Greg Reigel's Aero Legal Services

Flying Through The Turbulence Of A Second DWI

By Gregory J. Reigel

© 2005 All rights reserved.

What happens to a pilot who is charged with his or her second DWI/DUI or other alcohol related offense? First, the reporting requirements of FAR 61.15(e) apply. For more information on these requirements, please review my January 2005 article on the topic here. If the second DWI is within 3 years of the first, FAR 61.15(d) will require denial of an application for any certificate or rating for a period of up to 1 year after the date of the last DWI or suspension or revocation of any certificate or rating.

However, if the second DWI occurs more than 3 years after the first, then absent any unusual or mitigating circumstances that may result in more immediate and drastic action by the FAA, the process will likely be as follows. Please note that the following description is general and is not intended to cover all of the possible scenarios. But it will give you an idea of what an airman can expect if he or she ends up in this unenviable position.

First, the airman will receive a letter acknowledging the airman’s report of the second DWI and noting that the airman has had a previous DWI. The FAA will claim that this “history of alcohol related offenses” may indicate an alcohol abuse or dependence situation. Based upon this concern, the FAA will demand that the airman provide additional information for them to review, including copies of court records with associated police/investigative reports relating to the latest DWI, and all records associated with any care, treatment, or assessment/evaluations for alcohol abuse or related disorders. The FAA will also want a complete copy of the airman’s current driving record from any state in which the airman has held a driver’s license.

These requests are usually easy to satisfy by simply tracking down the related records and obtaining copies from the courts, departments of motor vehicles and medical providers. However, depending upon how long ago the first DWI occurred, if it was many years in the past it may be difficult or even impossible to obtain copies of all the court records due to record retention policies that may have resulted in destruction or minimal archiving of the records. If this is the case, the airman will need to advise the FAA of that fact.

Next, the FAA requests a detailed description of the airman’s past to present alcohol use and of the circumstances surrounding each of the DWI’s. This request can be problematic for an airman. The request is broad and vague at least as it relates to “past and present alcohol use.” In responding to this request, an airman must be careful how much information he or she provides, as well as what information he or she provides to the FAA.

Don’t get me wrong: the airman’s answers must be honest and truthful. However, detailing every single drink the airman has ever had is not necessary. By the same token, simply stating that the airman has had a few drinks will likely not be sufficient. The insight of an experienced aviation attorney can certainly help the airman find a happy medium when responding to this request without making the airman's situation worse.

Finally, the FAA will likely request complete copies of a current evaluation from a certified substance abuse specialist or addictionologist. The FAA supplies guidelines for obtaining the evaluation. The evaluation must address the airman’s complete alcohol related history of usage and all DWI’s/offenses and should include copies of all testing performed, if any, with a final diagnosis.

Here again, the assistance of an aviation attorney can be invaluable. Not only can the aviation attorney help the airman select the right evaluator, but he or she can also prepare the airman for the evaluation and work with the evaluator to ensure that the evaluation portrays the airman in an accurate and hopefully favorable light. The aviation attorney will not be able to tell the evaluator exactly what to say. However, to the extent allowed, the aviation attorney will discuss with the evaluator his or her findings and how those findings are presented in the evaluator’s final diagnosis. This will help to ensure that the evaluator’s report is accurate and fair to the airman.

The FAA usually demands that all of this information be provided to them within 30 days of the date of their letter and includes the threat that an enforcement action will be initiated against the airman if the information is not received. Upon receipt, the FAA then reviews and evaluates the information to determine whether or not they think the airman is still qualified to hold an airman medical certificate.

Once the FAA completes its review, the case can take one of two turns. First, and ideally, the FAA can determine that the circumstances surrounding the offenses and the information provided by the airman do not indicate an alcohol problem and the FAA then closes the file. Alternatively, and more likely, the FAA will claim that the evidence indicates that the airman has a “condition” that disqualifies him or her from holding an airman medical certificate. I say “condition”, because depending upon who is handling the file and sending out the letters from Oklahoma City, the condition could be termed “alcoholism”, “alcohol dependence” or “substance abuse”.

