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DUI, Your Certificate and the Scales of Justice

'Honest, ociffer, all I had was boo tears - or maybe she was a gas of wine.....''Honest, ociffer, all I had was boo tears -- or maybe she was a gas of wine. . . . . '

You're about to complete your private pilot training and are ready to obtain that student pilot certificate so you can solo and move on to some real flying. All you need to do is pass the medical exam. So, you present yourself, confident and healthy, in the Designated Medical Examiner’s (DME) office. Suddenly, things change. Question number 18 leaps out at you: 'Have you ever had or have you now any of the following . . .?' Then, under subsection 'n' you see 'substance dependence or failed a drug test ever; or substance abuse or use of illegal substance in the last five years.' Oh dear. That DUI was seven years ago, and you haven't touched a drop for about six months (doctor's orders after some surgery), and while you may have a few too many on special occasions, you don't consider yourself an alcoholic. Besides, you attended AA meetings for a year after your DUI as part of your probation, and that experience left you with the conviction that you aren't 'like them' and don't have a drinking problem. What to do?

Being Honest
Honesty is the best policy, so you answer in the affirmative and offer an explanation in the space provided. The DME queries further and you disclose that, in addition to the DUI, you broke your hand a couple of years later but can't recall the circumstances. You decided it was time to take a rest from alcohol for awhile, so you returned to AA meetings for a few months.

The DME sends off his results to Oklahoma City, and six months later you get a polite letter from the FAA. Your application is denied because you are an alcoholic.

Is your aviation career over before it starts? Maybe not.

Appealing the “Verdict”
The burden is on a pilot to demonstrate his entitlement to an airman's certificate, in a hearing before a NTSB Administrative Law Judge. You will need to present evidence to the effect that you are not alcoholic. Perhaps a letter from your attending physician, testimony from a cooperative spouse or relative and your own testimony attesting to your good character and stability ('I never have more than two beers') will serve you well. If it turns out that you really only had those “two beers,” your blood alcohol level was just barely over the legal limit and you've had no further scrapes with the law, that might suggest that this was a one-time event. The NTSB might accept that you really aren't a substance abuser and since the FAA's own medical expert (Federal Air Surgeon) said that you’re an alcoholic, the burden now shifts to the agency to rebut evidence that you aren't -- and they must do so with more than mere speculation from an air surgeon.

If your 'social history' after your DUI includes things like a divorce, job loss, financial and interpersonal problems, etc., a medical expert (read: psychiatrist) and perhaps the ALJ and Board may be inclined to view your chaotic lifestyle as solid evidence of alcoholism. If, on the other hand, you’ve led a nice boring life since then they may feel differently. In fact, it may take a hospitalization and/or rehabilitation program with a medical diagnosis of chemical dependency to meet the Director's burden of showing disqualification for alcoholism or substance abuse.

BOTTOM LINE: These are highly individual cases and in the end, it’s all in the eye of the beholder...

Editor's note: For the FAA's angle on DUI, also take a look at http://www.mmac.jccbi.gov/cas/duidwi/index.html

Opinion and Order of the NTSB in the Petition of DON BATES [NTSB Order EA-4195; Docket SM-4080] 1994.

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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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