Alcohol Prohibitions for Pilots and Flight Instructors

By Suzanne Kalfus, Senior Attorney, ALPA Legal Department
Air Line Pilot, April 2003, p. 26

Airline pilots must know and abide by the current regulations governing alcohol use. As a result of certain high-profile cases, the FAA is now taking emergency revocation action against pilots’ airman certificates when alcohol test results are reported above the legal limits or when pilots are believed to have violated other alcohol prohibitions. Clearly, this is the most serious penalty the FAA can impose and one with grave ramifications for the affected pilot. Revocation of an airman certificate remains a permanent part of the pilot’s FAA file.

A pilot whose airman certificate has been revoked may not reapply for one for a full year. The FAA requires the pilot to re-take and pass all of the tests required for each certificate and rating.

Given the gravity of the sanction a pilot may face if the FAA finds an alcohol (or drug-related) violation, understanding and complying with the applicable regulations is vital.

This is a time when airline pilots, other airline employees, and passengers are under tremendous stress. Try to avoid using alcohol in response to the surrounding anxieties and pressures. Look out for your fellow pilots (especially flightcrew members) and be aware if any of your peers appear to be abusing alcohol. Alcohol problems in airline pilots first appear outside the work place. Remember, you might save someone’s career by getting help for him or her sooner rather than later.

If you see a peer drinking to excess on a layover or elsewhere, consider whether that person might need help. ALPA was one of the founders of the highly successful pilot peer intervention and treatment program—known as HIMS—through which airline pilot volunteers help other pilots get assistance with alcoholism and other forms of substance abuse. Do not hesitate to contact a member of your MEC or LEC HIMS or Aeromedical Committees, either to get more information or to report concerns about a fellow pilot. The Committees’ goal is to help peers get help when needed and preserve the pilots’ careers. And of course, you can always contact the ALPA Aeromedical Office for advice or help (see "A Primer on Blood Alcohol Content," page 28).

In this highly stressful environment in which airline pilots are working, they are subject to greater scrutiny than ever before. Security screeners, passengers, air marshals, and even air traffic controllers have reported allegations of pilot alcohol use to company officials or law enforcement officers. (See "What to Do If Someone Alleges that You Smell of Alcohol or Have Been Drinking," opposite.) While many of these charges have been unfounded and the pilots exonerated, some have not been.

Do not report for duty in violation of the regulations or your company’s policy, and do not allow your peers to do so either.

What follows is a summary of the main regulatory, alcohol misuse provisions. We urge you to review them, understand them, and comply with them. Do not risk your career and livelihood by misunderstanding the regulations or by making an error in judgment in following them. Please spread the word to ensure that your fellow pilots are also aware of these obligations.

Airline pilots are generally well aware that they are subject to the FAA’s longstanding 8-hour prohibition against pre-duty alcohol consumption. Of course, airline pilots must comply with their employer’s policies, which may impose longer prohibitions against pre-duty alcohol use. However, ceasing alcohol consumption in accordance with the pre-duty use prohibitions can be insufficient to comply with other regulations.

A pilot may stop drinking 8 hours before report time and still not be legal to fly 8 hours later. This is because the acceptable alcohol concentration threshold for pilots is extremely low. Do not forget that the rules prohibit pilots from performing safety-sensitive duties with a breath alcohol concentration as low as .02. This is the lowest breath alcohol concentration reading considered to be an accurate indication of the consumption of alcohol. A reported alcohol concentration between .02 and .039, while not a rule violation in and of itself, does preclude the pilot from flying until either 8 hours have passed, or the pilot is retested and reports a reading below .02.

Reporting for duty or remaining on duty while having a blood alcohol concentration of .04 is a violation of the rules and, if shown, will likely lead to emergency revocation of one’s airman, medical, and any other FAA-issued certificates (such as a mechanic certificate). Under the FAA regulations, airline pilots are subject to random, reasonable-suspicion, post-accident, return-to-duty, and follow-up alcohol testing. Testing above .04 on a random, reasonable-suspicion, post-accident, or follow-up test is a rule violation subject to FAA sanction.

Be aware that a violation of the .04 blood alcohol concentration prohibition can be shown by means other than a Department of Transportation test. For example, if a pilot reports for duty and is subsequently tested for alcohol at the direction of a law enforcement officer and the results exceed a blood alcohol concentration of .04, that result can demonstrate a rule violation and be the basis of FAA enforcement action.

A pilot who reports for flightcrew member duties is absolutely prohibited from consuming alcohol from any source (including food and medicines) after reporting. Uncertainties in this area have occurred when a pilot is in an "on call for flight duty" status and not aware of it. If you consumed alcohol while believing you were off the schedule, and are then contacted to report as a reserve pilot, do not report for duty under any circumstances if you are not medically fit—including not being free of alcohol within the meaning of the rules.

You must also be clear about whether your airline policy considers you to be "on call" in any other situations. At some airlines, under certain circumstances, deadheading pilots are considered to be on call for flight duty. Clarity about your obligations, including when you are subject to alcohol prohibitions and when you may be subject to testing, is essential.

