Pilot sues Cops over failed Breathalyzer
#1
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Pilot sues Cops over failed Breathalyzer
Skywest F/O was removed from the cockpit by police and blew just over 4%, but a blood test put him at 1.5%:
https://www.usatoday.com/story/trave...st/2310176001/
A former SkyWest pilot filed a federal defamation lawsuit Tuesday against the two South Dakota police officers who arrested him for failing a breathalyzer test, saying he has been unable to find work since the 2016 incident despite being cleared by a blood test.
According to his complaint, Russell Duszak says Transportation Safety Administration officers reported him to airport police at Rapid City Regional Airport on Oct. 26, 2016, after an agent reported she "may have smelled the odor of alcohol" on a pilot going through security.
Less than 15 minutes later, Officer Paul Hinzman boarded Duszak's aircraft and entered the cockpit, where the Duszak was in the co-pilot seat performing pre-flight checks.
"Mr. Duszak was alone on the flight deck and functioning in his assigned capacity, as First Officer of the aircraft, with zero impairment," the complaint states, adding that Hinzman escorted him off the plane to a private room for questioning.
Duszak, a Utah resident, claims Hinzman never performed any field sobriety tests prior to detaining him, reporting only that he detected a slight odor of alcohol and redness in the pilot's eyes. The pilot says that he requested a blood test immediately upon being detained but was denied.
At that point, he says Hinzman called for backup and Officer Jerred Younie responded, arriving at around 10:48 a.m. CST, two-and-a-half hours into Duszak's detention.
Younie administered a Breathalyzer test, which registered his blood alcohol content (BAC) as .046, which is over the FAA's limit for pilots and other sensitive airline staff.
Younie did not arrest him at that point, the complaint says, because he "was confused about the law." Instead, he kept the pilot detained in the room while he left the airport to seek guidance from his bosses.
He returned around 12:30 p.m. CST, arrested Duszak for "attempting to operate an aircraft above .04 BAC based solely on a positive PBT (portable breath test) result with no other evidence" and took him to the police station, where he obtained a search warrant for a blood test, according to the lawsuit.
The lawsuit asserts Younie drew Duszak's blood at approximately 12:48 p..m., two hours after the breathalyzer test and nearly five hours after the TSA officer said she smelled alcohol on him.
The pilot claims that Younie charged and jailed him before receiving the result of the blood test, which came back two days later. Toxicology results put his at BAC .015, below the FAA limit, prompting prosecutors to dismiss the charges.
But the damage had already been done, Duszak's lawsuit claims. It accuses Hinzman and Younie of defaming and slandering his personal and professional reputations in the media.
According to the complaint, the police "fed the media the false narrative that Mr. Duszak was 'drunk' and that 'safety of passengers' was at issue. Defendants used the media reports as a way to bolster their arrest statistics and bolster their image that they protected the public from a 'drunk' pilot.' "
As a result, Duszak says SkyWest, his employer of more than 10 years, fired him two days later on Oct. 28 and he has not been able to find work as a pilot since then. In the meantime, he has "suffered substantial financial injuries" including the legal costs incurred in fighting the criminal charge as well as as defending his pilot certificate.
USA TODAY has contacted SkyWest to ask why Duszak was fired despite passing his blood test and having the criminal charges dismissed. The airline has not responded.
Duszak, who is seeking a jury trial and compensatory and punitive damages, is suing on the grounds of illegal detention, malicious prosecution, stigma and due process claim.
After reading of the lawsuit, Rapid City Police Chief Karl Jegeris questioned Duszak's tactics on Twitter.
"I have a high degree of respect for airline pilots, but I insist they be completely sober when flying aircraft out of RAP," Jegeris wrote, referring to the airport code for Rapid City. "This pilot blew 0.046 BAC (blood alcohol content) on a portable breathalyzer test. Suing the Police Officers involved is absurd."
it's unclear whether Younie and Hinzman are still with the Rapid City Police Department or why the department itself was not named in the suit.
USA TODAY has requested comment from Jegeris as well as Duszak's attorney, Troy K. Walker, who did not immediately respond.
https://www.usatoday.com/story/trave...st/2310176001/
A former SkyWest pilot filed a federal defamation lawsuit Tuesday against the two South Dakota police officers who arrested him for failing a breathalyzer test, saying he has been unable to find work since the 2016 incident despite being cleared by a blood test.
