Rip-Roaring Drunk Pilot Says He Never Operated Plane with .34 BAC

Pilots like bus drivers, ship captains, and train operators are professional operators with a lower BAC of .04 for DWI. 
This pilot had a .34 at 7am! He argued he never operated the plane and didn't even start the engines.

Pilot Charged Under 18 USC section 342 (federal DWI) He Says He Never Operated the Plane?

The case is No. 17-2285 United States v. Fitzgerald. He was charged under 18 U.S.C. § 342, which makes it a crime to operate a common carrier while intoxicated. The jury convicted Fitzgerald, and the district court sentenced him to one year and one day in prison and to three years of supervised release. On appeal, Fitzgerald contends that the actions he performed were not enough to operate the aircraft within the meaning of § 342

Common Carrier Standard for DWI is Lower at .04 BAC

Regulations, meanwhile, prohibit acting or attempting to act as a crewmember of a civil aircraft with a BAC of 0.04% or higher—meaning that Fitzgerald’s BAC of .34 was about eight times over that limit. 14 C.F.R. § 91.17(a)(4).

Because § 342 is devoted to common carriers—planes, trains, buses, and ships—Fitzgerald argues “operates” must “be viewed as control relative to movement.” Since Fitzgerald  didn't move the plane or turn on the engines he argues NO operation so NO DWI.

Jury Instructions on OPERATION are wide for DWI whether in a Car or on a Plane

The district court instructed the jury as follows on the meaning of operate:

The term “operate” generally means to run or control the functioning of something. For a commercial pilot this term includes anything the pilot does or directs in his capacity as a pilot before, during, or after flight, but only if the evidence convinces you beyond a reasonable doubt that the activity or direction was directly and proximately linked to actual operational or functional requirements for the flight and not simply some administrative or clerical task.

Context Always Guides Us to Determine Meaning: Why Planes are NOT Cars

Under each of the above definitions, Fitzgerald could be deemed to have “operated” the aircraft when he took certain preflight steps. Recall what Fitzgerald did: 

1. He calibrated the altimeter (which calculates altitude)

2. He programmed the flight-management system (which controls navigation)

3. He turned on the auxiliary power unit (which provides energy for functions other than propulsion)

4. He requested flight clearance from air-traffic control. 

Fitzgerald’s actions by themselves were not sufficient to “cause” the airplane to take flight (as the Oxford and Webster’s Dictionaries would say), but they were necessary steps along the way.

Interestingly, neither “movement” nor “preparation”—words stressed by the parties—appears in the statute.

Fitzgerald's guilt and sentence was affirmed by the upper court. Maybe the battle should have been in contesting the BAC of .34 since he was so functional. Normally at a BAC over .30 someone is comatose or passed out. 

Newman and Cyr is a boutique DWI defense firm who covers the Finger Lakes area of upstate New York. We know the law and the science behind successful DWI and DWAI defense.