The FAA recently uncovered a little-known and little-disseminated policy "clarification" stating that simulator instructors are considered to be performing "flight instruction" duties for purposes of the alcohol testing regulations. This means that instructors whose duties may involve only training and checking in a simulator and in a classroom are, nonetheless, subject to the alcohol rules, including the testing provisions. This interpretation is not contained in the regulations, was not published in the federal register, is not accessible on the FAA website, was not distributed to certificated airmen, and is absent from many airlines’ alcohol policies.

Nevertheless, the FAA relied upon it in a recent case, revoking a simulator instructor’s certificates, an action that has been upheld by an Administrative Law Judge and the NTSB.

Accordingly, getting the word out about this FAA interpretation of its regulations is very important. Be sure that the pilots you know who perform simulator instruction functions are aware that they are subject to alcohol testing even when on full-time assignment at a training facility.

The prohibition against acting—or attempting to act—as a crew member while under the influence of alcohol has been in effect for many years. This obligation predates the FAA’s mandatory alcohol testing scheme. The ban is contained in Federal Aviation Regulations Part 91.17, while the alcohol testing provisions are in Appendix J to Part 121. The requirement to not act (or attempt to act) as a crew member under the influence of alcohol is independent of the prohibition against having a blood alcohol concentration of .04.

Thus, while an alcohol test can demonstrate that one is under the influence, it is not the only means to do so. Do not assume that, because you have not been tested, you could not be charged with being under the influence of alcohol. Evidence of prior alcohol consumption, or other evidence of impairment, can be used.

The DOT/FAA-mandated testing program obligates each air carrier to subject its flightcrew members and flight instructors to various types of alcohol testing. Categories of tests include random, post-accident, reasonable-suspicion, return-to-duty, and follow-up testing. Refusal to submit to a required random, post-accident, reasonable-suspicion, or follow-up alcohol test is grounds for FAA certificate action and may well lead to certificate revocation.

If asked to submit to an alcohol test by a law enforcement officer, your obligations are as follows:

• First, if the officer is acting under local, state, or federal authority, refusing to submit to a lawful request may have consequences under the applicable criminal law.

• Second, if the officer is seeking to enforce a law prohibiting flying while under the influence of alcohol, refusing to submit can also be a violation of the FARs. Part 91.17(c) specifically requires a crew member to submit to such a request. FAR Part 61.16 states that a refusal to do so is grounds for certificate action. In today’s climate, such a refusal may well lead to an FAA revocation action.

The standards and procedures for such testing depend upon the law of the state under which the testing is being directed. The procedures, methodology, and equipment used can vary from state to state, depending upon the standards and requirements of the particular law under which the individual is prosecuted.

While such a test may provide the basis for FAA (and company) action, it can also result in criminal charges and prosecution. Conviction under a state or federal flying-while-impaired law can result in jail time and substantial monetary fines.

A pilot on duty who fears his or her alcohol concentration may exceed the legal limits has no good alternatives if faced with a directive to submit to testing by a law enforcement officer. Do not put yourself in that spot, and do what you can to prevent your crew members from being in that position.

Note that FAR Section 91.17(c) addresses officers enforcing flying-while-impaired laws. That is a different provision than the FAR addressing driving a motor vehicle while impaired. Section 61.15 requires pilots who have a "motor vehicle action" to report it to the FAA’s Security Division within 60 days of the date of the action.

A "motor vehicle action" includes a conviction for operating a motor vehicle while intoxicated, impaired, or under the influence of either alcohol or a drug. A "motor vehicle action" also includes an action in which a pilot’s license to operate a motor vehicle is cancelled, suspended, or revoked (or his or her application for such a license is denied) for a cause related to operating the motor vehicle while intoxicated, impaired, or under the influence.

This means that a pilot may have a reportable incident even if never charged or convicted if his or her driver’s license or driving privileges have been adversely affected. In some states, an individual who is asked to submit to alcohol testing but refuses is subject to automatic suspension of driving privileges. The suspension may be contained in the paperwork the person is given. At times, an individual who is stopped in a state other than the one in which his or her driver’s license is issued may not even be aware that the state in which he or she was stopped suspended driving privileges and reported that suspension to the National Drivers’ Registry (NDR).

The FAA monitors pilots’ compliance with their reporting obligations by searching the NDR.

Motor vehicle actions, also, are more broadly defined for purposes of answering the questions on the medical application (Form 8500) and include actions that resulted in a course of counseling or educational program even if no conviction occurred.

The failure to properly report a motor vehicle action, either by not writing to the FAA’s Security Branch or by not answering the applicable question correctly on the medical application, can result in FAA investigation and certificate action. A single motor vehicle action (i.e., a DUI) that is properly reported—without more—is not the basis for certificate action by the FAA. However, two such actions within a 3-year period can result in certificate action.

You should also be aware that a pilot who has a second instance of using alcohol (or any other substance) in a situation in which that use was physically hazardous, such as in connection with a potentially dangerous instrument like a car—no matter how far apart the two incidents were—may no longer be authorized to exercise the privileges of his medical certificate. The FAA has considered DUIs and DWIs to evidence alcohol use in a physically hazardous situation for purposes of the medical standards.

