CNN: Pilots accused of being drunk indicted

[Looking4Traffic]

Quote:
Originally Posted by satpak77
I appreciate your posts, but, uh, I think I am just a little closer to the legal process than you are.....nothing more needed to be said


I'm not sure what this means -- you're a lawyer or a busted pilot?

If it's the former, than no, you're not any closer. If it's the later, good luck to you and I'm sorry to hear about your troubles. Best of luck.

 

[Resume Writer]

I am not going to get into a debate about whether or not these two had been drinking, as I was not there. When another AWA Captain came up to me at a Diamondbacks game the day this happened and told me two pilots had been busted for drinking, he could not remember who it was. Trust me, these two NEVER entered my mind.

From what I have been told, the aircraft was never released from the tug and tow bar, so the a/c was not under their command (if I understand the regulations right). Further, when these two asked to have a blood alcohol test, apparently it was not administered to them. (I cannot tell you how I know this, I just do.) They did, at least, have the fortitude to take off their pilot uniforms before the press got there.

Have they put a "black mark" on other pilots because of this? Yes. But let's let them have their day in court and be judged. I have flown with the Captain many times and he was always the utmost professional. I consider him a friend and have watched the toll this has taken on him and his family. However, I will say that if he indeed was drinking within the 8 hours (AWA is 12 hours), then something needs to be done.

I know for myself, I always took the 12 hour rule very seriously. When flights crews have the lives of passengers at stake, whether it be pilots or FA's, they have no business drinking inside the allocated time limits.

As the saying goes - live as if you are going to be found out, because you always will.

Kathy

 

[Resume Writer]

blzr-

By the way, you can get a dui in a parked car as long as the keys are in the ignition.

Let me take this one further. My mother is an ex DPS officer, as well as my dad, who is an ex PHX PD Officer. If the keys are anywhere you can reach them, you can be charged with DUI. So, putting them on the floor board, or dropping them just outside the car is not good enough.

However, people should not be drinking and driving. Call a cab if you are that drunk. I do not want to be on the receiving end of someone out of control in a vehicle that has been drinking.

Kathy

 

[blzr]

technically they were out of control... for the state of FLA, but below out of control on the federal level.

I just hate hearing they were flying under the influence when they weren't. Doesn't mean they weren't going to, just that they weren't.

We all make mistakes, we just don't always get caught.

 

[satpak77]

official press release

http://www.usdoj.gov/usao/fls/formeramerwestpilots.html

charged with....

http://www4.law.cornell.edu/uscode/18/342.html


interestingly....

http://www4.law.cornell.edu/uscode/18/343.html

and did they meet the .10 standard, outlined in federal code?

....I mean, they are being prosecuted under the above code, so they must fulfill the minimum threshold for whatever crime XXXX code defines, no?

If the state hunting law says I cant shoot more than 5 deer in one day, and I shoot 3, they cant prosecute me for "the 5 deer rule"

?!?!?!?!?

alleged BAC level

http://www.cnn.com/2003/LAW/08/05/pilots.hearing/


HMMMMMM

people, its not over till the fat lady sings

 

[CatYaaak]

Thats not a valid argument. A homocide has nothing to do with aviation and is against state law. Aviation is FEDERALLY regulated. End of story.

I agree they comitted a crime. But Florida has no right to prosecute. QUOTE]

I'm no legal expert, but it seems to me that just because an activity is federally regulated doesn't automatically follow that a state can't prosecute for what it deems to be a criminal acts when they're are commited outside what the Fed regs allow.

What you're suggesting is that we aquire some sort of State diplomatic immunity just because we're involved in aviation, or commit the act in question while sitting in/using an an airplane, to include threatening lives through willful acts. Ladder warning-labeling is also federally-regulated, but you're not immune from State prosecution if you try and bash someone's head in with an incorrectly-manufactured one.

If memory serves (someone correct me if I'm wrong), the FAR incident NWA pilots were prosecuted under Minnesota state law regarding being intoxicated while engaged in interstate commerce. I don't think it resulted in jail time, but I don't think there was a successful challenge to the State having the right to prosecute either...in other words, perhaps not convicted, but not immune.

 

[~~~^~~~]

What you're suggesting is that we aquire some sort of State diplomatic immunity just because we're involved in aviation, or commit the act in question while sitting in/using an an airplane, to include threatening lives through willful acts.

