As a follow up to my March 30, 2004 post in which I discussed an Aloha Airlines first officer’s arrest for intending to operate an aircraft while under the influence of alcohol, the NTSB has affirmed the emergency revocation of the pilot’s ATP and medical certificates. If you will recall, at the time of my post only limited information was available. The media reported that the pilot allegedly blew a .182 on the breathalyzer, well beyond the California state legal limit of .08 and the FAA limit of .04. Unfortunately, without more information it was difficult to disregard my skepticism of the media’s objectivity and to arrive at a conclusion as to what had really happened. However, with the release of the NTSB’s opinion, we now know the rest of the story.
In Administrator v. Poweleit the administrator issued an emergency order revoking the pilot’s ATP and First Class medical certificates alleging that, on March 27, 2004, the pilot attempted to act as first officer on Aloha Airlines flight 441 from Oakland, California, to Honolulu, Hawaii, when he had a blood alcohol concentration of .182 and .179 according to Breathalyzer tests conducted at 9:14 a.m. and 9:16 a.m. After a two-day layover, the pilot missed the crew van to the airport despite repeated attempts by the captain to awaken or reach the pilot. The pilot then showed up at the airport 45 minutes later and was noted by the TSA checkpoint agents as having a strong odor of alcohol on his breath. The police were called and arrived at the gate to find the pilot in the jetway. When the police officer confronted the pilot, he observed that the pilot “smelled strongly of alcohol, was very nervous, had watery red eyes, and did not speak clearly.” The pilot also stated that “he was ‘working … flight 441 to Hawaii.'” After an extended attempt to hide in the aircraft’s lavatory, the pilot was then escorted to the police station where he submitted to the breathalyzer tests.
At the hearing, the ALJ “found that the preponderance of the evidence established that respondent reported to the airport with the intent of fulfilling his assignment as the first officer of the flight.” The ALJ also rejected the pilot’s arguments that an affidavit from the captain submitted by the FAA was inadmissible and that the breathalyzer results were not reliable because the machine had not been calibrated within the time period established by California law.
On appeal, the Board also rejected the pilot’s arguments that he did not attempt to act as a crewmember; that the law judge erred in admitting the captain’s affidavit into evidence because respondent was thereby denied the opportunity to cross-examine him; and that the law judge erred in admitting the Breathalyzer test results because the machine was not calibrated as frequently as required by California law. The Board noted that the ALJ had sufficient evidence to find that the pilot intended to act as a crewmember even without the captain’s affidavit. It also noted that the Board is not bound by California law regarding the testing/reliability of the breathalyzer test and that the evidence overwhelmingly supported the reliablity of the breathalyzer test results.
Although this is an unfortunate result for the pilot, it appears that based upon the evidence discussed in the opinion it is probably the right decision. What is more unfortunate is that these cases happen at all. Not only does it exhibit bad judgment on the part of some pilots, but it also allows the public’s misperceptions regarding drinking pilots to persist. And make no mistake, the FAA has taken, and I believe will continue to take, a zero tolerance position regarding enforcement in these situations.
