Update on SWA f/o arrested for intoxication.

[sqwkvfr]

Some interesting items from another website.

The human body can produce a blood alcohol content of .015 through it's normal metabolic process without having ever ingested a drop of alcohol.

A glass of "fresh squeezed" orange juice can have as much natural alcohol as an O'douls non-alcohol beer. Up to 1/2 of 1 percent alcohol by volume.

The breathalizers approved by the FAA for testing pilots have an accuracy range of .015%

When X airline approved certain breathalizers; the manufacutor demonstrated it's capability on a test sample of air containing .0% alcohol. The machine tested the sample and produced a result of .015% alcohol! I was in the room along with other ALPA officials and several Vice-Presidents. The machine met standards and was approved!!

I've never heard of an intoxilyzer being that far off and within tolerances.

Are you certain that you didn't witness a test of a PBT? 99% of average folks don't know the difference.

An intoxilyzer is NOT a portable machine. They're tested often to be within standards (and .015 is NOT an acceptable standard) and are located within police stations, jails, or B.A.T.mobiles. PBT (portable breath testers) are the small little hand-held units that most people mistakenly believe to be an intoxilyzer.

Intoxilyzers results are allowed as evidence. Most PBTs and breathalyzers are not. I'm willing to bet that the result made public was almost certainly from an intoxilyzer.

Now some of you can understand why it took an hour for an intoxilyzer result. The pilot had to be taken to an intoxilyzer...since they're not mobile (with the exception of the BATmobile.)

Now, .10 or .08 BAC is gonna be tough to prove.....but FARs do not allow operation above .04%

...and that's gonna be a cinch to prove.

Expert testimony will (not maybe will, WILL) establish that the human body generally metabolizes alcohol at a rate of .015% per hour. Eating food doesn't matter, drinking coffee doesn't matter and taking cold showers doesn't matter. The only way to rid your system of alcohol is to metabolize it...and that happens at a rate of @.015% BAC/hour. The second BAC result demonstrated the the BAC was actually on it's way down (as opposed to rising from a person absorbing more alcohol into his/her blood from a stomach full of beer.)

Let's do the math here: .039 + .015 (for the hour that it took to get this person into a room containing an intoxilyzer) = .054%

If the flight was supposed to start an hour before the time the the test was performed, his BAC would have been .054% at that time...and that's a violation.

FN FAL: You know I love you to death, man, but you know as well as I do that that judge's opinion from the case you cited is the extreme minority opinion in the legal and justice communities. That man's opinion and a $1 will get you a soda out of the vending machine at the executive terminal in Tucson.

Why do you think the state's appealing his ruling??

 

[radarlove]

Pretty good post, but you're wrong on a couple of items. Portable breathalyzers (yes, I know it's a trade name) are completely admissable as DOT testing evidence. They have to be calibrated with the alcohol charge (it comes in a green tank) and it has to be re-built every two years or so, but blow into it, out comes a strip of paper and there's your hanging evidence.

I agree with you that .015 error is simply unheard of. While I wasn't in the room this guy describes when that happened, prior to every set of tests I drew an "air blank" and in the couple of dozen times, it never read anything other than .000

I also don't believe that the government can "back up" and say, "this is what your alcohol level WAS", I think they're stuck with the actual read out. It's their problem they didn't get around to actually measuring it in a reasonable amount of time.

So let's do the algebra. He ended after eight hours with a .039 and we metabolize at .015 per hour. What was his BAC when he stopped drinking?

 

[satpak77]

An intoxilyzer is NOT a portable machine.

"Intoxilyzer" is a brand name, and yes, some are portable. See below

http://www.alcoholtest.com/intoxsd2.htm

http://www.alcoholtest.com/intox300.htm

 

[satpak77]

getting off track...

I see alot of "what was his BAC at show-time" type of stuff on this thread. Who knows. I don't, nor does anyone else. It has been pointed out by a few people that this depends on body metabolism, etc etc.

Back on course, lets return to the law, and what IT says.

He is charged with 18 USC 342.

http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000342----000-.html

Whoever operates or directs the operation of a common carrier while under the influence of alcohol or any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), shall be imprisoned not more than fifteen years or fined under this title, or both.

The presumptions of the above charge are here

http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000343----000-.html

For purposes of this chapter—
(1) an individual with a blood alcohol content of .10 percent or more shall be presumed to be under the influence of alcohol; and
(2) an individual shall be presumed to be under the influence of drugs if the quantity of the drug in the system of the individual would be sufficient to impair the perception, mental processes, or motor functions of the average individual.

