What if you pass breathalyzer but refuce field sobriety test? And arrested.

Discussion in 'Medical Topics' started by genna, Feb 12, 2021.

  1. genna

    genna Pattern Altitude

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    I'm sure I'm going to regret posting this, but the Boss'(Bruce Springsteen) DUI arrest got me on a quest to figure something out. Yet my googling skills seem to fail me with it. Lots of talk about breathalyzer, but that's not what I'm looking for.

    No, I didn't(and don't) drive drunk or get arrested or was pulled over for anything. Hell, I hardly drive at all now. So this is purely a "what if" question.

    My state and most other states now have implied consent laws. If you refuse breathalyzer test or blood test, you are arrested and charged with penalties that are same as DUI arrest. Moreover FAA views refusal in a harshest terms, so you better take the test. That much is clear. The Boss eventually tested with .02

    What is less clear to me is refusal of the roadside field sobriety test. It is perfectly legal and not included into implied consent to refuse that test. It's my understanding is that you cannot be arrested or face any penalties for that action alone. The Boss failed that test and was arrested based on that.

    So, scenario. A certificated pilot is pulled over for suspicion of DUI. This pilot refuses to take the field sobriety test, but agrees to take the breathalyzer test. He blows below state limit(let's say .05 - limit is .07). Yet he still gets arrested for DUI. Ultimately he gets acquitted for lack of evidence.

    The arrest must be reported to FAA, how would they view it?
     
  2. flyingron

    flyingron Touchdown! Greaser! PoA Supporter

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    First off, get it out of your head that there is a "legal limit." You can be convicted in nearly any state at any alcohol content. The .08 or whatever is merely the per se limit where the state doesn't need to show you were intoxicated, you are assumed to be.

    The AME is obliged to look at ONE thing to make the first decision. If you have a BAC of .15 or more or have a REFUSAL for a blood/breath test it's a deferral and a more arduous path.
    If there was no refusal and any test administered was under .15, then the AME can issue if and only if:

    This was the only alcohol-related event in the airman's lifetime,
    The airman makes a statement that shows no current or previous alcohol abuse, dependence, or other concerning behavior,
    The full court and arrest records are provided.
    The Airman provides a clean ten-year driving record from all states he was licensed,
    The airman received no rehab/treatment,
    There are no other drug offenses in his history,
    and the AME has no other concerns.

    I can't see how an FST refusal makes any difference. The chemical test refusal only comes into play for the over-under .15% which the FSTs won't have any bearing on.

    The FSTs are just a chance to incriminate yourself.
     
  3. genna

    genna Pattern Altitude

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    I'm aware of "pre se limit" status of BAC. Sounds like BAC and history is the only thing FAA cares about.
     
  4. Tarheelpilot

    Tarheelpilot Final Approach PoA Supporter

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    Part of his proposed scenario is being found not guilty so the point of being “guilty” at less than the limit is moot. He already proposed a scenario where that is not the case.
     
  5. denverpilot

    denverpilot Tied Down PoA Supporter

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    Doc Bruce has lengthy discussions with various anonymous folks about a great many other things they care about in these cases, in the medical forum here.

    There's a heavy assumption if you're out doing this sort of thing that you've been drinking enough for a long time that that almost 100% presume you're already well down the path of addiction and alcohol tolerance.

    Interesting readimg if you search the archives.
     
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  6. PeterNSteinmetz

    PeterNSteinmetz En-Route PoA Supporter

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  7. Lindberg

    Lindberg Final Approach

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    Ah, it's more than an assumption. At least in Texas, if you have a BAC of 0.08 or more, you are legally intoxicated whether you're impaired or not. It is indeed the limit at or above which you may not legally drive. So while you can be guilty of DWI below .08, that is the legal limit.

    It's actually more explicit than "Speed Limits," which are just a presumption, but we still call them "Speed Limits."
     
  8. Stewartb

    Stewartb Final Approach

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    .08 may define intoxication but stupid knows no limits.
     
