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Pilots Below .10 Can't Be Prosecuted

Fla. Can't Prosecute Intoxicated Airline Pilots

8/7/2003

A federal judge ruled that state law doesn't permit Florida to prosecute two former American West pilots who planned to operate a plane while intoxicated, CNN reported Aug. 6.

Federal Judge Patricia Seitz in Miami, Fla., said that federal law applies in the case of pilots Christopher Hughes and Thomas Cloyd. Both were set to fly an America West jetliner from Miami to Phoenix, Ariz., on July 1, 2002, with 124 passengers on board when the flight was recalled by Miami-Dade police, tipped off to drinking by the pilots.

Cloyd was found to have a blood-alcohol level of .091, while Hughes had a .084 level.

The DUI standard under federal law is .10 percent, while in Florida it's .08. Under the federal standard, the pilots would not be considered legally drunk and therefore, not face criminal prosecution.

The ruling by Seitz upholds a motion filed by the pilots to dismiss the state charges. In her ruling, Seitz said that federal law supersedes state law with respect to pilot qualifications where there is no loss of life, injury, or damage to property involved.

"The state lacks jurisdiction to prosecute them for matters that are solely within the jurisdiction of the federal government," said Seitz.

The Miami-Dade County state attorney's office said it would appeal the judge's ruling.

Tags: Pilots

Pilots Convicted of Flying Under the Influence

Jury Convicts Former Midland Pilot for Drunkeness in Plane

06/10/2005

Midland Reporter Telegram

Former Midland Pilot Convicted of 2002 Drunkenness in America West Airliner

By Ed Todd

MRT Correspondent

Thomas Cloyd Jr., a 47-year-old former Midlander who grew up in aviation and who, until July 2002, was a pilot for America West Airlines, and his co-pilot, Christopher Hughes, 44, were convicted this week by a Miami jury for being drunk in the cockpit of their airliner just prior to take-off on a Miami-to-Phoenix flight.

"He (Cloyd) just made a terrible, terrible mistake," said Tom Dollahite, a retired Midland corporate pilot who has known Cloyd since his growing-up years in Midland and was a dear friend to Cloyd's late father, Tom Cloyd Sr., a fellow corporate pilot who died at age 64 in the 1995 crash of a Commemorative Air Force B-26 Marauder bomber of World War II vintage. The senior Cloyd, who was not piloting the B-26 at time of the crash, was a seasoned CAF pilot who regularly flew the B-29 Superfortress and the B-24 Liberator.

The younger Cloyd is a 1976 graduate of Midland's Robert E. Lee High School. "He was kind of my surrogate son," Dollahite said. "He and my son, Tommy Jr., grew up together."

Dollahite's son, a retired United States Air Force pilot, currently is flying for Southwest Airlines.

Cloyd's mother, Margaret Cloyd, lives in Midland and is active in the CAF.

The Associated Press reported earlier this week that Cloyd and Hughes could be placed on probation or could be sentenced up to five years in prison at sentencing on July 20. Florida Circuit Court Judge David Young ordered both men to be jailed and held without bail, The AP reported.

"I sure hope they (the courts) are lenient on their sentence," Dollahite said, "but ... ."

The Federal Aviation Administration (FAA) "immediately" revoked Cloyd's and Hughes' commercial pilot's licenses after their Miami-to-Phoenix flight was canceled as their Airbus 319 was being removed from the gate by a tug in readying for flight on July 1, 2002.

Security screeners at Miami International Airport had detected the strong scent of alcohol on the pilots' breath, and Cloyd had gotten got into an argument because he wanted to bring a prohibited cup of coffee aboard the airliner, The AP reported. Airport police ordered the airliner to return to the terminal.

Aboard the flight were 124 passengers and three flight attendants, The AP reported.

"We have protected some lives today," Florida prosecutor Deisy Rodriguez said Wednesday following the two-week trial. She had characterized the pilot and co-pilot as "stumbling, fumbling" drunks who put the passengers' lives in grave danger, The AP reported.

Testimony indicated the pilots had drunk 14 beers between them late into the night prior to the scheduled morning departure of their flight.

Cloyd and Hughes "demonstrated careless and reckless behavior by getting into that cockpit under the influence of alcohol," Rodriguez said.

The AP also reported defense lawyers stated testimony indicated neither pilot was visibly intoxicated and the pilots were not in control of the aircraft when airport police ordered the airliner back to the terminal. The aircraft was being positioned by a tug for taxiing and then for takeoff.

