The Florida state court trial of the America West pilots accused of operating an Airbus 319 while intoxicated began yesterday. As you may recall, the two former America West Airlines pilots were indicted in Miami on charges of being under the influence of alcohol while they were behind the controls of an Airbus 319 loaded with passengers. When tested following their arrest, both men had a blood alcohol content in excess of the state limit of .08, but below the federal limit of .10.
The State of Florida initially prosecuted the pilots, but a federal court dismissed the charges ruling that federal law pre-empted state law regarding pilot qualifications. The state appealed that ruling and the 11th Circuit Court of Appeals reversed the district court’s dismissal of the state’s charges holding that the federal laws did not pre-empt the state’s prosecution of the pilots for operating an aircraft while intoxicated. The U.S. Supreme Court then denied the pilots’ petition seeking a reversal of the 11th Circuit Court of Appeals reinstatement of the state’s charges.
During opening arguments, the defense attorney argued that the pilots were not impaired even if they smelled of alcohol after a night of heavy drinking and regardless, they were not in full control of their taxiing aircraft because it was being towed. Apparently the nose-gear steering in the cockpit is disabled while the aircraft is being towed. Personally, I think they are going to have a tough time with these arguments.
With respect to the impairment issue, the state has the BAC tests showing .08, testimony regarding the quantity of alcohol consumed by the pilots and apparently video showing the pilots drinking at the bar until approximately 6 hours before their flight. It will be difficult to rebut this evidence.
The “operating an aircraft” element is going to be the more interesting issue. If driving while intoxicated case law is used by analogy, this argument actually won’t make it very far. At least under Minnesota case law, the threshold for being in “control” of a motor vehicle for purposes of determining whether a person was “operating” the vehicle is very low. If you are sleeping in the back seat of the vehicle, with the vehicle turned off and the keys in your pocket, you are considered to be operating.
If this analogy applies to operating an aircraft, I don’t think there is any doubt that these pilots were “operating” the aircraft, regardless of whether the steering was disabled. Certainly they were performing pre-start and/or pre-flight checklists which include operating and testing aircraft systems. The testimony regarding this issue will be interesting to hear.
In the end it is still an unfortunate situation and will result in negative publicity for pilots and for aviation. However, from a legal perspective, it will definitely make for good reading.