of this section 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 motor vehicle action; or

 

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



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