June 1, 2008
By John S. Yodice
John S. Yodice is the legal counsel for AOPA.
Here is an operational rule that general aviation pilots don’t run into very often. It is worth our review precisely because it is not well known in GA, and because we now have a recent case alerting us that the FAA may well enforce it.
FAR 91.17, governing “alcohol or drugs,” has a subsection (b) that prohibits the carrying of apparently intoxicated passengers: “Except in an emergency, no pilot of a civil aircraft may allow a person who appears to be intoxicated or who demonstrates by manner or physical indications that the individual is under the influence of drugs (except a medical patient under proper care) to be carried in the aircraft.”
In this case, the FAA suspended the commercial pilot certificate of the pilot of a Piper Navajo for 180 days, primarily charging him with a number of violations of the FARs that deal with commercial operations. The FAA also charged the pilot with operating a flight with intoxicated passengers on board in violation of FAR 91.17(b). The pilot appealed the charges to the National Transportation Safety Board. After a hearing before an administrative law judge of the NTSB, the judge dismissed all of the charges. On the primary charges dealing with the alleged commercial operation, the judge found that the FAA evidence did not support the charges that the flights were performed for compensation or hire. The judge dismissed those charges. The FAA did not appeal that finding to the full NTSB. On the “intoxicated passenger” charges, the judge found that FAR 91.17(b) was “inapplicable.” The FAA did appeal the “intoxicated-passenger” charges, in the process making it clear that the FAA considers that the rule applies to private, non-commercial operations as well as commercial operations.
At the hearing before the law judge, the evidence on the “intoxicated passenger” charge showed that the FAA was conducting a surveillance program at the Talladega, Alabama, airport. The airport is adjacent to the Talladega Speedway. It was on a Sunday during a race weekend. The FAA was there because the race invites a high volume of aircraft operations in a short timeframe over the weekend. According to the FAA, “at several points during that day, that airport is the busiest one in the United States.”
At the end of the race day, one of the FAA aviation inspectors on duty spoke to one of the Navajo’s passengers who appeared to be “kind of disheveled” and on whom he could smell alcohol. The inspector said that the passenger did not have trouble speaking, nor did he have slurred speech, but that it was obvious “he had a couple of drinks during the day,” based on “just general demeanor...very happy, loud, boisterous.” The inspector saw another of the Navajo’s passengers, a young lady, walking to a portable toilet, “staggering a little bit, swaying.” She appeared to have some difficulty walking. The male passenger put his arm around her waist and assisted her back to the aircraft. The inspector asked if she was OK. According to the inspector, the male passenger answered, “she’s just [expletive]-faced” (this statement was denied by the male passenger). She was helped into the aircraft. The inspector concluded that both passengers were drunk and that they were “just allowed” by the Navajo pilot to board the aircraft.
Another inspector on duty also testified at the hearing to the events at the aircraft boarding. He testified that the male passenger’s speech was slurred, his eyes were glassy, and there was alcohol on his breath. He made a note that the male passenger was “drunk as a coot.”
The male passenger was called as an FAA witness at the hearing. He said that he and the other passengers did have a few drinks and “had a big time” at the race, which was “the reason we went.” He thought that the lady he helped “was more wore out from not ever going to a race” and was exhausted after attending the race and walking to and from the racetrack, but that she also might have had a lot to drink. He did not remember telling anybody that she was “[expletive]-faced,” and that it was not a term he would use.
The Navajo pilot appeared and testified on his own behalf, vigorously denying the charges. He testified that he didn’t carry any passengers whom he “would consider intoxicated.” He explained that the passengers had walked back to the airplane from the race on a 90- to 100-degree day, and that the female passenger appeared to be hot and exhausted from being out in the sun. He didn’t smell alcohol on her breath, and she seemed to be fine when they deplaned. None of his passengers appeared to him to be intoxicated.
The judge, in throwing out the commercial charges, also found that the FAR 91.17(b) “intoxicated passenger” charges to be inapplicable. The board was dissatisfied that the judge did not explain why the charges did not apply. The board concluded that the judge must further explain his ruling. The board sent the case back to the judge for findings and conclusions as to the intoxicated-passenger charges and a more expansive explanation of his legal rulings.
It is clear that both the FAA and the NTSB consider that the prohibition against carrying apparently intoxicated passengers applies to GA, purely private, Part 91 operations. Although we don’t hear much about the application of the rule in GA, we can now see that the FAA may well seek to enforce it in the future.
The FAA has asked the National Transportation Safety Board to review a judge’s ruling reversing a fine it levied in an unmanned-aircraft case.
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