Failure to Report A DUI to the FAA

  • ON Feb 01, 2017
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  • BY Anthony Ison
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  • IN Pilot Law

Did you know you that you can have your medical and/or airman certificate(s) revoked for failure to report a DUI to the FAA? What’s more is that you can have your medical and/or airman certificate(s) revoked even if you weren’t convicted of DUI, but you failed to report to the FAA either an administrative suspension of your state-issued driver’s license or a “plead-down” lesser, offense. In fact, the federal aviation regulations (“FARs”) require a certificate holder to file a report with the FAA within sixty (60) days of a “motor vehicle action.” The FAA considers a “motor vehicle action” to include:

    1. A conviction 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 by a state 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 of an application for a license to operate a motor vehicle by a state 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.

It is important for every FAA certificate holder reading this article to understand that the FAA requires SEPARATE reports for administrative actions and convictions. That means that if an airman’s driver’s license is administratively suspended or revoked prior to conviction of a DUI and then the airman is subsequently convicted of DUI or even potentially reckless driving (depending on the statute in the convicting state), the airman will have to file two separate reports! One tip to remember for airman is that refusing to “blow” for a breathalyzer can in many states automatically trigger an administrative suspension of the airman’s driver’s license…triggering an automatic report to the FAA! Beyond that, alcohol related “motor vehicle actions” are also required to be reported on an airman’s medical application (look for more information on this in a separate blog article).

 

If you forget to report your “motor vehicle action” to the FAA within the 60 time limit – it’s time to contact an FAA enforcement attorney. Generally, the FAA will work with an airman that reports a “motor vehicle action” after the 60 day time limit – however, the FAA looks for very specific language in these reports and what and airman says or doesn’t say in this report can either trigger certificate revocation or other FAA enforcement action, or it can lead to leniency from the FAA.

 

If you are a pilot that has received a DUI and need assistance reporting it to the FAA or if you’re a certificate holder that failed to report a DUI to the FAA, it’s time to call your aviation attorney at The Ison Law Firm. Your FAA enforcement attorney is standing by to help you with all your DUI reporting requirements.

Ambiguities in Fitness For Duty Requirements of 14 C.F.R. § 117.5

  • ON May 13, 2016
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  • BY Anthony Ison
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  • IN Pilot Law

Have you ever been in a quandary as to whether you are “legal” under the rather ambiguous fitness for duty requirements of 14 C.F.R. § 117.5? If you are unfamiliar with this particular regulation, you will note that the essential rule is that “each flight crewmember must report for any flight duty period rested and prepared to perform his or her assigned duties.” Other than some of the rest requirements found in part 117, the only litmus test for “rested and prepared” under § 117.5 offered by the regulations is whether the crewmember is “too fatigued” to perform his or her duties in a safe manner. One ambiguity begets another… you are too tired when you are too tired. What’s worse is that even with very little to go on, the FAA has concluded (2014 WL 657509) that § 117.5(d) requires a flight crewmember to make a written affirmation that he or she is fit for duty each time that flight crewmember commences a flight segment under part 117. The issue here is that due to the subjective nature of the regulation, the FAA can potentially have a field day with you when it comes to an enforcement action – they even have you affirming statements and creating their evidence beforehand. How so?

 

Let’s say for example that a Captain for an airline finds him or herself pretty tired when he or she shows up to work. The Captain has satisfied all the rest qualifications found in part 117, but due to family stress/drama, finds him or herself pretty tired. The Captain is just plain worn out. Is it enough to bow out of work? That’s a question only the Captain can really answer for him or herself. If the Captain decides to fly and affirms in writing that he or she is fit for duty, but later goes on to have a runway incursion, you can bet your bottom dollar that the FAA will question whether or not the Captain was really “fit for duty.” Unfortunately, the FAA holds all the cards in a situation like this. The objective of the FAA will be to blame someone (or “figure out the cause”) for the runway incursion and an easy soulution would be to bring an enforcement action against the Captain for not really being “fit for duty.” It’s the Captain’s word versus the FAA’s  and when such subjectivity is allowed in the regulations, the FAA can pretty much say whatever it wants.

