Discolsing DUI Arrest on Medical

U

Unregistered

Guest
I was recently arrested for a DUI. At the station I blew an .089. My lawyer was able to prove that their machines were off by .05 which meant I really blew a .084. I also hired a toxicologist who proved that at the time of the stop my blood alcohol content was below the legal limit.(.068) No conviction or administrative action was taken on my license. I contacted the NDR and my record is clean. My question is: On the medical, do I need to mark yes?
Since the arrest was resinded I am unsure how to proceeded and don't want to dance with the FAA over something like this. It seems to be a gray area. Any help would be appreciated.
 
Woo Hoo, here we go again.... BTW, did you mean to write the machine was off by .005? Because otherwise the math above doesn't work. If the arrest was rescinded, I'd say no, but I'm no expert on the way they wrote the new rules and don't drink much so I haven't care to study it.
 
I can see both sides of this as you were arrested but you were not arrested "Officially".

It sounds somewhat like a "case dismissed" which I think means it never legally happened.

I am not a lawyer but I do watch a lot of Law and Order and even better Perry Mason reruns on Cable where the prosecution never wins.

Cheers
 
My grammars may be showing here, but I have to ask.

The Class III form asks if you have ever been "arrested and/or convicted". It seems like if you have to disclose arrests that did not lead to convictions, they would have said "arrested or convicted". Am I reading this wrong?
 
Rigged4Flight said:
My grammars may be showing here, but I have to ask.

The Class III form asks if you have ever been "arrested and/or convicted". It seems like if you have to disclose arrests that did not lead to convictions, they would have said "arrested or convicted". Am I reading this wrong?
Click to expand...

He said the arrest was rescinded. The question is whether a rescinded arrest happened, or not.
 
Are you an AOPA member? If so, contact the legal dept with them. Otherwise, find an aviation lawyer. Perhaps an AME may know?
 
Rigged4Flight said:
My grammars may be showing here, but I have to ask.

The Class III form asks if you have ever been "arrested and/or convicted". It seems like if you have to disclose arrests that did not lead to convictions, they would have said "arrested or convicted". Am I reading this wrong?
Click to expand...
The way to read "and/or" is:
Have ever been "arrested and convicted or arrested or convicted?
 
Rigged4Flight said:
My grammars may be showing here, but I have to ask.

The Class III form asks if you have ever been "arrested and/or convicted". It seems like if you have to disclose arrests that did not lead to convictions, they would have said "arrested or convicted". Am I reading this wrong?
Click to expand...
I would say so since and/or means to me either one or both.
But the question is was he ever actually "arrested" since the arrest legally never happened.

I vote to report it since a one time DUI arrest is a problem but not one that usually results in a permanent revoking of your certificate by what I have read on this forum and others. OTOH, the down side is the FAA probably doesn't care if it is "Legally" an arrest or not and if they find out you didn't report it, you are toast but that's just me.

Cheers
 
Last edited:
Steve Foley said:
I've never heard of a rescinded arrest.
Click to expand...

Here we go again. I pleaded No Contest to a parking in a handicapped zone even though I have a placard but did not have it in the window and the case was dismissed by the Judge.

Some lawyers said they never heard of such a thing but I certainly heard "Case Dismissed" and not "Guilty No Fine". Walked out with no fine, no court costs, no record.

I am sure someone will enlighten us as to what they think happened "Legally".

Regardless, I still vote to report, but again its just me and what do I know.

Cheers
 
I'm not sure I want to be the one to pay for the lawyer to test this but with the pilots bill of rights now law this will certainly get clearer in the future. I can't imagine a judge in a real court agreeing with the FAA's assertation that arrest is the same as conviction. The PBOR even tells the NTSB to look closer:

(3) REVOCATION OF AIRMAN CERTIFICATES FOR CONTROLLED SUBSTANCE VIOLATIONS- Section 44710(d)(1) of such title is amended by striking ‘but shall be bound by all validly adopted interpretations of laws and regulations the Administrator carries out and of written agency policy guidance available to the public related to sanctions to be imposed under this section unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law’.
​
 
Is there an arrest record on file in the jurisdiction. Simple enough to find out. Then the question answers itself . . . if it was not written down it did not happen.

I cannot imagine an arrest being 'rescinded.' A record can be quashed - a record can be eliminated post facto - but not 'rescinded' as if it did not happen. Moreover - a BAC of 0.068 definitely shows impairment on most tests I've read - meaning he could be convicted.

