Flying While Impaired
Pennsylvania Flying While Impaired
Pennsylvania Statutory law prohibits any person from acting as a flight crewmember of any aircraft within the Commonwealth’s airspace if that person has had imbibed alcohol or used drugs. If an individual does so then he or she may be cited for a Flying While Impaired (FWI) offense.
The term “aircraft” is not specifically defined in the FWI statute, but is generally defined by the Pennsylvania Consolidated Statues as any contrivance, except an unpowered hang-glider or parachute, used for manned ascent into or flight through the air. This includes both commercial and general aviation powered aircraft, such as airplanes and helicopters, and also unpowered gliders, ultalights, powered hang-glider and hot air balloons.
One activity that does not come within this definition is skydiving, once an individual has left the powered aircraft. However, parasailing may come within this definition since a tow vehicle powers the parasail. However, once the parasail releases the towrope and becomes an unpowered hang-glider then it would fall outside of the definition.
The FWI statute also requires that a person be acting as a member of the flight crew to be charged with flying while impaired. The flight crew is defined as any person who performs or is assigned any duty in an aircraft when the aircraft is undergoing preflight inspection, maintenance, boarding or carrying passengers or crew, or at any time the aircraft is under power or in flight. This covers not only the pilot and co-pilot of commercial aircraft, but also includes flight engineers and flight attendants on a commercial or private aircraft, and mechanics who perform maintenance on such aircrafts.
There are five circumstances where an individual may be arrested for flying while impaired. No individual may act or attempt to act as a flight crewmember:
- While under the influence of alcohol
- While under the influence of a controlled substance that affects the individual’s faculties in any way contrary to safety.
- When the alcohol concentration in the individual’s blood or breath, as measured within 2 hours of the time or operation, is more than 0.02%
- While under the influence of any combination of a controlled substance and alcohol that affects the individual’s faculties in any way contrary to safety.
- Within eight hours after consumption of liquor or a malt or brewed beverage as defined in the Liquor Code. The code has a broad range and generally encompasses all alcoholic beverages.
Under Section B, there is no distinction made between the various schedules of controlled substances. In addition, under Section B, a flight crewmember can be arrested for FWI even if the individual has a prescription for the particular controlled substance.
Section C is similar to the minor’s provision of the Pennsylvania DUI statute. If a law enforcement official is unable to obtain a breath or blood sample within the required two-hour window, the individual cannot be convicted under this section.
The Pennsylvania General Assembly also included a provision in the FWI statute that punishes aircraft owners who allowed impaired persons to operate an aircraft. This applies to owners who knowingly loan or rent their aircraft to impaired persons. It also includes any person in charge of an aircraft, such as lessors or pilots-in-command, who permits an impaired individual to act as a member of the flight crew. An individual convicted under this provision is subject to the same criminal penalties as a person who flies an aircraft while impaired.
If a law enforcement official has reasonable grounds to believe an individual has violated Section A, the officer may request that the individual submit to a pre-arrest test of blood, breath or urine. However, there is no requirement that an officer must request an individual submit to chemical test before placing the person under arrest. When requesting consent for chemical testing, the law enforcement officer must inform the individual of the penalties for refusal and the reporting requirements of the Federal Aviation Administration (FAA). If an individual, after being notified of penalties and reporting requirements, refuses to submit then no testing shall be conducted.
However, the refusal to submit to chemical testing will result in a suspension of the individual’s operating privilege and be used as a sentence enhancement.
Once an individual is charged, the individual shall submit to one or more chemical tests of breath, blood or urine to determine the alcoholic content of the blood or the presence of controlled substance. It is the duty of the law enforcement officer to notify the individual of the penalties for refusal and the reporting requirements. Further, an individual may also have physician of his or her own choosing administer additional tests at the same time and have those results admitted into court as evidence as well.
A refusal to submit to chemical testing will result in a fine between $2,500 and $5,000. A refusal is admissible in court as evidence, but no presumption shall arise from the refusal.
In a civil proceeding arising out of a FWI violation, the amount of alcohol or presence of a controlled substance in the individual’s blood or urine is generally admissible into evidence. These test results are available to the individual charged and his or her attorney upon request.
Whenever an individual has submitted or has refused to submit to chemical testing, law enforcement officers are required, along with any test results, to report that conduct to the Federal Aviation Administration. The report includes the individual’s name and test results or that the individual refusal to submit to chemical testing.
Only results of a post-arrest chemical test must be reported to the FAA. It is not required that the results of a pre-arrest chemical test be reported to the FAA. However, if the individual refuses to submit to pre-arrest chemical testing then that conduct will be reported to the FAA.
These reports to the FAA can have a significant affect on an individual’s aviation certification, and may constitute grounds for a suspension or denial of a medical certification or a pilot’s rating, certification or authorization for up to a year.
Generally, an FWI offense is considered a misdemeanor of the second degree, and upon conviction is subject to a $1000 to $5000 fine and imprisonment of 72 consecutive hours up to 2 years. A violation under Section A has an additional requirement for a substance abuse evaluation.
A violation that causes bodily injury, serious bodily injury, or death of any person or damage to an aircraft or other property is also considered a misdemeanor of the second degree. If convicted, an individual will receive a fine of $5,000 to $10,000 and will be imprisoned for 30 days up to two years. Any FWI violation under Section A that results in injury will require an evaluation for substance abuse.
Contact my office you or someone you know is a private or commercial pilot and faces charges of Flying While Impaired. Having an experienced DUI lawyer is important in this area of law. A Flying While Impaired conviction could result in loss of your commercial pilot’s license and loss of your livelihood. Please also contact my office if you are a pilot and face DUI charges. A DUI conviction must be reported to the FAA.