Don't make a bad situation worse.
The arrest in early December of FAA Administrator Randy Babbitt on DWI charges serves as a good reminder that the things we pilots do when we are away from the airport can have an impact on our flying life as well.
No one plans to be arrested for DWI, yet it happens every day. Let's assume you have had one too many and the blue light special in your rearview mirror earns you a free ride to the county jail. Now what? You will likely want to hire a lawyer to defend you against the criminal charges. But what about your pilot certificate? Most criminal defense attorneys do not understand the details of the Federal Aviation Regulations (FARs), so you might want to consult a qualified aviation attorney…and fast!
FAR 61.15(e) requires all pilots to notify the FAA within 60 calendar days of the effective date of any alcohol-related conviction or administrative action. This seems pretty self-explanatory, but airmen frequently get it wrong. Let's look at the different parts of the rule and how pilots should handle this difficult situation.
Under FAR 61.15(c), an alcohol-related conviction is a conviction 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." This includes offenses such as driving under the influence (DUI), driving while impaired or driving while intoxicated (DWI), operating while under the influence, and driving with an unlawful blood alcohol level.
How do you know if you have been convicted? Seems like a simple question, but is it? It's a pretty safe bet that if you are sentenced to jail time, you have been convicted. Fortunately, not all convictions lead to jail time. You may be sentenced to community service or "time served" (you would normally go to jail, but the court gives you credit for the time you spent in jail waiting for your trial). You may receive a suspended sentence, probation, or be ordered to attend to an alcohol awareness program or similar treatment program. In most cases, these are all considered convictions, and must be reported to the FAA within 60 days.
Some states offer programs which suspend your case for a period of time, often a year or two, and if you have no further problems with alcohol, the charges against you are dismissed. In most cases, this is not a conviction, but again, you should ask your criminal attorney specifically whether this is a conviction.
Here is a good time to mention expungement. Many states offer an expungment program in which first offenses can be expunged or removed from a person's record after a period of time. Many people refer to these programs as making it "as if it never happened." While that may be good for your life in general, in the view of the FAA, you have still been convicted, and you must report that to the FAA. The expungement cleans up your record, but the fact is that you were still convicted.
There is some good news for the pilot. What if you are convicted of a different offense? In some cases, the charges against you may be changed to reckless driving, careless driving, or negligent driving. If you are convicted of one of these charges, you have not been convicted of an alcohol-related offense, and you do not need to report these to the FAA under 61.15(e). But you are not out of the woods yet…read on to learn about medical certification issues.
The FAA considers the suspension, revocation or cancellation of your driving privileges to be reportable motor vehicle actions (MVA) under 61.15(e). You have 60 calendar days from the effective date of any of these events to report the event to the FAA. You are required to report these events even if you are never convicted of any crime. For example, in many states, if you refuse to submit to a breathalyzer test, your driver's license will be automatically suspended. Even if you are ultimately found not guilty of all charges, the fact remains that your driver's license was suspended for an alcohol-related cause, and that must be reported to the FAA. Refusing to submit to a breathalyzer or blood test when requested by a law enforcement officer is itself grounds for the FAA to suspend, revoke or deny any certificate, rating or authorization under FAR 61.16.
Your reporting obligations do not end with your report under 61.15(e).
The next time you apply for a medical certificate, you are required to report all arrests, convictions and administrative actions. Yes, on the current Form 8500-8 (the medical certificate application) you must now report alcohol-related arrests, even if you were never convicted!
Reporting an alcohol-related event to the FAA under 61.15(e) does NOT mean you are no longer required to report the same event on your medical application. The FAA considers the report under 61.15(e) as a different requirement which is not related to the medical certification process. Failing to make either report when required will cause problems for the airman.
So What Should You Do? And What Shouldn't You Do?
Make all required reports to the FAA at the required times. Do not ignore the event or try to cover it up.
Some airmen try to conceal their alcohol-related issues. This is a bad idea! When you sign your medical application, you authorize the FAA to access all information in the National Driver Register (NDR) which will reveal all arrests and convictions related to alcohol. It doesn't matter whether your criminal record has been expunged by your state court, the NDR will still reveal your arrest.
Failing to report alcohol-related arrests, convictions and administrative actions on your medical application just makes things worse. Then, instead of just having an alcohol-related event to worry about, you have also falsified an application for a certificate, which is itself grounds for revocation of all your certificates. A bad situation has just gotten much worse!
You Do the Right Thing…What Happens?
When the FAA becomes aware of an alcohol-related event, they will open a case file and pull your driver history from the NDR to verify their information. For a first alcohol-related event, assuming everything matches and you reported the event within 60 calendar days, the case will likely be closed without any administrative action by the FAA.
At the time of your next medical, you report the alcohol-related event on the application. Your AME may require the court documents and ask questions about the event. If you have had previous alcohol-related events, if you refused to submit to a breathalyzer or blood test, or if your blood alcohol level was .15 or higher, your AME will defer your medical certification to the FAA for further consideration. The FAA will likely require you to submit to a substance abuse evaluation by a certified counselor.
Your current medical is still valid during the FAA review, which can take several months. However, if your medical expires during that time, you are no longer legal to fly. So if you have an alcohol-related event, it is a good idea to start the medical certification process early.
As you might expect, subsequent alcohol-related events are scrutinized much more closely by the FAA. Two or more MVAs within 3 years, is a violation of FAR 61.15(d) and the FAA may deny, suspend or revoke any certificate, rating or authorization. Medical certification after multiple alcohol-related events is possible, but it is not easy.
Remember, your reporting requirements to the FAA are different than your criminal defense. Be sure to seek counsel who is familiar with FAA reporting procedures and will be able to effectively defend you against the FAA.