 

Another hypothetical scenario outlined in a recent FAA legal interpretation highlights more ambiguities in 14 C.F.R. § 117.5. This scenario poses the question of what a flight crewmember should do if he discovers that he is unfit for duty while flying in an airborne aircraft. 14 C.F.R. § 117.5(c) states that “no certificate holder may permit a flight crewmember to continue a flight duty period if the flight crewmember has reported him or herself too fatigued to continue the assigned flight duty period.” So, when a pilot reports him or herself too fatigued to continue the flight duty period while he or she is operating airborne, should the other flight crewmember declare a mayday emergency and land at the nearest suitable airport? Should the non-fatigued flight crewmember continue the flight while the fatigued flight crewmember takes an in-flight nap? Should the fatigued flight crewmember be permitted to perform any duties while fatigued? If the flight continues on with the flight crewmember in a fatigued state, can either or both flight crewmembers be subject to the catch-all enforcement regulation of 14 C.F.R. § 91.13: “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another?”

 

The FAA’s response to this hypothetical is that: “If a flight crew is augmented and there are non-fatigued flight crewmembers who are able to take over a fatigued flight crewmember’s duties, then they should do so to allow the fatigued flight crewmember to obtain in-flight rest. If a flight crew is unaugmented then the decision of whether to conduct an emergency landing will depend on the flight crewmember’s fatigue level. If the fatigued flight crewmember determines that he can safely land the aircraft at the intended destination, then he should continue to that destination and land. However, if the flight crewmember determines that he is too fatigued to safely land at the intended destination, then he should land the aircraft at the nearest suitable location to avoid accumulating additional amounts of fatigue while operating the aircraft.” Nonetheless, if a flight crewmember has to land a plane because he or she became to fatigued while airborne, the FAA is going to be curious as to why you admitted to being “fit for duty” when you embarked on the flight segment. What’s more is that even though a crewmember may be able to “take over” for a fatigued crewmember, the FAA may still consider this to be “careless or reckless manner so as to endanger the life or property of another” under part 91.

 

If you have any questions about crew rest requirements, part 117, or FAA enforcement actions, please contact The Pilot Lawyer at 855-FAA-1215 or visit on the web at www.ThePilotLawyer.com.

DUI and the FAA: What Should I Do?

  • ON Nov 02, 2015
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  • BY Christopher Ison
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  • IN Pilot Law

Navigating the treacherous terrain of a DUI and the FAA can be tough. Did you know that you could have your airmen certificate suspended or revoked for certain offenses related to driving under the influence of drugs or alcohol? Beyond that, the FAA can deny an application for any certificate, rating, or authorization in response to a DUI offense. The FAA’s consequences for a DUI will make you regret ever drinking something besides water. However, the following will walk you through a scenario in which you are charged with driving under the influence and give you a few pointers on the FAA’s requirements.

 

Let’s say you go out on Friday night with your friends and with the social mores what they are today, you decide to indulge in an alcoholic beverage. Maybe you end up having more than one drink, but you claim to feel “fine.” One thing leads to another and you find yourself behind the wheel of your car, trying to find your way home. This is when you get pulled over by the local police for swerving in your lane. The officers conduct a field sobriety test, which you fail, and it is determined that your blood alcohol is approximately .250. As a result, you are charged with a State statute prohibiting the operation of a motor vehicle while intoxicated/impaired by drugs or alcohol. In this situation, you should speak to an attorney as to how to handle the DUI on the State/criminal level. Nonetheless, for the purposes of understanding a DUI and the FAA, let’s assume that you hire an attorney and you end up being convicted of one charge of DUI.

 

What happens now? The FAA has very strict reporting guidelines when it comes to airmen being charged with a DUI offense. The answer to this question comes from 14 C.F.R. §61.15(e), which reads: “[e]ach person holding a certificate issued under this part shall provide a written report of each motor vehicle action to the FAA…not later than 60 days after the motor vehicle action.” Did you catch that? The FAA requires that 60 days after you the motor vehicle action, you must submit a written report to the FAA. You have to tell the FAA about your DUI!