But = as I said - is there an arrest record?
 
Not every conviction is preceded by an arrest. The Question could be presented differently but I know one attorney that interpreted the and/or portion this way. The answer is yes If you have ever been convicted. So in the case of the OP, no.
 
I'm obviously not a lawyer. That said, if an FAA inspector asked the cop that cuffed him whether or not he was arrested, the answer is gonna be yes, regardless of the paperwork. I would not take a chance on this scenario.
 
Old Geek said:
I'm obviously not a lawyer. That said, if an FAA inspector asked the cop that cuffed him whether or not he was arrested, the answer is gonna be yes, regardless of the paperwork. I would not take a chance on this scenario.
Click to expand...

To which would be followed up with a discovery search of the arrest log and report, which will definitively tell if it's a detention or an arrest.
 
The only way an arrest is rescinded is if you have time machine that unwinds time. Disclose it. One conviction (I know, there was no conviction) is not disqualifying. But lying on the medical, which is how the FAA will treat a negative response to the question, is disqualifying. Disclose your one arrest, and in the comments, be prepared to explain that there was no conviction, and be prepared to show the FAA the court documents. From then on, you can safely check the yes box, and in the comments say "Previously disclosed--no change," and not look back.

If you don't, and you lose your pilot's certificate when they find out, don't say you weren't warned.
 
The medical application, Question 18 asks:

Medical History -- HAVE YOU EVER IN YOUR LIFE BEEN DIAGNOSED WITH, HAD, OR DO YOU PRESENTLY HAVE ANY OF THE FOLLOWING? Answer "yes" or "no" for every condition listed below. In the EXPLANATIONS box below, you may note "PREVIOUSLY REPORTED, NO CHANGE" only if the explanation of the condition was listed on a previous application for an airman medical certfificate and there has been no change in your condition. See Instructions Page

18v (which asks you to check yes or no) states:

History of (1) any arrest(s) and/or conviction(s) involving driving while intoxicated by, while impaired by, or while under the influence of alcohol or a drug; or (2) history of any arrest(s), and/or conviction(s), and/or administrative action(s) involving an offense(s) which resulted in the denial, suspension, cancellation, or revocation of driving privileges or which results in attendance at an educational or rehabilitation program.
​
 
Steve Foley said:
I've never heard of a rescinded arrest.
Click to expand...
Me, neither. What you need to do is hire an aviation attorney familiar with the criminal law in your state (and thus with the concept of a "rescinded arrest" under your state's law) to contact the FAA Regional Counsel and ask the question without revealing your name -- before you submit another 8500-8.
 
Last edited:
jbarrass said:
I'm not sure I want to be the one to pay for the lawyer to test this but with the pilots bill of rights now law this will certainly get clearer in the future. I can't imagine a judge in a real court agreeing with the FAA's assertation that arrest is the same as conviction.
Click to expand...
The FAA has never made any such assertion. In any event, the referenced clause of the PBOR applies only to the FAA's interpretations of its own regulations, and the issue at hand involves instructions for the medical application and 18 USC 1001, not just 14 CFR 61.59. In addition, the NTSB has never, to my knowledge, disagreed with the FAA's interpretation of 61.59.
 
Ron Levy said:
The FAA has never made any such assertion. In any event, the referenced clause of the PBOR applies only to the FAA's interpretations of its own regulations, and the issue at hand involves instructions for the medical application and 18 USC 1001, not just 14 CFR 61.59. In addition, the NTSB has never, to my knowledge, disagreed with the FAA's interpretation of 61.59.
Click to expand...

The referenced clause of the PBOR is not for the FAA it is for the NTSB on appeal. Of course the NTSB never disagreed with the FAA. They were required to defer to the FAA's interpretation of their regulations.

The PBOR changes that, they must now make an independent decision.

Then it goes to one of several courts for final decision.
 
It sounds like you WERE arrested, there just wasn't sufficient evidence to sustain the charge of DUI/DWI and you were "let go" then.
I have to assume that you were given Field Sobriety Tests that you failed and that was the probable cause for the ARREST.
Once processed, the charges couldn't be sustained.
 
jbarrass said:
The referenced clause of the PBOR is not for the FAA it is for the NTSB on appeal. Of course the NTSB never disagreed with the FAA. They were required to defer to the FAA's interpretation of their regulations.

The PBOR changes that, they must now make an independent decision.