  9. genna

    genna Pattern Altitude

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    until 1999, Montana had no daytime secondary speed limits(hard speed numbers). Only a “waste of natural resources” fine of $5 for driving over 55 when federal “speed limits existed. “Reasonable and prudent”(primary speed limit) was the only legal limit

    Its Supreme Court found it to be unconstitutional in 1998
     
  10. genna

    genna Pattern Altitude

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    i know. I tend to follow these stories. My question was pretty specific on FST refusal and whether FAA takes a dim view on this even if your BAC is well within legal and you were not found guilty of DUI.
     
  11. Tarheelpilot

    Tarheelpilot Final Approach PoA Supporter

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    Welcome to POA where everyone answers the question they assume you’re asking rather than the one you asked.
    While I could read and understand your question I don’t know the answer. I would assume someone in this situation would still be screwed because that’s just how the FAA rolls with alcohol events.
     
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  12. denverpilot

    denverpilot Tied Down PoA Supporter

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    He's had people ask that before.
    I read the question just fine, thanks.
     
  13. eman1200

    eman1200 Touchdown! Greaser! PoA Supporter

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    Bro do you even lift
    alcohol.....it’s not just for breakfast anymore.
     
  14. Clip4

    Clip4 Final Approach

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    No, the arrest does not get reported to the FAA and the pilot might be making a terrible mistake if he does.

    The FAR requires does require the conviction or the cancellation, suspension, or revocation of a license to operate a motor vehicle for a cause related to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug, or while under the influence of alcohol or a drug.

    In most states there is an automatic suspension when the driver fails the chemical test or refuses the chemical test. There is usually no action for being arrested and not failing the test. He is is found not guilty or the charges dropped with a suspension there is nothing to report.
     
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  15. genna

    genna Pattern Altitude

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    the problem is that when you are arrested for dui, the suspension(administrative action)is automatic. Which you have to report.

    edit. At least I’m pretty sure that is the case in my and many other states
     
  16. Clip4

    Clip4 Final Approach

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    No in most states when the suspect does not fail the chemical test.
     
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  17. flyingron

    flyingron Touchdown! Greaser! PoA Supporter

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    Huh? It's required to report it on the medical. The arrest needs to be reported even if no conviction ensued. If you meet all the stuff I put in my earlier post, you can be immediately issued. Otherwise, you are looking at some scrutiny by Joklahoma City.

    That's the rules for the immediate report to the FAA security office.
     
  18. genna

    genna Pattern Altitude

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    I’ll admit that I don’t know. But for my scenario, let’s assume license was suspended at the time of arrest
     
  19. Clip4

    Clip4 Final Approach

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    2. What is the DMV-triggered license suspension?
    When facing a first offense DUI in California, you must also be aware that the California DMV will attempt to have your license suspended due to an admin per se violation (APS).

    Immediately after being arrested on a first time DUI offense, you will be given just ten days in which to request a DMV hearing from the California Department of Motor Vehicles, and therefore, put a temporary hold/stay on the suspension of your license.

    However, if no hearing is requested, the DMV may then be able to automatically proceed with the suspension of your driver’s license.

    Significantly, only individuals arrested for DUI with a BAC of .08 or higher face such an administrative driver’s license suspension. See Vehicle Code 13353.2.2 Hence, if you submitted to a chemical test and the results eventually show a blood alcohol concentration level below .08, the California DMV will NOT suspend your license per an APS violation.

    If your BAC comes back .08 or above, however, you will need to request and prepare for a DMV hearing. While the chances of being successful at a DMV hearing are typically slim, they certainly improve if you are represented at the hearing by an attorney who knows what they are doing.