(someone correct me if I'm wrong)

Federal Law preempts State law. It makes no sense for the States to regulate aviation because airplanes operate across State lines. Would you like to have Florida, Georgia, Tennessee, Kentucky, Indiana, Illinois and Wisconsin Pilot's Certificates to go from Sun n Fun to Oshkosh? How about changing the definitions of airspace from State to State so you could learn the limitations of each territory for your Private license? ( Just wait until States figure out how to tax airplanes flying overhead )

A federal enactment may preempt state law either through (1) express statutory preemption; (2) implied preemption where the intent of the federal law is to occupy the field exclusively ("field preemption"); or (3) implied preemption where state and federal law actually conflict ("conflict preemption"). See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S. Ct. 2404, 2414 (2001); Crosby v. National Foreign Trade Council, 530 U.S. 363, 372-73 (2000); English v. General Elec. Co., 496 U.S. 72, 78-79 (1990). Conflict preemption may be found where the state law frustrates the purpose of the federal statutory scheme or where compliance with both the state and federal laws is physically impossible. See Crosby, 530 U.S. at 372-73; Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 873 (2000); English, 496 U.S. at 79.

Local governments without aviation expertise, or training, should not try to expand their power into aviation. As pilots we should flight against this encroachment that threatens to reduce our freedom to operate aircraft and which reduces the high standards of aviation safety we enjoy in the United States under the National Transportation Safety Board and Federal Aviation Administration.

 

[Dr. B]

Drunk Pilots

Isn't stripping them of their licenses enough? They can never fly a plane again. That, and a stiff fine should be enough. No property was damaged and nobody was even hurt.

 

[satpak77]

Federal Law preempts State law. It makes no sense for the States to regulate aviation because airplanes operate across State lines. Would you like to have Florida, Georgia, Tennessee, Kentucky, Indiana, Illinois and Wisconsin Pilot's Certificates to go from Sun n Fun to Oshkosh? How about changing the definitions of airspace from State to State so you could learn the limitations of each territory for your Private license? ( Just wait until States figure out how to tax airplanes flying overhead )

very nice post, good

now, could you provide your own opinion now that we have the 18 USC 342 presumptions defined, which as .10 BAC?

these two guys did not meet .10 BAC.


thats why I think it was important to get it out of state court (.08 BAC), now its in federal, (.10 BAC), where it SHOULD die

you can indict a ham sandwich

 

[~~~^~~~]

Satpak :

I'm not saying these two should be indicted at all. Pragmatically, they should have called in sick and taken the Company's sanction. But, they didn't. They also closed the cabin door, which was an important distinction in the case. They were performing as pilots, even though they never disconnected from the tug.

Lyle Prouse and his crew actually flew a leg. I guess they are fortunate their destination was not in Florida.

The State of Florida has been eager to prosecute pilots and other aviation professionals since before the Val U Jet crash. They have appealed the Fed. District Court ruling in this case and have stated an intention to follow it through to the US Sup. Ct. That is their right as long as the taxpayers will stand for it.

IMHO all pilots should discourage this sort of State grandstanding.