According to his complaint, Russell Duszak says Transportation Safety Administration officers reported him to airport police at Rapid City Regional Airport on Oct. 26, 2016, after an agent reported she "may have smelled the odor of alcohol" on a pilot going through security.
Less than 15 minutes later, Officer Paul Hinzman boarded Duszak's aircraft and entered the cockpit, where the Duszak was in the co-pilot seat performing pre-flight checks.
"Mr. Duszak was alone on the flight deck and functioning in his assigned capacity, as First Officer of the aircraft, with zero impairment," the complaint states, adding that Hinzman escorted him off the plane to a private room for questioning.
Duszak, a Utah resident, claims Hinzman never performed any field sobriety tests prior to detaining him, reporting only that he detected a slight odor of alcohol and redness in the pilot's eyes. The pilot says that he requested a blood test immediately upon being detained but was denied.
At that point, he says Hinzman called for backup and Officer Jerred Younie responded, arriving at around 10:48 a.m. CST, two-and-a-half hours into Duszak's detention.
Younie administered a Breathalyzer test, which registered his blood alcohol content (BAC) as .046, which is over the FAA's limit for pilots and other sensitive airline staff.
Younie did not arrest him at that point, the complaint says, because he "was confused about the law." Instead, he kept the pilot detained in the room while he left the airport to seek guidance from his bosses.
He returned around 12:30 p.m. CST, arrested Duszak for "attempting to operate an aircraft above .04 BAC based solely on a positive PBT (portable breath test) result with no other evidence" and took him to the police station, where he obtained a search warrant for a blood test, according to the lawsuit.
The lawsuit asserts Younie drew Duszak's blood at approximately 12:48 p..m., two hours after the breathalyzer test and nearly five hours after the TSA officer said she smelled alcohol on him.
The pilot claims that Younie charged and jailed him before receiving the result of the blood test, which came back two days later. Toxicology results put his at BAC .015, below the FAA limit, prompting prosecutors to dismiss the charges.
But the damage had already been done, Duszak's lawsuit claims. It accuses Hinzman and Younie of defaming and slandering his personal and professional reputations in the media.
According to the complaint, the police "fed the media the false narrative that Mr. Duszak was 'drunk' and that 'safety of passengers' was at issue. Defendants used the media reports as a way to bolster their arrest statistics and bolster their image that they protected the public from a 'drunk' pilot.' "
As a result, Duszak says SkyWest, his employer of more than 10 years, fired him two days later on Oct. 28 and he has not been able to find work as a pilot since then. In the meantime, he has "suffered substantial financial injuries" including the legal costs incurred in fighting the criminal charge as well as as defending his pilot certificate.
USA TODAY has contacted SkyWest to ask why Duszak was fired despite passing his blood test and having the criminal charges dismissed. The airline has not responded.
Duszak, who is seeking a jury trial and compensatory and punitive damages, is suing on the grounds of illegal detention, malicious prosecution, stigma and due process claim.
After reading of the lawsuit, Rapid City Police Chief Karl Jegeris questioned Duszak's tactics on Twitter.
"I have a high degree of respect for airline pilots, but I insist they be completely sober when flying aircraft out of RAP," Jegeris wrote, referring to the airport code for Rapid City. "This pilot blew 0.046 BAC (blood alcohol content) on a portable breathalyzer test. Suing the Police Officers involved is absurd."
it's unclear whether Younie and Hinzman are still with the Rapid City Police Department or why the department itself was not named in the suit.
USA TODAY has requested comment from Jegeris as well as Duszak's attorney, Troy K. Walker, who did not immediately respond.
#2
I hope he wins. Breathalyzers are notoriously unreliable.
Assuming the timing above is accurate, if he had a .015 at the blood test 2 hours after the breathalyzer, his BAC at the breathalyzer should have been around .03... well below the .04 limit.
Assuming the timing above is accurate, if he had a .015 at the blood test 2 hours after the breathalyzer, his BAC at the breathalyzer should have been around .03... well below the .04 limit.
