Should Pilots Take the Breath Test if Pulled Over for Suspicion of DWI?

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

“Should I take the tests?” is the number one question I get asked in my practice regarding DWI arrests. For people in most professions, my usual answer corresponds with what I believe 99% of criminal defense attorneys think, which is “less is always best”. Simply put, the less evidence there is against you, specifically no field sobriety tests, no breath test, the better the case will be for you at trial. Yes, if you politely refuse the tests you will be arrested, but the end result may be an acquittal at trial due to lack of evidence.

For pilots however, my advice is totally different. For a pilot, especially a commercial pilot who earns a living flying, keeping peace with the FAA is the primary concern. In short, if a pilot refuses a breath or blood test, their license is in serious jeopardy.

Two things will red flag a pilot on a DWI stop and if either of these two events occur the FAA will assume the pilot has a substance abuse problem—even on a first offense. The first is if pilot refuses a breath or blood test and the second is if the pilot has a blood alcohol content (BAC) of over .15 (.08 is the legal limit in most states). The refusal or high BAC send strong signals to the FAA and you just can’t un-ring the bell if it happens.

So, what happens next? With a pending DWI case regardless of the BAC, the next medical examination for the pilot could be a huge shock. The AME will have no choice but to defer the FAA medical application. And that will end the flying until a time when the pilot can get his medical back. The trap door on the medical application is at line 18.v of FAA Form 8500-8, which asks the pilot to report “arrests, convictions and administrative actions”. When a pilot checks that box “yes” following a DWI arrest, the local AME will be required to transfer this application to the FAA’s aerospace medical certification division for further review.

If the medical application is deferred, it’s a long road back for the pilot. At that point, the pilot must receive a substance-abuse evaluation from a recognized counselor (DOT substance abuse professional) in order to be further considered for a medical certificate. This can be a very expensive and lengthy process. An AME cannot perform this evaluation without additional certification by the DOT (not the FAA). This makes the renewal process longer and more arduous.

As you can see, the choices people make can have a huge impact on their careers, especially if you have a professional license on the line, like a pilot. If you want to drink, take an Ubur. It’s just not worth it.

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