 

Some people think they will outsmart the FAA. They say, “I just won’t tell the FAA and they will never find out.” Okay, let’s run that theory down for a second. You may get away with not telling the FAA for a little while, but they will always find out somehow. The likely scenario is that the information will come out when you go to get your next medical certificate examination, as Form 8500 (medical application) authorizes the release of your National Driving Record to the FAA. Keeping this information from the FAA is a BIG MISTAKE. 14 C.F.R. §61.15(f) states: “failure to comply with paragraph (e) of this section is grounds for…denial of an application for any certificate, rating, or authorization…or suspension or revocation of any certificate, rating, or authorization.” When the FAA finds out about the DUI and subsequently revokes your certificate because you failed to notify them, they will now beg you as a liar and will make your life much worse than it needs to be.

 

So let’s say that you report the DUI to the FAA within the 60 time period. What happens next? When you report the alcohol-related motor vehicle action, the FAA will initiate a preliminary investigation to ensure your report was within the required 60-day time frame and that there are no other reportable actions. This investigation may lead to a formal investigation where the FAA will consider either suspending or revoking your certificate or giving you a warning, etc.

 

There is one tip which may seem self-serving to all the FAA Enforcement and Aviation Attorneys out there, but is really the best piece of advice for airmen in this situation: hire an Aviation Attorney. An Aviation Attorney can help you draft your initial 60-day filing to the FAA with an eye toward protecting your certificate from a certificate suspension or revocation. Beyond that, a FAA Enforcement Attorney can help coordinate medical experts and preserve legal evidence from the DUI conviction, which may become relevant in a subsequent FAA Enforcement Action.

 

As soon as you are involved in a DUI situation, it is important to contact your FAA Enforcement Attorney. Getting your Aviation Attorney involved in the process early on is a good idea, as he or she can ensure that you get the appropriate counseling and evaluation in anticipation of a FAA certificate action. If you have questions about a DUI charge in Florida, or have questions about a DUI and the FAA on a national basis, feel free to call an Aviation Attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com. 

Pilot Deviation Penalties

  • ON Oct 27, 2015
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  • BY Christopher Ison
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  • IN Pilot Law

Pilot deviation penalties can be stiff. What is a pilot deviation? A pilot deviation is an action of or by a pilot that results in a failure to comply with an ATC clearance and/or instruction. The penalties for pilot deviations can range anywhere from a FAA Administrative or Enforcement Action, a “709” ride requirement, or even death. Possibly the best (and worst) example of how disastrous a pilot deviation can be comes from the deadliest aviation accident in history…the Tenerife Airport disaster.

 

On March 22, 1977, at the Los Rodeos Airport (now Tenerife North Airport) in the Canary Islands, two Boeing 747s collided on the runway causing the death of 583 people. At the time of the accident, the Tenerife airport was under dense fog and the taxiways were congested with overflow traffic. Immediately after lining up, the Captain of KLM Flight 4805 advanced the throttles and the aircraft started to move forward. The First Officer advised the Captain that ATC clearance had not yet been given, to which Captain Veldhuyzen van Zanten responded, “I know that. Go ahead, ask.” First Officer Meurs then radioed the tower that they were “ready for takeoff” and “waiting for our ATC clearance”. The KLM crew then received instructions which specified the route that the aircraft was to follow after takeoff. The instructions used the word “takeoff,” but did not include an explicit statement that the flight was “cleared for takeoff.”

 

First Officer Meurs read the flight clearance back to the controller, completing the read-back with the statement: “We are now at takeoff.” Captain Veldhuyzen van Zanten interrupted the First Officer’s read-back with the comment, “We’re going.” The controller then immediately said “OK” followed by “stand by for takeoff, I will call you,” indicating that he had not intended the clearance to be interpreted as a takeoff clearance. Unbeknownst to the KLM crew, Pan Am Flight 1736 was not clear of the runway. As a result, the two 747s collided, causing the deadliest aviation accident in history.

