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Update On The Consequences Of An Airman’s First DWI

by Greg Reigel 1. December 2009 00:00
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With the holidays upon us, and the multitude of parties serving holiday "cheer" during this season, airmen should be aware of the FAA's revised policy regarding its treatment of an airman who is arrested for his or her first driving-while-intoxicated ("DWI") violation. (This also includes similar charges such as driving-under-the-influence ("DUI") and operating-while-intoxicated ("OWI") etc.).

The Old Policy

Up until now, an airman's first DWI offense was a "gimme." Although the aviation medical examiner ("AME") was supposed to obtain court documents from the airman relating to the offense (which didn't always happen) and question the airman about his or her alcohol or drug use to determine if the airman had a substance abuse problem, the FAA did not require any further information or explanation from the airman and the DWI did not have any adverse impact on the airman's ability to obtain a medical certificate. However, that has changed.

The New Policy

According to the Winter Edition of The Federal Air Surgeon's Medical Bulletin, under the new policy when an airman reports a DWI on his or her medical application, the airman will still have to provide the AME with copies of the court documents relating to the offense and the AME will question the airman about his or her alcohol or drug use to determine if the airman has a substance abuse/chemical dependency condition. If the airman's blood alcohol content ("BAC") was 0.15 or less, and the AME doesn't believe the airman is otherwise ineligible, the AME will issue the airman his or her medical certificate.

However, if the airman's BAC was greater than 0.15 or the airman refused to let the police take a sample, the AME may not issue the medical certificate and will have to defer the medical application to the FAA's Aerospace Medical Certification Division in Oklahoma City. When the Medical Certification folks receive the application, they will require that the airman obtain a substance abuse evaluation from a recognized counselor before they will consider issuing the airman a medical certificate.

The practical effect of the new policy on an airman arrested for DWI with a.0.15 or less BAC is really no different than it is currently. As you should know, FAR §61.15 requires an airman to make a written report to the FAA Civil Aviation Security Division if his or her drivers license is administratively suspended as a result of an arrest for a DWI, and again if the airman is ultimately convicted of DWI.

In the majority of states, a driver's license is administratively suspended automatically under the applicable implied consent statute when the driver is arrested for DWI. Thus, when an airman is arrested for DWI in most states, the resulting administrative implied consent suspension must be reported to the FAA under FAR §61.15 even though the arrest has not resulted in a conviction (which, if it subsequently happens, must also be reported). Thus, the FAA will receive information of the "arrest" regardless of whether an airman has also disclosed it on a medical application.

However, for an airman who had a BAC greater than 0.15 the new policy's impact could be more significant. Depending upon the circumstances surrounding the DWI, which will be reviewed in the court records, and the results of the evaluation, the FAA could determine that the airman has a chemical dependency/substance abuse condition that makes the airman ineligible for a medical certificate. In that instance the FAA would deny the airman's application for a medical certificate even though the airman may ultimately beat the DWI charge and avoid a conviction.

At first, this new policy may appear to create new incentive for an airman with a BAC greater than 0.15 not to disclose the DWI on his or her medical application. After all, an airman might wonder, "if I don't disclose the offense, how will the FAA know?" However, omitting the DWI information from a medical application is not recommended because the FAA will, eventually, find out about the DWI.

When an airman signs the medical application, he or she gives the FAA permission to search the National Driver Registry. Each week, the FAA Security Division sends airmen-identifying information to the registry and, if they receive a "hit," the FAA checks the airman's medical examination records to see if the airman reported the DWI as required. Thus, the chances of getting caught at some point in time are pretty good. Also keep in mind that the consequences for failing to disclose the DWI arrest or conviction on the medical application remain severe: Revocation of all airmen certificates.

Conclusion

The FAA is getting even more serious about airmen arrested and/or convicted for alcohol related driving offenses. At this time of year when opportunities abound for celebration and consumption of holiday "cheer", exercise discretion and drink responsibly.

I wish you all safe and happy holidays!

For more information regarding aviation law, safety and security, e-mail Greg at greigel@aerolegalservices.com or visit his website at www.aerolegalservices.com.

My question to you this month is; Do you believe that the FAA should have the ability to run your records with the National Driver Registry? If not why?

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Greg Reigel



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