March 2021 - The Pilot Lawyer

Getting a FAA Medical Certificate with a Misdemeanor

ON Mar 07, 2021
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BY Anthony Ison
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IN Pilot Law

Getting a FAA medical certificate with a misdemeanor on your record is not impossible. Oftentimes a single misdemeanor conviction may not be significant to your eligibility for FAA medical certification, meaning that deferral by your Aviation Medical Examiner (“AME”) won’t be warranted. The relevant consideration, however, is what the misdemeanor charge was for and how many convictions you have on your record. For instance, some drug and/or alcohol related misdemeanors may warrant further evaluation by the FAA Office of Aerospace Medicine’s Drug and Alcohol department. Whereas a single misdemeanor conviction for “petty theft” when you were a teenager may mean very little to the FAA. On the other hand, if you have numerous misdemeanor charges, no matter if they are drug and alcohol related, the FAA will likely inquire if the repeated offenses could have been caused by an underlying mental health disorder, such as a personality disorder.

There’s an important distinction when it comes to getting a FAA medical certificate with a misdemeanor. That distinction is whether you have been arrested for a misdemeanor crime versus whether you have been convicted of a misdemeanor crime. The FAA only requires you to report a non-traffic related misdemeanor conviction on your medical application at question 18w. That is, just because you’ve been arrested for a misdemeanor charge, but later not convicted of the crime, you do not have to report the offense on your FAA medical application; with one notable exception. If you were arrested for a misdemeanor charge which involved drugs or alcohol and which either involved driving while under the influence of drugs or alcohol or which resulted in the denial, suspension, cancellation, or revocation of your driving privileges or which resulted in attendance at an educational or rehabilitative program, you will have to report the arrest at question 18v. Importantly, these are the only offenses which are reportable, even if you were not later convicted of the charge.

There are other things to consider regarding getting a FAA medical certificate with a misdemeanor. As discussed above, a conviction for a misdemeanor offense need only be reported on your FAA medical application, with one exception. This, however, begs the question of whether you’ve actually been convicted of the offense. Specifically, what you may need to figure out is whether your plea of “nolo contendere,” “no contest,” or if an “adjudication withheld,” is considered a conviction and required to be reported at question 18w.

While a single misdemeanor conviction, not related to drugs or alcohol, may not make it too difficult getting a FAA medical certificate, it will all depend on what the offense was, when it happened, and how many offenses there are. It is always important to be prepared when filling out an application, in case your history triggers a deferral by the AME to the FAA.

If you are having trouble getting a FAA medical certificate with a misdemeanor, call the FAA medical attorneys at The Ison Law Firm. We can help you assess whether your charge needs to be reported on your next FAA medical certificate, or if you should have reported your misdemeanor on a previous medical application. Then, we can work with you and the FAA to establish your eligibility for medical certification, despite your misdemeanor.

We are aviation attorneys. We only do aviation law. Nothing Else.

Fighting a DOT alcohol test?

ON Mar 05, 2021
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BY Anthony Ison
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IN Pilot Law

Fighting a DOT alcohol test? Something every airman fighting a DOT alcohol test should consider is whether the Evidentiary Breath Test (EBT) instrument was producing accurate results. If not, it may be possible to successfully challenge a positive, random alcohol test under 14 C.F.R. § 120. While we highly recommend that you obtain competent legal counsel that handles Part 120 and Part 40 drug and alcohol testing cases on a daily basis, you will certainly want to review all the information provided from the FAA through the Enforcement Investigative Report (EIR) in order to determine whether the FAA can satisfy certain regulatory requirements under 14 C.F.R. § 120 and 49 C.F.R. § 40.

Per 14 C.F.R. § 120.203(b), “[e]ach employer shall ensure that all alcohol testing conducted pursuant to this subpart complies with the procedures set forth in 49 CFR part 40. The provisions of 49 CFR part 40 that address alcohol testing are made applicable to employers by this subpart.” Oftentimes your legal counsel will review 49 C.F.R. § 40.233 to see whether the FAA can prove that the EBT used for your breath test underwent proper care in order to validate that test.

The title of 49 C.F.R. § 40.233 asks a particularly appropriate question for the purpose of determining how to analyze the validity of an EBT result: “[w]hat are the requirements for proper use and care of EBTs?” While this regulatory section contains multiple requirements for the FAA and testing facility to satisfy, one area, in particular, that must be paid attention to is the EBT’s Qualified Assurance Plan (QAP).

Think of the QAP as the master instructions for an EBT. The QAP is especially important because 49 C.F.R. § 40.233(a)(1) states that the QAP must be submitted for NHSTA approval before an Evidentiary Breath Test (EBT) can be used by the DOT. The QAP must “specify the methods used to perform external calibration checks on the EBT, the tolerances within which the EBT is regarded as being in proper calibration, and the intervals at which these checks must be performed.” Id. (emphasis added). As such, 49 C.F.R. § 40.233(b) states that the manufacturer of an EBT must include “instructions for its use and care consistent with the QAP.”