So now a State's attorney has compelled the Feds to take action. What a shame.

~~~^~~~

 

[CatYaaak]

Federal Law preempts State law. It makes no sense for the States to regulate aviation because airplanes operate across State lines. Would you like to have Florida, Georgia, Tennessee, Kentucky, Indiana, Illinois and Wisconsin Pilot's Certificates to go from Sun n Fun to Oshkosh? How about changing the definitions of airspace from State to State so you could learn the limitations of each territory for your Private license? ( Just wait until States figure out how to tax airplanes flying overhead )

A federal enactment may preempt state law either through (1) express statutory preemption; (2) implied preemption where the intent of the federal law is to occupy the field exclusively ("field preemption"); or (3) implied preemption where state and federal law actually conflict ("conflict preemption"). See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S. Ct. 2404, 2414 (2001); Crosby v. National Foreign Trade Council, 530 U.S. 363, 372-73 (2000); English v. General Elec. Co., 496 U.S. 72, 78-79 (1990). Conflict preemption may be found where the state law frustrates the purpose of the federal statutory scheme or where compliance with both the state and federal laws is physically impossible. See Crosby, 530 U.S. at 372-73; Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 873 (2000); English, 496 U.S. at 79.

Local governments without aviation expertise, or training, should not try to expand their power into aviation. As pilots we should flight against this encroachment that threatens to reduce our freedom to operate aircraft and which reduces the high standards of aviation safety we enjoy in the United States under the National Transportation Safety Board and Federal Aviation Administration.

Well, it seems you took my "correct me if I'm wrong" out of context...(you must have a law degree)...I was referring to the State of Minnesota's prosecution of the NWA pilots. Also, I understand why states can't issue seperate flying licenses, or why states can't regulate their own airspace due to the interstate commerce issues (in fact, even the FAA doesn't technically own the airspace it regulates...the military does. Essentially, it reverts to military control each, and each day they let the FAA "borrow" it for the next 24 hours). I admittedI wasn't a legal expert. I didn't say I was ignorant.

But it's nonsensical that you go on to surmise that a State prosecuting those engaged in an act (under the influence while operating an aircraft) which falls outside the legal boundaries of federally-regulated operation somehow constitutes an expansion of State power, or more laughably, that doing so would automatically LOWER the high standards of aviation safety just because two federal agencies exist to promote it. I don't think any State needs to have "trained experts in aviation" to recognize that drunk pilots (especially those engaged in common carriage) pose a threat. A State DOES have a right to protect it's citizenry/guests by defining and prosecuting what it considers a crime, even though the FBI (or FAA) exists to do the same at the national level. If it's a conflicting or arbitrary law, it can be challenged and deemed unconstitutional.

One act can be prosecuted on both levels. An armed robbery in any State carries a Federal gun law charge on top of the State-level charges for the robbery/assault itself. If the gun law carries a 5 year sentence, but the robbery a 15-year one...is prosecuting the assault considered an expansion of State's power? No.

And we're not talking about Florida coming into conflict/trying to preempt a larger scheme of Federal authority, like deciding whether Cubans are allowed to immigrate to Miami or pass a law allowing the State to deport them.

So back to the original question...was the State of Minnesota's case/prosecution of the NWA pilots found to be in conflict with the Federal Government's authority to regulate aviation? If you're talking State vs. Federal government, it would seem a precedent has already been set one way or another dealing with very issue. If you're dredging up case histories, surely you must be able to find that fairly-recent one.

 

[DirkkDiggler]

Without trying to get too technical here, don't the FAR's state that you may not operate and aircraft after consuming alcohol within 8 hours OR while having a BAC above .04%? So why is the paper claiming that federal law allows a BAC of up to .1%? And it's not because they were only taxiing. An aircraft moving on the ground with the intent to fly is considered flying, according to the FAA. At least for the purpose of reporting accidents or incidents, and I'm sure this situation falls under a similar guideline.

 

[FN FAL]

These guys screwed up, no doubt about it. But, the State of Florida is way out of line by trying to claim State drunk driving laws apply to the operation of an aircraft.

....why wouldn't state laws apply? Motor Vehicle is a Motor Vehicle. Three wheels, four wheels, six wheels, two wheels. You can get an Operating a Motorized Vehicle While Intoxicated ticket for driving a Sea-Doo, a motorcycle, a riding lawnmower, a semi-truck, moped, or a snowmobile, while intoxicated on public property. There's nothing majic about an airplane, it is a motorized vehicle.

And they ARE trying these guys under federal law. So I don't know why you guys are arguing about the state charges. They don't exist, so why argue about it.

But a grand jury in Miami indicted them on federal charges of operating an America West Airbus 319 while under the influence of alcohol, US Attorney Marcos Daniel Jimenez and Miami-Dade Police Director Robert Parker said.

Hughes and Cloyd were in the cockpit of the plane as it was being towed to the runway for takeoff from Miami International Airport on a flight to Phoenix, Arizona, when air traffic controllers ordered the plane back to the gate.

Police breath tests showed that Cloyd's blood alcohol level measured 0.09 and Hughes, the co-pilot, measured 0.08. Both had their pilot's licenses canceled by the Federal Aviation Administration.