"Flight doesn't occur until the plane begins to move under its own power," said Cloyd's defense attorney Daniel Foodman, The AP reported. "Nobody was in danger. Nobody testified Mr. Cloyd did anything wrong in that cockpit."

However, Florida prosecutor Armando Hernandez said, "Within the aviation community, it was clear they were operating this aircraft" before the engines were powered up and before takeoff, The AP reported.

Cloyd, who lives in Peoria, Ariz., and Hughes, who resides in Leander, did not testify in their own defense during the trial.

Court testimony revealed the pilots had consumed 14 beers and had a $122 tab at a Coconut Grove sports bar until 4:40 a.m. on morning of the scheduled departure of their flight at 10:30 a.m., The AP reported. Sobriety breath tests hours later showed the pilots' blood-alcohol level was above Florida's legal limit of 0.08 percent. Experts testified the blood-alcohol levels were probably much higher when the pilots boarded the airplane.

Hughes' defense attorney, James Rubin, said even if the pilots had been drinking the night before their flight, they exhibited no signs of drunkenness.

"There was no untoward sign of impairment," Rubin said in closing arguments, according to The AP. "They appeared to be acting in a normal fashion."

The AP reported that "central to the defense" was whether the two pilots legally were operating the airliner prior to takeoff. However, Rodriguez, the prosecutor, cited testimony that both pilots had performed flight checks for 30 minutes before the airliner was pushed away from the airport gate and the pilots, when questioned by police on the day of their arrest, said "yes" when asked if they had been operating an aircraft.

"They confessed, and they indicated that absolutely they were operating that aircraft," Rodriguez said in The AP report.

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Jury: Former pilots guilty of being drunk in cockpit

Fort Lauderdale, Fla. -- A Miami-Dade County jury on Wednesday found two former America West pilots guilty of operating an aircraft while drunk. The verdict came three years after the pilots had gone on an all-night drinking binge.

The six-man jury convicted pilot Thomas Cloyd of Peoria, Ariz., and co-pilot Christopher Hughes of Leander, Texas, after deliberating for about six hours. Both men wept as the verdicts were read.

Tags: Pilots

Pilots Need Tighter Alcohol Screening

FAA Tightens Policies for Drunk Pilots

Wednesday, June 18, 2003

With the number of commercial airline pilots testing positive for alcohol more than doubling in 2002, the Federal Aviation Administration (FAA) has established new procedures for dealing with intoxicated pilots, the Associated Press reported June 18.

WASHINGTON (AP) -- After a doubling of airline pilots failing Breathalyzer tests, the government has tightened procedures to keep those caught drunk out of the cockpit.

Last year, 22 commercial airline pilots tested positive for alcohol use, up from nine in 2001, and nine pilots have tested positive this year. That's only a fraction of the approximately 75,000 U.S. airline pilots but enough to cause the Federal Aviation Administration to establish new procedures for dealing with drunk pilots.

The jump in numbers, first reported by Newsday, led the FAA to change its policy in January so that pilots who fail sobriety tests immediately have both their medical and airman's certificates revoked. Both certificates are required for a pilot to fly.

Previously, only the medical certificate was revoked in cases of drug or alcohol use, said John Mazor, spokesman for the Air Line Pilots Association, the largest pilots' union.

Pilots can get caught in two ways: as part of the Transportation Department's random tests of 10,000 airline pilots every year, or if their behavior arouses suspicion among airline officials or law enforcement officers.

Pilots must wait a year and go through rehabilitation to get their medical certificates restored. To get their airman's certificate, they must also wait a year and then retake all the written and flight tests required to fly a plane.

An increasing number of pilots caught drunk while on duty doesn't necessarily mean more intoxicated pilots are trying to fly planes, experts say. It may mean more are getting caught.

"There is a higher level of public awareness," said Greg Overman, spokesman for the Allied Pilots Union, which represents pilots at American Airlines. "The number of false accusations has risen, and even when there's a false accusation by a passenger or a security screener, it tends to make headlines."

In February, a pilot removed from a Delta Air Lines flight at Norfolk International Airport was acquitted of operating a plane under the influence of alcohol.

Two America West pilots accused of trying to fly drunk on a Phoenix-bound flight from Miami last year are scheduled to be tried in Florida state court on July 7.

