PBOR and the 5th A. I think there is some gray area in the understanding and/or the application of the PBOR, and enforcement based on notification. The wording requirement says; 'shall provide timely, written notification to an individual...'. The individual needs to have written notification of an investigation. However, if the FAA simply calls you up and starts asking questions - has an investigation begun, and if yes, anything said during this non-custodial verbal exchange qualify for evidence? The exception for the individual in section B says that '
an oral or written response to a Letter of Investigation from the Administrator is not required;'
Well, I see some gray area there. On the good news front, a recent case seems to be on the side of the pilot and restricted the powers of the FAA during an investigation:
An NTSB administrative law judge dismissed an FAA enforcement case, ruling that the agency committed an "intentional and egregious" violation of the pilot's rights.
www.aopa.org
In this case, the court seems to have extended the wording of the PBOR from 'written' report of investigation to 'verbal'. The pilot was not notified by writing of the investigation, and when called he apparently offered up evidence of wrong doing. But - it was found to be unusable at court.
Next up is remaining silent. Even though section B says that an oral response is not required, well - that seems to fly in the face of Salinas v Texas, where a defendant did not specifically verbally invoke his right to silence, and because it was non-custodial(as is the FAA investigation), he was not afforded the Miranda exception to simply remaining silent. One must verbally or written invoke such right, or risk your failure to state your 5th A right that anything said or written is now 'fair game' for prosecution.
To extend this even further, there's also the issue of lying during questioning. So, the 'non-denial, denial' comes into play. I'm sure most know that it's an offense(of its own) to lie to LEO. However, that same law does not apply to administrative cases such as with the FAA. Without going all down that rat hole, I would say to stick with the non-denial, denial method.
In conclusion, I guess here's the non-legal advice I'm going to employ; The FAA is on the phone with me and they say; 'Hey Barrett, was that you flying N12345 over the Brimstone Baptist church on Sunday at 50' AGL?'. ME; 'If you are from the FAA, I do my best to operate legally at all times, and will not answer any questions until represented. Have a nice day.' YMMV
karlenepetitt.com