Regardless of how the FAA characterizes the problem, the FAA will send an additional letter to the airman indicating that the condition disqualifies him or her from holding an airman medical certificate. The letter will request, but not demand, that the airman surrender his or her medical certificate to the FAA. It will also indicate that if the airman does not surrender the medical certificate, the file will be sent to the FAA counsel’s office for legal enforcement action.

At this point the airman has two choices: Surrender the certificate or keep the certificate and continue to fly. If the airman surrenders the certificate, the FAA will close the file. The airman would then be able to reapply for a new medical certificate once he or she has met the requirements of FAR Part 67. Alternatively, if the airman is employed by a Part 121 scheduled air carrier or a Part 135 air taxi operator or certain Part 91 commercial operators he or she may be able to apply for a special issuance. These procedures are beyond the scope of this article, but may be found in FAR Part 67.

If the airman fails to surrender the medical certificate, he or she can expect to receive another letter from the FAA noting the failure to surrender, repeating the request to surrender and again threatening legal enforcement action if the airman fails to comply. The letter will also refer the airman to FAR 61.53 (Prohibition on operations during medical deficiency) and “caution” that in view of its findings of disqualification any exercise of the privileges of the airman’s medical certificate would be a violation.

What happens next if the airman continues to refuse to surrender the medical certificate will depend upon the circumstances of each case and the information that the FAA has in its possession. If the FAA believes that the airman is continuing to fly, an emergency revocation action is likely. At a minimum, the airman can probably expect a standard enforcement action if an emergency revocation action is not initiated within 3 or 4 months. It is also possible that a civil penalty of up to $1,100.00 per day could be assessed against the airman for failure to surrender the medical certificate. However, as a practical matter, certificate action is more likely.

Of course, whether or when this actually happens will depend upon the workload of the regional FAA counsel’s office and the diligence of the attorney to whom the file has been assigned. It isn’t unusual for some of these cases to sit in limbo for over a year before the FAA counsel’s office actually initiates some type of action. In the meantime, this leaves the airman in a precarious position. He or she is either grounded or the airman continues to fly at the risk of violating FAR 61.53. Not a good situation. Unfortunately, at that point the ball is in the FAA’s court and the airman has few if any options.

Depending upon the timing, it is possible that the airman’s medical certificate will completely expire during this process. If it expires, absent any claimed violations of FAR 61.53, the FAA should close the file. However, if the medical certificate simply reverts from a first-class to a second-class or from a second-class to a third-class, it is possible for the airman to apply for a new first or second-class medical certificate while the case is pending. Unfortunately, this is probably futile.

Upon the airman’s disclosure of the second DWI and the current claim of disqualification by the FAA, the FAA medical examiner should defer the airman’s application to Oklahoma City. Shortly thereafter the airman can expect to receive a denial from the FAA based upon its belief that the airman is not qualified. The airman has the right to request reconsideration of the denial and should exercise that right even though at this point the request for reconsideration will be placed on hold pending the outcome of the FAA’s request for surrender of the original medical certificate.

Once the case gets to this point, it becomes a waiting game. Although it may be possible for an aviation attorney to expedite the case with the FAA counsel, this is not always the case. This is especially true in the current climate in which the FAA is understaffed and overwhelmed with post-9/11 airspace violations. At some point, either the FAA will initiate certificate or civil penalty action or the medical will expire. If the FAA initiates action, the airman will be able to appeal and force the FAA to prove that the airman is disqualified from holding his or her airman medical certificate. Not an ideal situation, but at least the airman has the opportunity to obtain a final resolution of the matter.

To be sure, if a pilot receives a second DWI, he or she will most likely be grounded for an extended period of time. The best and most obvious advice is to not allow this to happen. However, if it does, get help immediately. Although an aviation attorney may not be able to prevent an airman from getting his or her proverbial wings clipped, he or she can certainly help to guide an airman through the process in the most efficient manner and minimize the time the airman is grounded.