#3
You need to blow below .02, because that's apparently where the equipment becomes unreliable (and why airlines use that threshold). If there's any doubt about that, stay at the hotel... everyone should have got that memo by now.
Last edited by rickair7777; 10-13-2019 at 02:28 PM.
#4
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Joined APC: Sep 2017
Posts: 627
What really worries me is how so many ordinary snack foods like brownies are now laced with MJ, especially in states where it’s legal. What the hell is one to do if accidentally consuming one of them and later feeling the effects.
Call out sick and the lawyer up?
Of course I’ll never eat snack food that I’ve not personally unpackaged, but this is something many people will overlook and I’m sure it only a matter of time before this happens to someone in the industry
I hate to sound paranoid, but you know how the saying goes.....
Call out sick and the lawyer up?
Of course I’ll never eat snack food that I’ve not personally unpackaged, but this is something many people will overlook and I’m sure it only a matter of time before this happens to someone in the industry
I hate to sound paranoid, but you know how the saying goes.....
#5
What really worries me is how so many ordinary snack foods like brownies are now laced with MJ, especially in states where it’s legal. What the hell is one to do if accidentally consuming one of them and later feeling the effects.
Call out sick and the lawyer up?
Of course I’ll never eat snack food that I’ve not personally unpackaged, but this is something many people will overlook and I’m sure it only a matter of time before this happens to someone in the industry
I hate to sound paranoid, but you know how the saying goes.....
Call out sick and the lawyer up?
Of course I’ll never eat snack food that I’ve not personally unpackaged, but this is something many people will overlook and I’m sure it only a matter of time before this happens to someone in the industry
I hate to sound paranoid, but you know how the saying goes.....
IMO edibles need to be labelled with clear warnings.
#6
:-)
Joined APC: Feb 2007
Posts: 7,339
What really worries me is how so many ordinary snack foods like brownies are now laced with MJ, especially in states where it’s legal. What the hell is one to do if accidentally consuming one of them and later feeling the effects.
Call out sick and the lawyer up?
Of course I’ll never eat snack food that I’ve not personally unpackaged, but this is something many people will overlook and I’m sure it only a matter of time before this happens to someone in the industry
I hate to sound paranoid, but you know how the saying goes.....
Call out sick and the lawyer up?
Of course I’ll never eat snack food that I’ve not personally unpackaged, but this is something many people will overlook and I’m sure it only a matter of time before this happens to someone in the industry
I hate to sound paranoid, but you know how the saying goes.....
#7
Gets Weekends Off
Joined APC: Jul 2019
Posts: 196
Dangerous time that we are living in. Choose your associates wisely.
#8
In a land of unicorns
Joined APC: Apr 2014
Position: Whale FO
Posts: 6,469
Depends on his size. More like 0.04-0.06. The breathalyzer seems somewhat accurate in this case. An average male burns around 0.01-0.015 an hour. Bigger guys get closer to 0.02/hr.
And he was way over the limit when he entered the cockpit. He blew 0.046 2 hours after detention, and the blood test showed 0.015 around 5 hours after being in the cockpit. I'd say conservatively he had at least 0.06-0.07 BAC, 0.10 if he was a bigger dude, when he started duty.
Alcoholism sucks. Hope he seeks help. But fighting this in courts won't look good if he ever wants his medical back.
#9
#10
Alcohol burns off at a rate of .016 BAC per hour, or about one average drink per hour. This rate is pretty standard regardless of your weight.
If the blood alcohol test of 0.015 was taken five hours after his scheduled flight, then it would almost certainly been between 0.09 and 0.10 when he showed up for duty. Unless, that is, he continued to drink AFTER he was detained.
That would also correspond well with the 0.046 on the initial breathalyzer two and a half hours after detention (0.095- (2.5x.016)) = 0.045.
This guy is getting taken for a ride by his attorney. To begin with, cops enjoy qualified immunity. Secondly, cops ain’t rich and if there were really a case here they’d be going after the EMPLOYER of the cops (Rapid City), not the cops themselves.
The lawyer can’t actually think he’s going to win this case, or that his client will collect anything even in the unlikely event that he did, although he may be able to generate some serious billable hours going through the motions. You can bet the lawyer will get his money, even when the client loses.
