For the Record: Please keep off the grass

The Controlled Substances Act, a federal law from 1970, classifies marijuana and any material containing THC (the psychoactive chemical in marijuana) as a Schedule I controlled substance. Drugs can only be reclassified if the Drug Enforcement Administration makes certain findings, so any possession, cultivation, or distribution of marijuana—or its use on federal property—is still a federal offense punishable by fines, prison time, or both.

As a Schedule I drug, it is treated as illegal under the FARs regardless of whether recreational or medical use is permitted by state law. Several laws and regulations address airman use, possession, and/or carriage of marijuana; the FAA further addresses it in its medical standards.

Flying under the influence of marijuana is addressed by FAR 91.17, which states no person may act or attempt to act as a crewmember of a civil aircraft “while using any drug that affects the person’s faculties in any way contrary to safety.” The regulation does not establish a threshold for the presence of marijuana in the body, or specify a time period after use in which operations are prohibited. To date, no NTSB case addresses whether this rule or other general medical condition rules, such as FAR 61.53, prohibit any trace of marijuana in a person’s system.

FAR 91.19 prohibits anyone from operating a civil aircraft within the United States with the knowledge that marijuana is carried in the aircraft. An exception, added in 1969 and relatively untested, allows carriage of narcotic drugs, marijuana, and other substances “authorized by or under any Federal or State statute or by any Federal or State agency.” Without additional precedent, the meaning and intent of this exception is debatable. Any airman desiring to be a test case risks serious sanctions.

If an airman is found to have violated either of these regulations, FAR 61.15 provides that the airman’s pilot certificate may be suspended or revoked, or any application for a certificate or rating denied for up to one year. Revocation can be expected, as demonstrated by a recent NTSB decision upholding the revocation of a pilot’s certificate for carrying on his aircraft three chocolate bars containing THC that had been purchased legally in Colorado. The case has been appealed to U.S. Court of Appeals in Washington, D.C.

FAR 61.15 also imposes the same penalty for any airman convicted for violation of any federal or state statute relating to the growing, processing, manufacture, sale, disposition, possession, transportation, or importation of marijuana. Federal law provides for lifetime revocation of an airman’s certificate if an airman is convicted of certain crimes related to controlled substances, where an aircraft was used and the individual served as an airman, or was on the aircraft, in connection with the offense.

Severe consequences exist even when an airman’s marijuana use is far removed from any aircraft or flight activity. The FAA’s medical application asks whether an airman has been diagnosed with substance dependence or abuse, ever failed a drug test, or used an illegal substance in the last two years. “Substance” is defined by the FAA to include marijuana, and according to FAA guidance for medical examiners, any reported use of a controlled substance requires an application to be deferred, “even if legally allowed or prescribed under state law.”

Likewise, there are no exceptions to the reporting requirement for failed drug tests resulting from “legal” marijuana use. This reporting includes any and all positive drug tests whether administered at the federal, state, or local level, or by a private employer.

Airmen who report marijuana use on a medical application can expect to receive a letter from the FAA requiring a forensic urine drug screen be performed within 48 hours and sent to the FAA along with a statement concerning past, present, and future drug use. Each matter is handled on a case-by-case basis, but it is not unusual for a third class applicant to be required to undergo at least a substance abuse evaluation. Depending on the results, further treatment, such as drug and alcohol monitoring, could be required.

Any marijuana use by a pilot raises legal and safety issues, some of which may only become more complex as the legal landscape concerning marijuana changes. The best advice for pilots is to “just say no.” AOPA

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