Then it goes to one of several courts for final decision.
Click to expand...
This issue is still not covered by the PBOR, as it is not a matter of the FAA's interpretations of its own regulations. The instructions clearly require reporting arrests, and 18 USC 1001 is the criminal code covering false statements on such forms. Also, the NTSB has disagreed with the FAA before, notably in Administrator v. Merrell, but the Court of Appeals overruled the NTSB on the basis of that clause in Section 44703. The NTSB has never shown much reluctance to say when they disagree with the FAA's interpretations even when they were bound to defer to them in their final decision.

In any event, on this question, the OP needs competent legal advice and representation.
 
Ron Levy said:
This issue is still not covered by the PBOR, as it is not a matter of the FAA's interpretations of its own regulations. The instructions clearly require reporting arrests, and 18 USC 1001 is the criminal code covering false statements on such forms. Also, the NTSB has disagreed with the FAA before, notably in Administrator v. Merrell, but the Court of Appeals overruled the NTSB on the basis of that clause in Section 44703. The NTSB has never shown much reluctance to say when they disagree with the FAA's interpretations even when they were bound to defer to them in their final decision.

In any event, on this question, the OP needs competent legal advice and representation.
Click to expand...

Why does FAA care if someone has been arrested for DWI, or any other crime for that matter? It makes sense if someone is arrested and convicted for DWI - that could signify a problem that affects public safety, especially if it occurs more than once. Is it just because it's a bad government form modeled after a typical employment application, or is it a way for them to use the "good character" clause to boot someone that has some number of arrests but no convictions?
 
1) I've not heard of a "rescinded arrest" but that does not mean it does not exist. Every state has different laws and different terminology here in PA we might say that the Charges were withdrawn. Of course it could just be the OP's own lingo.

2) Don't rely on anything that is posted here. Make sure you consult with an aviation attorney who can then in turn consult with your criminal defense attorney. This is important because as Ron said its how the feds interpret what happened not what happened. For example here in PA you can be convicted of a Misdemeanor offense but the Feds will consider it a felony for their purposes. It appears your trying to do the right thing so don't blow it by not consulting with a qualified attorney.
 
Another aimran who had an alcohol related motor vehicle arrest who is now trying to dance on a pin.

I'll put it to you this way: Under admin. law, the Federal Air surgeon has the authority to do what he thinks is proper based on "best advice" and that is not challengeable. The advice to him is, but the current policy is not.

Unless you were "rescinded" before the next month's data tapes went out to FAA (and that means much short 30 days) the data are already in OKC. You don't have to make the 61.15 report (no conviction) but as you were arrested and they pretty certainly know about it, you can ignore the requirement but then you will face Pilot certificate action for falsifying an 8500-8. Not the question DOES NOT SAY, "IS THERE RECORD OF AN ARREST?" It says, alcohol related arrest or conviction..... Yes you had an arrest, and the agency already has it.

Your choice.

If this was your first DUI, you only need the officer's description of your behavior. In this BAC range, your AME will be able to reissue you if you have evidence that you were not convicted, have the officer's description, and papers showing dismissal.

Dance now or dance later. Lie now (stretching the English language) or fess up and move on. If you do not report it on your next 8500-8, it will be attorney to attorney.

If you have a DUI already, you are just hosed. You will cease to be a pilot. Remember, the FAA already has the datatape. If they discover rather than you report, it's not a good outcome.

HIMS AME (one of the 100 who can do Drug and alcohol).
 
Last edited:
bbchien said:
Another airman who had an alcohol related motor vehicle arrest who is now trying to dance on a pin.

I'll put it to you this way: Under admin. law, the Federal Air surgeon has the authority to do what he thinks is proper based on "best advice" and that is not challengeable. The advice to him is, but the current policy is not.

Unless you were "rescinded" before the next month's data tapes went out to FAA (and that means much short 30 days) the data are already in OKC. You don't have to make the 61.15 report (no conviction) but as you were arrested and they pretty certainly know about it, you can ignore the requirement but then you will face Pilot certificate action for falsifying an 8500-8. Not the question DOES NOT SAY, "IS THERE RECORD OF AN ARREST?" It says, alcohol related arrest or conviction..... Yes you had an arrest, and the agency already has it.

Your choice.

If this was your first DUI, you only need the officer's description of your behavior. In this BAC range, your AME will be able to reissue you if you have evidence that you were not convicted, have the officer's description, and papers showing dismissal.

Dance now or dance later. Lie now (stretching the English language) or fess up and move on. If you do not report it on your next 8500-8, it will be attorney to attorney.