In all three cases, federal security screeners had smelled alcohol on the pilots.

Robert Johnson, spokesman for the Transportation Security Administration, said airline passengers as well as screeners are more likely to report something unusual at an airport since the September 11 terror attacks.

Screeners are not trained to look for impaired pilots, Johnson said. "Their job is to search for and keep prohibited items off the aircraft." If a screener observes drunken behavior, he or she is directed to report it to a supervisor, who has the authority to report it to law enforcement and local airline officials, he said.

Tags: Pilots

Drunk Driving Arrests on Federal Land Not Reported to State

BOSTON, June 2, 2006 -- Federal officials promised to quickly end a policy of not reporting drunk driving cases on U.S. government property to the state, which allows suspects to avoid any state penalties.

The cases are handled in a federal traffic court. For drivers who are convicted, nothing shows up on their state record, and they generally resolve their cases by paying a fine, The Boston Globe reported.

Even those who refuse to take breathalyzer tests on federal property avoid any state consequences. In a state court, refusal to take a breathalyzer test means a 180-day license suspension.

In the past year, 32 people have been charged with drunken driving on federal property in Massachusetts, with most arrests occurring at the Charlestown Navy Yard, the Cape Cod National Seashore and Hanscom Air Force Base, federal officials said.

The state Registry of Motor Vehicles was not notified of any of those cases, which means they were not listed on the drivers' records, according to federal authorities.

Robert Krekorian, chief of staff for U.S. Attorney Michael Sullivan, said Thursday that neither he nor Sullivan was aware of the drunk driving issue until the Globe brought it to their attention this week.

"It's totally unacceptable from our perspective, and immediately it's going to change," Krekorian said. "There's no reason why this critical information shouldn't have been given over to the Registry so they could take appropriate action."

Krekorian said federal authorities would immediately start notifying the Registry and provide reports about federal drunken driving cases in Massachusetts.

Anne Collins, the state's registrar of motor vehicles, said Massachusetts would suspend the licenses of drivers who refused a breathalyzer test after being stopped on federal property and would consider action against those convicted of drunken driving in federal court. All federal convictions will be noted on drivers' records, she said.

Drunken driving on federal property is considered a misdemeanor, and first-time offenders face a maximum of six months in prison and a $5,000 fine. Federal authorities said most do not receive any jail time or even probation.

The cases are heard by federal magistrate judges, who hold monthly traffic sessions at the state's federal courthouses and sometimes at the Cape Cod National Seashore. Fines are paid to the Central Violations Bureau, an arm of the federal court based in San Antonio. No records of the cases are kept at the courthouses.

Source: http://www.boston.com/

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A TANGLED WEB - DRUNK DRIVING ON FEDERAL PROPERTY IN MARYLAND
by Leonard R. Stamm

The State of Maryland is chock full of federal enclaves such as Fort Meade, the Baltimore-Washington Parkway, the Beltsville Agricultural Research Center, and Andrews Air Force Base, to name a few. Last October, United States Magistrate Paul Rosenberg published his opinion in United States v. Sauls, 981 F.Supp. 909 (D.Md. 1997), a case argued by MCDAA member Christine Saverda Nielsen, concerning a drunk driving prosecution at the Aberdeen Proving Grounds. Although the opinion was not a victory for Sauls,1 in the tradition of cases such as Casper v. State, 70 Md.App. 576, 521 A.2d 1281 (1987) State v. Werkheiser, 299 Md. 529, 474 A.2d 898(1984) it may turn out to be a case that is helpful to other defendants.

First we digress. Federal property is either subject to exclusive or concurrent federal criminal jurisdiction. Property acquired by the federal government between 1906 and 1940, such as the Beltsville Agricultural Research Center or Fort Meade is subject to exclusive federal jurisdiction. See Dreos v. United States, 156 F.Supp. 200, 205 n.3 (1957); 56 Op. Atty. Gen. 347 (1971). Other properties, such as the Baltimore-Washington Parkway, are under concurrent state and federal jurisdiction. Id.

