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Flying With an Expired Medical

An airman's certificate is an airman's certificate is an airman's certificate, except when it is a medical certificate, or is it?An airman's certificate is an airman's certificate is an airman's certificate, except when it is a medical certificate, or is it?

What follows is the tangled case of a pilot who let his medical lapse, and found himself facing criminal charges for operating an aircraft without a valid airman's certificate. Criminal charges? ...for an expired medical? How can that be? Keep reading.

The Case
A private pilot who held an airman's certificate authorizing him to act as pilot of a single engine aircraft was charged in a three-count indictment with one count of serving as a pilot of an aircraft without a valid airman's certificate in violation of 49 U.S.C.App. § 1472(b)(1)(E) [now 49 U.S.C. § 46306(b)(7)], and two counts of serving as pilot of a twin-engine aircraft without a valid airman's certificate in connection with the transportation of marijuana. These incidents occurred a year or so after the pilot's medical [apparently either a third or second class] had expired.

The pilot's airman's certificate had never been revoked or suspended since it was issued seven years before. The rating on his certificate authorized operations of 'airplane, single-engine land' only.

The Attack
Apparently not satisfied with merely pursuing criminal charges against the pilot solely for transporting “Maui-Wowie,” the ever-vigilant U.S Attorney obtained indictments for acting as PIC of an aircraft without a valid certificate, which was and is a federal crime, punishable by a fine and imprisonment for up to three years.

Note 1: Transporting controlled substances gets you up to five years, and [as we discussed in last week’s article (last week's article) the feds can seize your flying machine and sell it at auction in a forfeiture action.

Note 2: The U.S. Customs storage facilities around the country are full of really neat -- if funky smelling -- airplanes seized under this statute.

The Defense
The pilot argued that he indeed possessed a valid airman's certificate; that a medical certificate is not the same as an airman's certificate; and that, while operating a twin with only a single-engine endorsement may be a safety violation subject to civil penalties, it is not a crime to do so.

Round 1: The government countered by claiming that a medical certificate is one and the same as an airman's certificate, relying upon 49 C.F.R. § 61.3(a) and (c). The District Court judge agreed with the pilot and dismissed the indictment, and the government appealed...

Round 2: The United States Court of Appeals for the Fifth Circuit upheld the district judge's decision. It observed that the pilot was liable for civil penalties for his violations of the safety regulations, but ruled that he held a valid airman's certificate that permitted him to act in the capacity of private pilot, and therefore did not violate the criminal statutes.

TRANSLATION: the medical certificate is not equivalent to an airman's certificate for purposes of the federal criminal laws.

Moral: While it is not advisable to operate an aircraft without a current medical certificate, or without an appropriate rating for the class and category of aircraft, the worst that can happen is a civil penalty [and possibly forfeiture of the aircraft] but you won't go to prison for it. Still, NEVER underestimate the creativity of government lawyers looking for a way to tack on a few extra years to an indictment by charging a violation of federal aviation law.

United States v. Evinger (1990) 919 F.2d 381 [Fifth Circuit]

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About This Author:
As a practicing attorney, Douglas Marshall was admitted to the California Bar in 1973; the Ninth Circuit, all CA federal courts in 1973-79; and the US Supreme Court in 1984. He has represented individual certificate holders in FAA enforcement matters and several major airlines in labor litigation and mediation.

Marshall is currently an Assistant Professor of Aviation at the University of North Dakota, where he teaches aerospace law and airline operations and management.

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