If you have a DUI already, you are just hosed. You will cease to be a pilot. Remember, the FAA already has the data tape. If they discover rather than you report, it's not a good outcome.

HIMS AME (one of the 100 who can do Drug and alcohol).
Click to expand...

This is the one answer on this thread that I'd go with.
 
To unreg, this is NOT VERY GRAY AT ALL. See post #27. Randy Babbitt went through this.
 
BurtM said:
Why does FAA care if someone has been arrested for DWI,
Click to expand...
Because the FAA knows from experience that people with a drinking problem are greater risks for aviation accidents, and that often people with a drinking problem get arrested for alcohol-related driving offenses but through legal chicanery manage to avoid having an alcohol-related conviction enter their record -- Randy Babbitt is a good example. The FAA wants to keep people like that out of the cockpit, and they do so by requiring them to report such arrests on their medical application so the FAA can look into their situation and decide whether the arrest was BS or a sign of a serious medical problem (alcohol abuse).
 
BruceC: Thanks for the advise. What is the "datatape"?
I guess the real question is about the NDR. Is that the only method the FAA uses to get info? I requested a copy of my NDR shortly after my arrest. Because I was pulled over in a state that I don't have my license in, the NDR came back as eligible in the other state. It also stated that the FAA received this same information. After talking to the state and the NDR my record is completely clean. I also ran a state background check shortly after the arrest which showed the arrest. I ran it again and it comes back clean. I talked to the security department at the FAA and they said they ran my name and they didn't find anything on my record. I also talked to a AME who said he could issue my medical without deferral but I have read that the FAA can still defer your medical 60 days after its issue.
Thanks for all the help.
 
The NDR only covers license actions (suspensions, etc...). The FAA also gets data from NLETS which will show mere arrests.
 
Unregistered said:
I talked to the security department at the FAA and they said they ran my name and they didn't find anything on my record.
Click to expand...
This is an Aeromedical issue (medical application), not Civil Aviation Security (61.15 report).

I also talked to a AME who said he could issue my medical without deferral but I have read that the FAA can still defer your medical 60 days after its issue.
Click to expand...
There is certainly no legal harm in reporting the arrest. Bruce can tell you about the aeromedical issues if you report it. However, if you fail to report it, and the FAA later finds out that there was an arrest, you face serious legal consequences. Hence, my suggestion to have your attorney contact the FAA Regional Counsel (without your name being involved) before doing anything else. As I said, I've never heard of a "rescinded arrest," and I have no idea how the FAA would view such.
 
I think Bruce and Ron gave good advice. If you've no other incidents, then you can report it, provide the evidence Bruce outlined, and get your medical.

If you do have other incidents, or don't want to report it, then before you go and possibly perjure yourself on the medical application, hire an aviation attorney and have THEM ask the FAA the question.
 
Again, you can't rescind an arrest. It's like rescinding being hit in the face. It happened. You can't undo it. It's not like a conviction, which can be expunged. The question (18v) asks about arrests, not just convictions. Disclose it, or risk having a revocation because you lied on your application when and if they find out.

If they find out, they will issue you an emergency order of revocation stating 1) that you are unfit to hold a private pilot license, and 2) that an emergency exists for immediate revocation, and demanding that you send all your certifcates to them, on penalty of a $1000 per day fine. You can pay an attorney $5,000 to $10,000 to fight it, but you will lose at the end of the day.
 
The take-away is that it really is "one strike, you're out". For this and many other things.
 
> There is certainly no legal harm in reporting the arrest

>> The take-away is that it really is "one strike, you're out".

I disagree a bit. If the OP continues to drink & drive, reporting
now ... gives away his "First DUI is Almost Free" w/CAMI.
 
In most cases to seal the arrest would require some finding of factual innocence. Note that .08 is only the PRIMA FACIE limit above which they do not have to show actual intoxication, you are presumed intoxicated. At least in the states I am familiar with just because you beat the DUI rap won't get the arrest records sealed. Even sealed records are available to the FAA.
 
> Disclose it, or risk having a revocation because you lied

It's the omission/lie/perjury that is 1-strike ... and prosecution for the lying
will be a slam dunk conviction - which will screw-up the rest of your life.
 
Last edited:
Old Thread: Hello . There have been no replies in this thread for 365 days.
Content in this thread may no longer be relevant.
Perhaps it would be better to start a new thread instead.
Back
Top