If a testing facility fails to comply with the requirements EBT’s QAP by not performing the external calibration checks of the EBT at the intervals the instructions specify then they could have a big problem because they could be in violation of 49 C.F.R. § 40.233(c)(1). Specifically, 49 C.F.R. §40.233(c)(1) states that the user of the EBT must “follow the manufacturer’s instructions…including performance of external calibration checks at the intervals the instructions specify.” Failure of the testing facility to properly maintain records or timely perform these accuracy checks could result in a positive EBT result being invalidated.

For example, the QAP for the Intoximeter RBT IV/Alco-Sensor IV states that “if an accuracy check has not occurred within the past 31 days, an accuracy check must be run prior to running a subject test.” Consequently, if you are found to have alcohol in your system during a breath test while using an Intoximeter RBT IV/Alco-Sensor IV, you will want to know when the last time the instrument was checked for accuracy. If it has been more than 31 days before your test, you might have an argument that the results should be invalidated because of the requirements of 49 C.F.R. §40.233(c)(1) and, by extension, 14 C.F.R. §120.203(b).

If you have received a positive, random breath test while performing a safety sensitive function, call the FAA defense attorneys at The Ison Law Firm at 855-FAA-1215 to discuss your legal rights and options. We are aviation attorneys. We only do aviation law! Nothing else!

Can I Get a FAA Medical Certificate with a TBI?

ON Mar 03, 2021
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BY Anthony Ison
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IN Pilot Law

Can I Get a FAA Medical Certificate with a TBI? This is a question that we are asked frequently by airmen who have had a head injury. This firm most frequently sees airmen attempting to achieve FAA medical certification despite a history of traumatic brain injury (“TBI”) resulting from an automobile or aircraft accident, a fall, injuries incurred in the military, or as the result of another traumatic injury. Of course, every case is different; however, it may be possible to achieve FAA medical certification following a TBI. There are very specific items that the FAA will evaluate in order to establish whether your history of TBI puts you at risk for developing aeromedically significant, side-effects, subsequent to the injury.

In practice, the FAA stresses a concern for posttraumatic epilepsy or seizures, following a TBI. Specifically, the FAA has identified that excess risk of seizures remains elevated for 10 years after mild brain injury. For the most part, we commonly work with airmen who are several months, post-injury and experiencing no symptoms. In most cases, the airman’s treating neurologist has even cleared the airman back to work and has expressed no concern for the development of seizures. The FAA, however, in an abundance of caution, will typically be very cautious with how long the agency will require an airman to wait, prior to considering the airman for medical certification.

If you’ve had a TBI, you can expect the FAA to want to review a number of items, to assess your neurological and neuropsychological status, as well as your risk for developing seizures. This may include review of all medical records, including pre-hospital, emergency department, specialty consultation, and operative reports. Typically, the FAA will also request a neuropsychological evaluation (to FAA standards), as well as a MRI with specific hemosiderin protocol.

If the FAA is asking you for medical records and evaluation following a TBI, be careful how you respond and what information you provide. Keep in mind that you may be able to argue to the FAA that previously completed, diagnostic workup supports your eligibility for medical certification and that additional evaluation may be unnecessary. If there is an opportunity to avoid unnecessary, expensive, and potentially problematic evaluation and imaging, that opportunity should be considered with a FAA medical attorney who is familiar with the FAA’s TBI protocol.

If you are asking “can I Get a FAA Medical Certificate with a History of TBI,” call to have a consultation with a FAA defense attorney at The Ison Law Firm. Our attorneys can evaluate your case and provide important counsel, as you develop an appropriate response to the FAA’s Office of Aerospace Medicine.

FAA Medical and VA Benefits for PTSD

ON Mar 02, 2021
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BY Anthony Ison
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IN Pilot Law

Is it possible to obtain a FAA medical certificate and VA benefits for PTSD? There are many veterans who hold medical certificates with the FAA, despite actively receiving benefits from the Department of Veterans Affairs for Post-traumatic Stress Disorder (“PTSD”). While every case is different, the FAA typically considers an airman’s current mental health status, whether the airman requires on-going treatment for symptoms, and the airman’s level of risk for recurrence of PTSD symptoms, to consider whether an airman is eligible for airman medical certification. The airman’s history will also be considered. Specifically, the FAA evaluates an airman’s history for the purposes of confirming whether symptoms have resolved, that the airman is not taking medication for PTSD, and that there is no history of other mental illness.

While your PTSD may be in remission, the FAA can still consider you for certification even if you are receiving counseling for PTSD. Specifically, the FAA will frequently issue a special issuance authorization to airmen who require ongoing counseling for PTSD. Typically, in order to maintain medical certification and special issuance for PTSD, the FAA will require that an airman provide frequent updates from a healthcare professional regarding treatment, status, and prognosis. The FAA doesn’t always require these updates be from a psychiatrist, but rather from either your primary care physician or counselor.

At the end of the day, it is possible to obtain a FAA medical certificate and VA benefits for PTSD at the same time. There are some tactics and strategy that may very well help you more easily demonstrate eligibility for certification with the FAA and move through the process faster. If you’d like to discuss how you can present your VA benefits for PTSD to the FAA, call the FAA medical attorneys at The Ison Law Firm.

Month: March 2021

Getting a FAA Medical Certificate with a Misdemeanor

Fighting a DOT alcohol test?

Can I Get a FAA Medical Certificate with a TBI?

FAA Medical and VA Benefits for PTSD

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