 

Let’s use this disaster to learn more about pilot deviations and their associated penalties. As evidenced by the Tenerife collision, the most important thing to know is that pilot deviations can be deadly. Some pilots may be able to stomach a potential FAA Enforcement Action brought against their certificate, but there is not one pilot on this planet that could stomach the death of passengers, crew, and those on the ground. While it may be easy to think “ATC probably won’t notice my screw up if I fly at 25,000 feet instead of 24,700 feet,” or “the FAA won’t ding me for such a small deviation,” you MUST remember that a simple deviation such as that could be the difference between life and death.

 

However, let’s say for example that the two Boeing 747s at Tenerife managed to avoid collision. Maybe KLM Flight 4805 was able to prematurely rotate and get airborne before striking Pan Am Flight 1736. What would the penalty be for a deviation like this? There were no fatalities. There was no property damage. There was, however, potential for disaster…which is what the FAA is concerned about. In this scenario, the FAA would likely initiate investigation and potentially administrative or enforcement proceedings. There is a litany of Federal Aviation Regulations that the FAA would claim the crew violated, however 14 C.F.R. §91. 123 and 14 C.F.R. §91.13 are used most often. §91.123 speaks to compliance with ATC clearances and instructions and §91.13 speaks to careless and reckless operations. Note that the §91.13 “careless and reckless operation” card is one that the FAA regularly plays, ancillary to other FAR violations. The penalties to such violations could include no action, a warning notice or letter of correction, a “709” ride, certificate suspension, civil penalties, and even certificate revocation.

 

If you are the subject of a FAA investigation, administrative or enforcement action, or civil penalty, make sure you contact an aviation attorney to speak about your possible defenses. In most cases, filing a NASA report is a good idea if you deviated from ATC clearance or instruction. If you have any questions about pilot deviation penalties and defenses, call an aviation attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

“Pilot-In-Command” Insurance Exclusions

  • ON Oct 15, 2015
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  • BY Christopher Ison
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  • IN Pilot Law

 

Most prudent pilots know that accidents happen. Despite expensive training and exercising an abundance of caution, the unexpected can happen…which is one reason why pilots purchase accidental death and dismemberment insurance. Did you know, however, that sometimes your accidental death policy will exclude coverage for accidents occurring when you are acting as a “pilot or crewmember” of an aircraft involved in an accident? This means that if at the time of an aviation accident that causes your death, you are the pilot-in-command or crewmember of an aircraft, your loved ones will be denied the coverage offered under your policy.

 

But for general aviation pilots, there can be a fine line between when you’re acting as a “pilot or crewmember” and when you are just a passenger with a pilot’s license. For instance, what is one to do in the flight instructor/instrument student situation? If an aircraft requires only one pilot and there are two licensed pilots at the controls, how can an insurance company determine who was acting as a “pilot” or “crewmember” on that particular flight? Better yet, at what point during the flight will the insurance company base its determination of whether or not the insured is acting as “pilot?” State and federal courts alike have struggled to answer this question – as nearly every court has a different stance. Perhaps one of the “better” cases for pilots, and a position which every court should adopt, comes from the Federal Court of Appeals, 11th Circuit, in Jordan v. Natl. Acc. Ins. Underwriters Inc., 922 F.2d 732 (11th Cir. 1991). The following will review the facts of this case and the court’s holding.

 

“James Jordan obtained his private pilot’s license in 1976 and his instrument rating in 1978. He accumulated over 600 hours of flight time in private aircraft and was part owner of a six-seat Cessna Centurion. This aircraft was equipped with dual controls so that it could be flown from either of the two front seats. The left front seat was designated the pilot’s seat and the right front seat the co-pilot’s or passenger’s seat. In November 1986 Jordan hired Jack Page, a professional flight instructor, to give him a refresher course in instrument flying. Page was a highly experienced pilot who had flown more than 9,000 hours in military and civilian aircraft.