This pilot screwed himself, and he’s only digging the hole deeper...
From the Rapid City Journal:
https://rapidcityjournal.com/news/lo...1d4166c9b.html
If the blood alcohol test of 0.015 was taken five hours after his scheduled flight, then it would almost certainly been between 0.09 and 0.10 when he showed up for duty. Unless, that is, he continued to drink AFTER he was detained.
That would also correspond well with the 0.046 on the initial breathalyzer two and a half hours after detention (0.095- (2.5x.016)) = 0.045.
This guy is getting taken for a ride by his attorney. To begin with, cops enjoy qualified immunity. Secondly, cops ain’t rich and if there were really a case here they’d be going after the EMPLOYER of the cops (Rapid City), not the cops themselves.
The lawyer can’t actually think he’s going to win this case, or that his client will collect anything even in the unlikely event that he did, although he may be able to generate some serious billable hours going through the motions. You can bet the lawyer will get his money, even when the client loses.
This pilot screwed himself, and he’s only digging the hole deeper...
From the Rapid City Journal:
It appears, however, that Eisenbraun may have thought no crime had been committed because he might not have been aware that the legal blood-alcohol limit for operating an aircraft is 0.04 percent, which is lower than the legal limit of 0.08 for driving a vehicle.
Eisenbraun’s written report says that after he spoke to Duszak, Eisenbraun left the airport, which is about eight miles east of Rapid City, and returned to the police station downtown. There, Eisenbraun spoke to Lt. Elias Diaz.
“Lt. Diaz and I consulted additional resources and found the statute SDCL 50-13-17,” Eisenbraun wrote in his report. “This statute prohibits the operation of an airplane with a BAC over .04.”
Eisenbraun contacted Officer Hinzman and told him not to release Duszak. Eisenbraun also sent Officer Younie back to the airport to renew the investigation into Duszak.
Younie received the call from Eisenbraun at 9:46 a.m. Younie found Duszak, who was still at the airport, and asked him to answer more questions and submit to a blood test. Duszak declined to do either, on the advice of a lawyer he’d spoken with by phone.
Meanwhile, Officers Eisenbraun and Diaz had spoken with Roetzel of the Pennington County State’s Attorney’s Office, and they determined there was probable cause to arrest Duszak for operating an aircraft while intoxicated.
Officer Younie arrested Duszak, took him to the Pennington County Jail in Rapid City, and filed paperwork asking for a search warrant to force Duszak’s submission to a blood test. A magistrate judge granted the warrant.
Finally, at 12:38 p.m. — four hours and 38 minutes after the TSA worker smelled alcohol on Duszak’s breath — a blood test was administered.
Eisenbraun’s written report says that after he spoke to Duszak, Eisenbraun left the airport, which is about eight miles east of Rapid City, and returned to the police station downtown. There, Eisenbraun spoke to Lt. Elias Diaz.
“Lt. Diaz and I consulted additional resources and found the statute SDCL 50-13-17,” Eisenbraun wrote in his report. “This statute prohibits the operation of an airplane with a BAC over .04.”
Eisenbraun contacted Officer Hinzman and told him not to release Duszak. Eisenbraun also sent Officer Younie back to the airport to renew the investigation into Duszak.
Younie received the call from Eisenbraun at 9:46 a.m. Younie found Duszak, who was still at the airport, and asked him to answer more questions and submit to a blood test. Duszak declined to do either, on the advice of a lawyer he’d spoken with by phone.
Meanwhile, Officers Eisenbraun and Diaz had spoken with Roetzel of the Pennington County State’s Attorney’s Office, and they determined there was probable cause to arrest Duszak for operating an aircraft while intoxicated.
Officer Younie arrested Duszak, took him to the Pennington County Jail in Rapid City, and filed paperwork asking for a search warrant to force Duszak’s submission to a blood test. A magistrate judge granted the warrant.
Finally, at 12:38 p.m. — four hours and 38 minutes after the TSA worker smelled alcohol on Duszak’s breath — a blood test was administered.
Last edited by Excargodog; 10-13-2019 at 04:44 PM.
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