18 U.S.C. § 13, the Assimilative Crimes Act, incorporates the substance and punishment, but not procedural aspects, of state law crimes on federal enclaves, and makes such crimes federal offenses, where the Congress or federal agencies have not legislated on the subject matter of the state law. The Assimilative Crimes Act transforms a violation of state law into an offense against the federal government. United States v. Press Publishing Co., 219 U.S. 1 (1911); United States v. Holley, 444 F.Supp. 1361, 1362 (D.Md. 1977). It is "a shorthand method of providing a set of criminal laws on federal reservations, by using local law to fill the gaps in federal criminal law." United States v. Prejean, 494 F.2d 495, 496 (5th Cir. 1974).

Since the offenses created by the Assimilative Crimes Act are federal crimes, it is for the federal courts to define the offenses, and state court opinions are merely persuasive authority which are not binding on the federal court. Federal cases have thus stated:

Title 18 § 13 was enacted to incorporate State criminal statutes into the Federal law. Interpretations of this Federal law is for the Federal Courts, and they are not bound by the constructions of the State Courts (Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814; and Kay v. United States, 4 Cir., 255 F.2d 476). Of course State decisions naturally have great potential persuasive power with this court, but this Court is not bound to follow such decisions if in its judgment they are wrong. United States v. Barnes, 195 F.Supp 103, 105 (N.D.Cal. 1961). Additionally, the Assimilative Crimes Act only incorporates the punishments contained in the state law, not civil or administrative sanctions which are not deemed to be punishment. United States v. Best, 573 F.2d 1095 (9th Cir. 1978) (license suspension which could have been ordered by California court under California law was not "punishment" and federal court could not order DMV to suspend driver's license); see, State v. Jones, 340 Md. 235, 666 A.2d 128 (1995), cert. den., ---U.S.---, 116 S.Ct. 1265, 134 L.Ed.2d 213 (1996)(Maryland administrative license suspension is not "punishment").

Federal properties that are under the jurisdiction of the National Park Service, such as Cabin John Parkway, the Suitland Parkway, and the Baltimore-Washington Parkway, are covered by federal traffic regulations contained in 36 Code of Federal Regulations (CFR). In those locations, since there are regulations on the subject matter of drunk driving, the Assimilative Crimes Act does not apply. Instead, driving under the influence of alcohol as well as refusal to take a test is prohibited by 36 CFR § 4.23.

By way of contrast, in those areas, such as Fort Meade or Andrews Air Force Base, where neither Congress, nor any of the federal agencies have made driving while intoxicated a criminal offense, the Assimilative Crimes Act applies and adopts as federal law, the terms and punishment provided by Transportation Article, § 21-902. See United States v. Walker, 552 F.2d 566, 568 (4th Cir. 1977); United States v. Channel, 423 F.Supp. 1017 (D.Md. 1976). The implied consent provisions of § 16-205.1 and procedural requirements of Cts. & Jud. Proc. Art., § 10-301-10-309 are inapplicable. Instead, the federal implied consent provision, 18 U.S.C. § 3118, which provides for suspension of driving privileges for one year on federal territories, and the Federal Rules of Evidence apply on these enclaves. Unlike Maryland, there is no right of refusal under federal law, the toxicologist need not approve equipment used in testing, and breath test technicians need not follow the Toxicologist's Regulations. Additionally, Transp. Art., § 16-402 et. seq., addressing the assessment of points, does not provide for assessment of points for federal drunk driving convictions.

Despite these differences, in practice, the Military Police at Andrews and Fort Meade, for example, use the Motor Vehicle Administration (MVA) Form DR-15 to advise arrestees of the state penalties that shall be imposed for failing or refusing the test. The MVA acts as if the failure or refusal is sanctionable, and the MVA assesses points for convictions under the Assimilative Crimes Act that carry the state description and imposes suspensions for convictions as if the conviction was for the state law violation.

It is the attack on these objectionable practices that will be aided by the Sauls opinion. Sauls was arrested at the Aberdeen Proving Grounds and was advised, pursuant to the DR-15 Form, that his license would be suspended as provided in Transp. Art., § 16-205.1 if he failed or refused the test. He took the test and failed it, and argued that it should be excluded as having been coerced by misleading advice since Maryland implied consent law does not apply on the federal reservation. The Court agreed that the Maryland implied consent law did not apply, but held that the giving of the advice was harmless because on federal property, unlike within Maryland, there is no right of refusal.