 

On the day of the crash Jordan made arrangements for himself and Page to take his plane up for instrument practice. He called the FAA to obtain a weather briefing and file a flight plan. He performed a pre-flight inspection of the aircraft, taxied to the runway, and took off. As Jordan and Page flew from Birmingham to Montgomery, Jordan sat in the pilot’s seat and handled all the flight controls without assistance from Page. After landing in Montgomery the two men took off again to practice instrument approaches. Again, Jordan performed all of the pre-flight procedures, sat in the pilot’s seat, and handled all the flight controls alone. As he maneuvered the plane on the practice landing approach he wore “floggles,” which allowed him to see only the aircraft’s instruments.

 

The plane suddenly lost power while it was on final approach. Page immediately engaged his set of flight controls and took over the throttle and the control wheel. He instructed Jordan to switch fuel tanks and engage the fuel pump boost as part of the emergency procedures for a loss of power. Page attempted to guide the plane back to the Montgomery airport, but it struck power lines and crashed. Page survived the crash but Jordan was killed. Approximately 30 seconds elapsed from the time that Page took control of the aircraft until impact. Page did not operate any of the flight controls that day outside of that 30 second period.”

 

In this case, Jordan’s estate sued because accidental death and dismemberment benefits were denied based on the following exclusions in Jordan’s policy:

 

“SECTION II DESCRIPTION OF COVERAGE: Subject to the conditions, limitations and exclusions of the policy, the insurance granted hereunder shall apply to the injuries sustained by an Insured Person anywhere in the world provided that aviation coverage shall be limited to riding as a passenger (and not as a pilot or member of the crew) in any previously tried, tested and approved aircraft. (emphasis added).

SECTION IV EXCLUSIONS: The policy does not cover an Insured Person for any loss caused by, contributing to or resulting from…injury sustained while, or in consequence of, riding as a passenger or otherwise, in…any vehicle or device for aerial navigation other than as provided by Section II, Coverage.”

 

The Insurance Company advanced two principal contentions relating to interpretation of the policy on summary judgment and at trial: (1) the policy required that the status of an insured person as passenger, pilot or crew member be established at some point during the flight before the death or injury occurred (i.e. before the so-called moment of impact); and (2) even if the insured person’s status was to be determined at the moment of impact, Jordan’s actions during the flight nevertheless established that he was a pilot or crew member and therefore was not entitled to coverage.

 

The district court, applying Alabama law, rejected each of these contentions and ruled for Jordan. First, the court held that the policy was ambiguous, and, construing it against its drafter as required by Alabama law, it determined that an insured’s status must be determined at the moment of impact. Secondly, the court held that Reliable had not met its burden of proving that Jordan was a pilot or crew member at the moment of impact and that therefore the policy covered him at the time of his death.

 

Some courts in the United States have held that the determination of whether the insured was acting as a “pilot” or “crewmember” must be determined by the tasks that the insured had while on the flight. For instance, if the insured gathered weather information, talked on the radios, did the preflight check, etc., he or she may have been the “pilot” on that flight. Keyser v. Connecticut Gen. Life Ins. Co., 617 F. Supp. 1406, 1413 (N.D. Ill. 1985). In Jordan v. Natl. Acc. Ins. Underwriters Inc., however, the Court says that the insurance company could have limited coverage by defining the key terms in the policy so as to expressly rule out the moment of impact test. It could have defined “pilot” as “any person who operates any flight control at any time during the flight in question,” but it did not. As a result, the Court etched out the moment-of-impact rule, where the insurance company must determine “pilot” or “crewmember” status at the time of the accident.

 

What does all this mean for you? First, know what your accidental death and dismemberment policy says. What are the exclusions? How does it define “pilot” or “crewmember?” Secondly, know what the state of the law is on this issue in your state. An aviation accident is a very unfortunate occurrence; however, it can be much worse for your family if they have to wrestle with insurance companies after you are gone. If you have any questions, feel free to contact an aviation attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.