In Petition of Niehens the NTSB affirmed an ALJ’s dismissal of petitioner’s challenge of the Administrator’s denial of his application for an airman medical certification. The FAA had denied the petitioner’s application claiming that he did not qualify because he had a history of alcohol dependence without satisfactory clinical evidence of recovery, as well as a history of alcohol abuse. The ALJ granted summary judgment to the FAA based upon the finding that the petitioner’s two motor vehicle actions, when considered together, demonstrated alcohol abuse based upon petitioner’s use of alcohol in a situation in which that use was physically hazardous.
The NTSB deferred to the Administrators interpretion of the regulatory language at issue in the case (“use of a substance in a situation in which that use was physically hazardous”) “to include alcohol use, regardless of whether that use was illegal or resulted in a conviction, in a situation that involves operation of a motor vehicle.” Based upon the FAA’s interpretation, the Board rejected the petitioner’s argument that the Administrator must show that he was legally intoxicated or mentally impaired by alcohol at the time of both motor vehicle actions that underlie the denial of his medical certification.
The Board noted that “the issue is not whether petitioner is or was guilty of criminally operating a motor vehicle while intoxicated, but, rather, whether a preponderance of the material, reliable and probative evidence sufficiently demonstrates that the Administrator had adequate justification for her medical determination that petitioner abused alcohol.” It went on to find that both motor vehicle actions met the FAA’s evidentiary burden and, based upon the FAA’s interpretation of the regulations and the Board’s required deference to that interpretation, the FAA’s denial of petitioner’s medical certificate was justified.
This case presents a good example of the uphill battle an airman faces in obtaining a medical certificate after multiple alcohol related motor vehicle actions. It is important to note that convictions for DWI/DUI are not necessary to justify a finding of disqualification. The obvious and often repeated moral of this story is to not drink and drive. This is even more important if an airman already has one DWI on his or her record. In either situation, it is simply not worth the risk.