In a footnote, the Court stated:

[T]he Court is aware that the State routinely suspends an individual's license or privilege to drive under Trans. II, § 16-205.1 for events occurring at Aberdeen Proving Ground, Maryland. The Court is of the opinion that there is substantial merit to the defendant's argument that Maryland does not have the authority to apply its suspension procedures for events occurring on property in which jurisdiction is exclusively federal, at least without legislative authority. The Court assumes that the validity of the State's action is an issue that ultimately will be decided administratively by the Maryland Motor Vehicle Administration and/or by the Courts of the State of Maryland. The Court also notes that points are routinely assessed for traffic offenses occurring at Aberdeen Proving Ground, Maryland, charged under the Assimilative Crimes Act, by the Maryland Motor Vehicle Administration under Maryland's point assessment statute, Trans. II, § 16-402. The validity of this action may also be questionable. On the other hand, the state legislature has authorized the Motor Vehicle Administration for the State to suspend an individual's driving privilege for either failing to appear or failing to pay a fine in connection with a traffic offense which is the subject of a proceeding before the United States District Court for the District of Maryland. See, Trans. II, § 26-206 and § 27-103.

Sauls, 981 F.Supp. at 914, n.2. These comments by the Court should prove helpful in future federal prosecutions or MVA hearings concerning a refusal obtained after advice of Maryland penalties for refusal, or in MVA hearings resulting from a conviction under the Assimilative Crimes Act.

In its other holdings, the Sauls opinion rejected the defendant's argument that the military breath test technician was required to follow the Toxicologist's Regulations as a prerequisite to test admissibility and rejected the government's argument that the statutory inferences of Cts. & Jud. Proc., § 10-307 should apply to any test result. Instead, the Court crafted its own inferences, which, after a lengthy review of reported decisions and scientific authority, it indicated could be judicial noticed by the trial court.

1. .10 or more--from this level alone it may be inferred that the defendant was both intoxicated and under the influence of alcohol. . . .

2. .08 and above but less than .10--from this level alone it may be inferred that the defendant was under the influence of alcohol, and the beyond a reasonable doubt standard is satisfied. . . .

3. .05 and above but less than .08--from this level alone it may not be inferred that the defendant was either intoxicated or under the influence of alcohol. . . .

4. More than .02 and above but less than .05--at this level it may be inferred that the defendant was unlikely intoxicated or under the influence of alcohol . . . .

5. Any measurable amount of alcohol concentration .02 or below--at this level it may be inferred that the defendant was not intoxicated or under the influence of alcohol . . . ordinarily, it would be appropriate to grant a judgment of acquittal on the intoxication charge at this level.

Sauls, 981 F.Supp. at 925.

In its final holding, the Court held that a test administered within three hours of apprehension should be admissible. Maryland's statutory limit of two hours, contained in Cts. & Jud. Proc. Art., § 10-303, being procedural, is not assimilated by 18 U.S.C. § 13.

Sauls' five holdings are by no means the last word on these issues: (1) that Maryland implied consent provisions are not assimilated under the Assimilative Crimes Act; (2) that the Maryland Post Mortem Examiner's Toxicologist's Regulations need not be followed by federal authorities; (3) that Maryland's statutory inferences are not assimilated under the Assimilative Crimes Act; (4) that federal courts can judicially create and notice their own inferences resulting from breath alcohol tests; and (5) that test results obtained within three hours of apprehension are admissible. However, Sauls fills some hitherto rather large gaps in federal drunk driving case law. Familiarity with Sauls is critical to representation of defendants charged with driving while intoxicated or under the influence of alcohol in federal court.

Notes

1. Ultimately, Sauls did receive a dismissal for unrelated reasons.

Copyright © 1999 - Leonard R. Stamm

Source: http://www.boston.com/

Tags: Pilots

Drunk Pilots

Drunken Pilots Lose Appeals Court Case

MIAMI Two pilots who were drunk in the cockpit have lost an appeals court bid to overturn their convictions and prison sentences.

The pair were about to fly an American West plane from Miami to Phoenix back in 2002. But an airport screener smelled alcohol on their breath, and as the jet was being towed from the gate, police came out and ordered it brought back.

Testimony at their trial showed the pair spent six hours at a sports bar, consuming 14 glasses of beer before leaving less than six hours before takeoff. Tests later showed them still above Florida's legal limit for drunken driving.

One of the pilots had been on probation for a highway D-U-I just months before. He got five years behind bars for operating a jetliner when drunk. His partner was sentenced to two and a-half years.

Both have been fired by America West.

Source: http://kvoa.com/

Tags: Pilots