PILOT COUNSEL: UNDER THE INFLUENCE

By John S. Yodice, AOPA Pilot

Why should I have to worry about any of the federal aviation regulations dealing with alcohol and drugs? I don’t abuse alcohol. I don’t use illegal drugs. And I would never think of piloting an aircraft after legal use that could possibly affect my flying!
Almost every pilot feels this way. Cases of a pilot operating an aircraft under the influence of alcohol or drugs are rare. Yet, this shouldn’t obscure the fact that there are regulations that impose requirements even on nonabusers. These regulations warrant a refresher.

For example, if you never took a drink or a drug in your life, you could still run afoul of FAR 91.17, which prohibits a pilot from allowing a person “who appears to be intoxicated” to be carried in your aircraft. Notice that it is merely the appearance of intoxication that triggers the regulation. The FAA would not have to prove actual intoxication of a passenger to establish a violation of this provision. So, too, a pilot may not carry a person who “demonstrates by manner or physical indications” that the person is under the influence of drugs, whether legal or illegal. Actual drug use is not necessary to establish a violation.

As you would expect, there is an exception for the carriage of a medical patient, so long as the patient is under proper care. There is also the common-sense exception for the broad category of an “emergency,” covering myriad possible emergency situations. In this connection, though, pilots should be mindful that the FAA has always taken the position that the emergency defense to an enforcement case is not available where the emergency is of the pilot’s own making.

Cases of a pilot operating an aircraft under the influence of alcohol or drugs are rare. This shouldn’t obscure the fact that regulations impose requirements even on nonabusers.
Three different but overlapping prohibitions ban the use of alcohol by a “crewmember,” obviously including a pilot. A person may not act as a pilot of an aircraft within eight hours after consuming any alcoholic beverage, regardless of whether the pilot may be considered to be “under the influence” of alcohol. And more broadly, a person may not act as a pilot if he or she is under the influence of alcohol, no matter how long ago the alcohol was consumed. And finally, having 0.04 percent, or more, in a blood or breath specimen is a third prohibition.

This last prohibition ties into state and local law. The FAA itself does not test pilots for alcohol. But the FAA does require, by regulation, that a pilot submit to an alcohol test if one is requested by a law enforcement officer. This FAA requirement applies only if two conditions are met. The law enforcement officer must be authorized under local law to conduct the test or have it conducted. And the law enforcement officer must be investigating a suspected violation of state or local law that is the same or similar to the FAR provisions.

Then, if the FAA has a reasonable basis to believe the FAR ban has been violated, a pilot who has been administered an alcohol test must furnish the results to the FAA, provided the test was administered within four hours after acting or attempting to act as an aircraft crew-member. The results can be used in evidence against the pilot in an FAA enforcement action.

FAR 91.19 prohibits carrying illegal drugs aboard an aircraft. Specifically, it provides that “no person may operate a civil aircraft within the United States with knowledge that narcotic drugs, marihuana, and depressant or stimulant drugs or substances as defined in federal or state statutes are carried in the aircraft.” The pilot need not be the person responsible for the drugs on board. Knowledge that the drugs are on board is enough to establish a violation against the pilot. There is an exception if the carriage is authorized by a federal or state statute or officials.

FAR 61.15(e) will be more fully treated in next month’s column. In general, it requires that a pilot timely report to FAA’s Civil Aviation Security Division in Oklahoma City any “motor vehicle action.” A “motor vehicle action” is defined broadly to include not only a conviction of operating a motor vehicle while “intoxicated” by alcohol or a drug (or “impaired” or “under the influence”), but to include any action against a driver’s license related to alcohol or drugs, including suspension, revocation, cancellation, and denial.

All these provisions relate to private flying. Additional requirements are imposed on the airlines and other commercial operations, in the form of drug testing, alcohol abuse programs, and the like. However, the history under these commercial programs corroborates the belief that the pilot community does not have a statistically significant problem with the abuse of alcohol or drugs.