The federal indictment charged them under a clause that makes it an offense to operate a public transport vehicle while under the influence of alcohol or drugs. They were not specifically charged under another section of the federal law that sets the legal blood alcohol limit at 0.10.

 

[satpak77]

because...

Aircraft not defined as "motor vehicle" under Florida law. If its not defined as such, cannot be prosecuted with it.

see

http://www.flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0860/SEC153.HTM&Title=->2003->Ch0860->Section%20153#0860.153


then study definition in 860.153 (3)

also

http://www.flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0316/SEC003.HTM&Title=->2003->Ch0316->Section%20003#0316.003

"vehicle" defined, 316.003 (75)

"driver" defined, under (10)

with the above in mind, here is the DUI code

316.193 Driving under the influence; penalties.--

(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired;

(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or (c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

so while our crew allegedly fulfilled (b), under the Florida definitions of "driver" , "motor vehicle", and "vehicle" they did not fulfill criteria in (1). If (1) is not fulfilled, case ends right then and there.

so under Florida law, I am of the opinion that it would be impossible to prosecute them (under the DUI charges/similar charges)

interestingly, according to press reports, neither men meet the minimum "prong" required by 18 USC 343, which requires .10 BAC. (They are charged with18 USC 342).

this is why I think any criminal prosecution will die in the court or never make it to court

my 2 cents

stranger things have happened of course, but that is my opinion

 

[FN FAL]

Well, I guess time will tell.

I thought they got some kind of conviction on the NWA guys. I'm not familiar with that one, so don't bash me on it...but I thought they got prison?

 

[satpak77]

NWA guys

I am not familiar with it, that was some time ago.

take care

** we all agree that flying under the influence of anything is wrong and unacceptable, but these two guys are innocent until proven guilty in a court of law. Thats what makes America what it is.

later

 

[satpak77]

here it is

according to the internet, Lyle Prouse served time in prison but was pardoned by President Clinton.

he supposedly blew a .13, which DOES meet the federal "prong" requirement discussed in my previous post.

http://walterolson.com/articles/washmdrink.html


and he was prosecuted under the same thing (18 USC 342) that the Cactus guys are charged with.

however for the life of me I just dont see a successful prosecution if they did not meet the .10 level (which according to news reports they did not)

I am really scratching my head with this one

oh well

later

 

[~~~^~~~]

Another Article on Lyle Prouse

http://www.avweb.com/news/profiles/182955-1.html

Friends of mine knew him during his service in the Marine Corps and speak highly of him.

 

[Resume Writer]

News Flash

Apparently a court overturned the ruling that denied the state of Florida from prosecuting the AWA pilots. I guess it is going to go forward now, unless there is an appeal (if they get another one) by the pilots.

Kathy

 

[satpak77]

[font=Arial, Helvetica]Appeals court: State can pursue charges against Am. West pilots [/font]


[font=Arial, Helvetica]Associated Press[/font]

[font=Arial, Helvetica]Last update: 22 July 2004 [/font]

[font=Arial, Helvetica]MIAMI -- State prosecutors can pursue charges against two fired America West pilots accused of being drunk in the cockpit, a federal appeals court ruled Wednesday.

A federal judge had previously ruled that the state did not have jurisdiction in the case, but a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta reversed that decision.

The appeals court said state prosecution should have been allowed to run its course before the federal courts got involved.

The pilots had backed their Airbus, carrying 124 passengers, from a gate at Miami International Airport for a flight to Phoenix in July 2002. Miami-Dade Police Officers, alerted by airport security guards that the pilots had smelled of alcohol when leaving the terminal to board their plane, raced to stop the jet and had it returned to the gate before takeoff.

Blood-alcohol results for pilot Thomas Cloyd and co-pilot Christopher Hughes were above the state drunkenness standard of 0.08 but below the federal criminal standard of 0.10.

The state later released video showing that the pilots had spent much of the previous night drinking at a popular bar in Miami's Coconut Grove neighborhood...

"We felt that the state courts was an appropriate venue when we first filed the case, and obviously we would be happy to pursue its prosecution in state courts," said Ed Griffith, spokesman for the state attorney's office.

Attorneys for the pilots didn't immediately return calls after hours Wednesday.

Reversed Wednesday was a decision by U.S. District Judge Patricia A. Seitz, who sided with the pilots in August 2003 by ruling that Congress carved out aviation safety as an area of federal jurisdiction and left no room for the state unless there is a loss of life, injury or damage.

Pilots' attorney Jeffrey Freeman had insisted that a strict reading of Federal Aviation Administration regulations prevents state prosecution. He argued the state lost its power to prosecute because there was no loss of life, injury or property damage.

The 11th disagreed. [/font]

​

--------------------------------------------------------------------------

Well, since in my opinion the federal case legally cannot be brought to federal courtroom, this is the only "option" by the legal community to prosecute them.

So now what happens? The rocket scientist AUSA that brought indictments, do those get tossed?

You think this is f**ed up now, just wait till you get the inside look at the police side of it, miranda warnings, lab/blood tests on pilots, evidence handling.

I would bet this case gets dismissed anyway, regardless of court. Give it a year for all the media attention to die down, and this thing will go away.