The SWA guy blew a .039, which is below the .10 standard above. With a "presumption", the law is basically saying that "if someone blows .10%, we consider him under the influence, unless factually proven otherwise"

http://dictionary.law.com/definition2.asp?selected=1592&bold=||||

It is my opinion that the criminal case on this guy is weak, one of which is the fact that the burden is on the government to prove to a jury (in light of the presumption above) that blowing .039 is "under the influence."

The FAA/Company side of things is a whole different story. Who knows what will happen...

Cross-examination will be given to the police officers involved, as to any slurred speech, inability to walk, etc (none so far...). In addition, the Captain will be asked on the stand (he is a witness to this whole deal) if he observed anything odd or unusual with the F.O.

We still don't know if the BAC testing device is up-to-speed, or if the officer conducting the tests is properly trained. Etc etc

later

 

[frog_flyer]

sqkvfr... the key word to your argument is "generally" ....

maybe his liver is shot to ******************** after all his years in the air force and cant break down the alcohol like it used to


who knows

 

[satpak77]

also note the America West case was originally charged by the Feds, then dropped, for state prosecution. Accoding to news reports, those pilots did not meet the .10 BAC.

http://news.airwise.com/story/view/1116889919.html

 

[sqwkvfr]

Pretty good post, but you're wrong on a couple of items. Portable breathalyzers (yes, I know it's a trade name) are completely admissable as DOT testing evidence. They have to be calibrated with the alcohol charge (it comes in a green tank) and it has to be re-built every two years or so, but blow into it, out comes a strip of paper and there's your hanging evidence.

I'm certainly not wrong on this point. Now I'll admit that I'm not up to speed on federal rules regarding evidentiary PBTs, but I can tell you that most states do not allow them as evidence because of their unreliability or the fact that no prosecutor has taken the time to convince a court to take "judicial notice" of the admissibility of a PBT OR that a lot of departments don't go to the expense of rebuilding their PBTs every two years.

Also, I never used a PBT that printed anything....probably for same reason. Our state took 'em right to the hospital for a withdrawl and chemical analysis.

...a little sidebar here...my PBT almost always read .015% below what the BAC turned out to be. I'm pretty certain the the department for which I worked purposefully set the reading low to prevent the embarrassing BTR below .10%, and most of my arrests were as the BAC was still rising (read: driving home from the bar with a stomach full of beer.)

I can tell you, however, that we were NEVER allowed to speak the PBT's results in the jury's presence...it would easily be cause for a mistrial.

I also don't believe that the government can "back up" and say, "this is what your alcohol level WAS", I think they're stuck with the actual read out. It's their problem they didn't get around to actually measuring it in a reasonable amount of time.

I'm willing to bet that the Utah US Attorney's Office is about to prove you wrong....it's actually a common tactic for prosecuting DUI for unreported crashes or whatever else happens to fit the situation....and I speak from experience (250 DUI arrests) in this matter.

Also, regarding a reasonable amount of time for a BAC test....one hour, in reality, isn't bad. I've had several that went that long or even longer...from the stop time to the blood draw at the hospital was usually 45 minutes on a good night. An hour really isn't bad.

 

[radarlove]

We're talking from two different angles. It sounds like you were/are a cop and I'm talking pure DOT Part 121 alcohol testing, which are two seperate animals. The DOT stuff is used to take away your medical, the cop stuff is used criminally.

Blood tests are not even allowed under the DOT.

It sounds like local law enforcement or feds are the ones that administered it, so we're into a new grey area, although I doubt the DOT cares about the breath test if there is an actual conviction to used to take away the medical.

 

[sqwkvfr]

So let's do the algebra. He ended after eight hours with a .039 and we metabolize at .015 per hour. What was his BAC when he stopped drinking?

I got .159...which doesn't sound at all like an unreasonable number....and isn't really that drunk.

Unless a violator was involved in a crash or some other sort of incident, I didn't hook 'em unless I thought that they were a .130 or better.

 

[sqwkvfr]

We're talking from two different angles. It sounds like you were/are a cop and I'm talking pure DOT Part 121 alcohol testing, which are two seperate animals. The DOT stuff is used to take away your medical, the cop stuff is used criminally.

Blood tests are not even allowed under the DOT.

It sounds like local law enforcement or feds are the ones that administered it, so we're into a new grey area, although I doubt the DOT cares about the breath test if there is an actual conviction to used to take away the medical.

Ahhh, administrative versus criminal.

Yeah, I get it.

Well played, sir.