SonicFlyer

I don't know that the law allows them to infer or extrapolate backwards like that. It might, not sure.

The way I think that it works is that they can only hold you responsible for what you actually tested at, not what it could have potentially been prior to the test.


The sticking point that I think they are trying to make here is that the BAC rate between the breathalyzer and blood test doesn't line up... meaning the breathalyzer was in error (which is more common than one might think).


Yeah this guy should have called in sick or had a little less to drink or stopped drinking sooner... that would have avoided the entire mess. However I think his claim here may have merit.

dera

It lines up almost perfectly. Not sure why you think it doesn't? Note the time difference. 0.046 v. 0.015 in 2 hours. Perfectly normal.

Excargodog

The only reasons he didn’t get convicted is that the state law that got passed for aviation, UNLIKE the state law that governed DUIs, specified blood testing rather than blood OR breathalyzer results and that the inexperienced cop had never encountered a situation like this and simply didn’t realize the allowable blood level for aviation was only half that for driving. By the time he figured out what was going on, the pilot had lawyered up and was now refusing a BAT so it took even more time to get a judge to order the test.

The cop made a mistake, but it was a mistake in the pilots favor in that it let him avoid conviction. But he most certainly had probable cause to detain the pilot, and still enjoyed limited immunity. The pilot has little chance if prevailing in this lawsuit - or getting any major airline or most regionals to hire him at this point.

But you are absolutely wrong about the BAT and the breathalyzer not lining up, they line up quite well in this case.

rickair7777

Also worth noting for the noobs... refusal of a BAC test (of any sort, for any legit reason) requested by LE, company, or DOT will likely get your medical and/or pilot certs revoked.

Your local DUI lawyer out of the yellow pages is not going to give you good advice as far as the FAA is concerned (although that may be a lesser concern than jail).

Bahamasflyer

Are you including PAST/roadside breath unit in this?

Absolutely never refuse any other tests you listed, buttt I’m told the ONLY breath test where there is legal jeopardy involved for suspicion of DUI is a post arrest machine at the station (which undergoes very rigorous calibration etc).

A PAST is only used to further incriminate you.

While you absolutely have to report a DUI arrest to the FAA, I seriously doubt they could take certificate action in the absence of a CONVICTION.

Isn’t that the whole reason we have a court system to begin with??

Of course best thing is never drive after drinking which is why I bite the bullet and always pay the $35 for Uber

rickair7777

The FAR's don't make that distinction, a refusal is a refusal. There may or may not be case law that clarifies that.

You don't have many of the usual judicial protections under federal regs and admin law. Your certs are a privilege, not a right and they cannot jail you (only cert action and relatively small fines). If you do something really bad that gets DOJ involved (ie federal felony) then of course all the normal legal rights apply.

Also if you refuse a road-side test of any sort, most states will suspend your license, then your medical is in jeopardy under 18(v). Even fewer protections there.

As you said, best to avoid having to fight the battle at all. Totally within your control.

GogglesPisano

To be clear, FAR 91.17 concerns acting as a "crewmember of a civil aircraft." Not a car. By extension you can refuse a roadside breathalyzer if the test is in regards to driving a car.

"(c) A crewmember shall do the following:

(1) On request of a law enforcement officer, submit to a test to indicate the alcohol concentration in the blood or breath, 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."

The paragraph being referred to is below...


"(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 an alcohol concentration of 0.04 or greater in a blood or breath specimen. Alcohol concentration means grams of alcohol per deciliter of blood or grams of alcohol per 210 liters of breath."

You are correct when it comes to states suspending your license, which opens up another can of worms, as you stated.

rickair7777

Wasn't really clear but I was talking about the aviation, not automotive, context with regards to a breathalyzer.

Medical is a separate issue.

SonicFlyer

Spoke to a DA buddy of mine and we talked about the case. He explained it to me. I was wrong. This guy is in deep doodoo

dera

Refuse to blow and the FAA defaults it to a 0.15BAC. Means you have tolerance, and off to HIMS you go.