Accordingly, if you get a single DUI or DWI, consider it a warning, and reexamine your drinking habits. Your HIMS and Aeromedical Committee representatives and the ALPA Aeromedical Office doctors are available to help you.

What to Do if Someone Alleges that You Smell Of Alcohol or Have Been Drinking

Airline passengers today are jittery, and security personnel are concerned. In several instances, innocent flightcrew members have heard allegations or off-hand remarks about the "pilots’ drinking." What should you do when you are free of alcohol but confronted with such allegations while on duty? If the assertion is serious (nonjoking), you should report it to your company and let a company official confirm your fitness for duty before performing any further flying.

In some instances, a company official may make that determination based on a telephone conversation with you and your other crew members. In other cases, a trained company official will want to directly observe you to confirm the absence of any reasonable suspicion of alcohol use.

If your collective bargaining agreement or company policy limits alcohol testing to that required by the FAA testing regulations and states that all such testing shall be in accordance with those procedures, then testing based on "reasonable suspicion" must be based on the direct observation of a trained supervisor—it is not permitted to be based on a third-party report. A finding of reasonable suspicion under the regulations must be "based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, or body odors of the employee." FAR Part 121, Appendix J, Section III.D.1.

In many instances, an airline official will be satisfied that the pilot is not under the influence without the need for any alcohol testing. Many pilots are eager to proceed as quickly as possible. However, some pilots are concerned that with such an allegation having been made, a contemporaneous alcohol test is the only way to fully exonerate themselves and provide a record of rule-compliant behavior. The fear is that, if an irregularity or other problem occurs later in the flight sequence, a question about the pilot’s fitness may resurface. Faced with such allegations, even with company clearance to fly, some pilots insist on being tested for alcohol to provide a record of being "clean." The request for a test in such circumstances is reasonable and can later serve to protect both the pilot and the airline. In our recent experience, in those situations airlines have been fully responsive to pilots who request alcohol testing in accordance with the FAA testing standards. Absent a directive to submit to such testing by airline management, the pilot should be the one to decide whether to ask for such testing.—SK

A Primer on Blood Alcohol Content

By Donald Hudson, M.D., M.P.H., ALPA Aeromedical Advisor

In 2002, several high-profile incidents involved pilots and alcohol use. In the aftermath of the intense negative publicity and subsequent public outcry, the FAA has tightened its enforcement penalties for pilots who test above the violation level of .04 blood alcohol content. In almost every case, the pilots involved seriously underestimated the time required to metabolize alcohol consumed before flight duty.

Surprisingly, many professional pilots seem not to be aware of the .04 percent testing limit. However, even though this is the threshold for FAA violation action, understanding that responsible professional pilots should have no detectable alcohol in their bodies before starting flight duties is very important. For the average pilot coming on duty from home or a layover situation, this means, first of all, that one must strictly observe both company policies and FAA regulations with regard to time of alcohol consumption and starting flight duties.

Also, while you may have heard the phrase "alcohol is alcohol," you should keep in mind some general parameters. A "standard drink" is defined as 1.5 ounces of distilled liquor (80 proof, or 40 percent alcohol by volume), 5 ounces of wine (generally 12–15 percent alcohol), or 12 ounces of beer (6 percent alcohol for most domestic brands). Consequently, each "standard drink" contains approximately 0.6 fluid ounces of pure alcohol. Alcohol is metabolized and eliminated at an average rate of about 0.3 fluid ounces per hour, so about 2 hours is needed to metabolize one "standard drink" and get blood alcohol levels down to zero.

For the "average" 160-pound person, consuming the "standard drink" will result in a peak blood alcohol concentration in the .03–.04 range in approximately 1 hour.

Obviously variables, such as rate of ingestion, body weight, presence of food in the stomach—even gender (on average, women metabolize alcohol a bit slower than men)—can affect this calculation but clearly caution is warranted in this area.

Knowing the regulations and the basic physiology is important for every pilot (and also a good thing to keep in mind regarding driving as well).

If you have any doubt concerning your fitness to fly after consuming alcohol, do not report for duty.

In most of the incidents in 2002, persons who weren’t crew members alerted authorities to a potentially unsafe operation. If you suspect a fellow crew member who has shown up for duty might be impaired, do not jeopardize the safety of flight by trying to proceed with the flight and "cover" for him or her. Take the person aside and try to convince him or her to withdraw from duty, to call in sick if necessary. Under no circumstance try to operate the flight with a crew member you believe to be impaired or under the influence of alcohol or an illegal substance. Your airman certificate is also at risk if it can be demonstrated that you knowingly allowed a person under the influence of alcohol or drugs to act as—or attempt to act as—a crew member.

This is an issue on which it is essential for pilots to look out for each other—ALPA has a well-developed peer intervention and treatment program (known as HIMS) for helping individuals who might have the disease we know as alcohol dependence. Under the HIMS program, pilots with this condition can be successfully treated and returned to the cockpit. If you suspect this might be the case with yourself or a fellow pilot, please contact your MEC HIMS representative or the ALPA Aeromedical Office in Denver for guidance.