    If you win your hearing, no administrative license suspension is imposed. If you lose your hearing, the DMV suspends your license for four months. However, the California DMV usually allows defendants to continue driving anywhere during their license suspension if they agree to install an ignition interlock device in their cars. (California Senate Bill 1046 (2018))
     
  20. Clip4

    Clip4 Final Approach

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    18.v. Conviction and/or Administrative Action History. The events to be reported are specifically identified in Item 18.v. of FAA Form 8500-8. If "yes" is checked, the applicant must describe the conviction(s) and/or administrative action(s) in the EXPLANATIONS box. The description must include:
    • The alcohol or drug offense for which the applicant was convicted or the type of administrative action involved (e.g., attendance at an educational or rehabilitation program in lieu of conviction; license denial, suspension, cancellation, or revocation for refusal to be tested; educational safe driving program for multiple speeding convictions; etc.);
    • The name of the state or other jurisdiction involved; and
    • The date of the conviction and/or administrative action
    If there have been no new convictions or administrative actions since the last application, the applicant may enter "PREVIOUSLY REPORTED, NO CHANGE." Convictions and/or administrative actions affecting driving privileges may raise questions about the applicant's fitness for certification and may be cause for disqualification. (See Items 18.n. and 47, page 115).
    LAST UPDATE: April 3, 2006

    18.w. History of nontraffic convictions. The applicant must report any other (nontraffic) convictions (e.g., assault, battery, public intoxication, robbery, etc.). The applicant must name the charge for which convicted and the date of the conviction(s), and copies of court documents (if available). (See Item 47, page 115).

    If you:
    A. We’re not convicted.
    B. Were not subject to an administrative action.
    C. There is no reporting.

    (Granted few will meet the above conditions)
     
  21. PeterNSteinmetz

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    Some more of the history on that. https://missoulian.com/news/state-a...cle_06be4f06-f083-571d-a359-dd1698b56b77.html
     
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  22. genna

    genna Pattern Altitude

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    https://www.duiprocess.com/maryland-dui-laws-penalties/


    “You may still be arrested for driving under the influence in Maryland even if your BAC level is less than .07% based on the officer’s observation of you before the stop and during the stop. If the officer determines that your behavior is consistent with impairment due to alcohol consumption or drugs or you fail any part of the field sobriety tests, you will be arrested for driving under the influence.”


    “Upon being arrested for DUI in Maryland, the arresting officer will confiscate your driver’s license and will issue you a notice of suspension of your driving privileges and issue you a temporary driving permit that is good for 45 days from the date of the notice of suspension. The officer will then forward the confiscated license along with his or her report and the evidence supporting the suspension to the Maryland MVA.”
     
  23. bbchien

    bbchien Touchdown! Greaser!

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    This is so terribly incorrect. If you get arrested but acquitted, you report it on your next medical. read the wording of 18V.

    Please don't continue doing the pilots a dis-service, here.
     
  24. Tarheelpilot

    Tarheelpilot Final Approach PoA Supporter

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    I know three pilots that did not report alcohol related events that were subsequently discovered by the FAA. All three had every certification they held revoked.

    Once arrested just deal with it because there is no such thing as hiding it from the FAA.
     
  25. genna

    genna Pattern Altitude

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    I’m not disputing this fact. FAA website says so here. https://www.faa.gov/about/office_or...sh/ash_programs/investigations/airmen_duidwi/

    This is why I said so in my scenario.

    But I honestly do not see “arrest” mentioned in 18v or the explanation of it on 8500-8. What am I missing?

    as I said earlier, this is not really relevant since where I live, you get suspended immediately. More importantly, for my original question, this is stipulated anyway.

    edit. Never mind. Old form. Answered below
     
    Last edited: Feb 13, 2021
  26. flyingron

    flyingron Touchdown! Greaser! PoA Supporter

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    I don't know where you got that text from but it is not from the current MEDEXPRESS, 8500-8GG or the MedExpress/8500-8 instructions.

    MedExpress reads as follows:

    v. 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 resulted in attendance at an educational or a rehabilitation program.For purposes of this application:
    "Arrest" means being detained or taken into custody by any law enforcement or military authority for any reason related to a driving stop for suspected driving while intoxicated by, while impaired by, or under the influence of drugs or alcohol. List, for each arrest, the place, date, and circumstance (s) of the arrest. "Conviction" means any judgment of guilt based on a jury, court, or military verdict, a plea of guilty, or a plea of nolo contendre/no contest. Examples include, but are not limited to, assault, battery, disorderly conduct, domestic violence, driving under the influence, driving while intoxicated, murder, possession of drugs, public intoxication, reckless driving, etc. If you answer yes, you should report all misdemeanors and felony convictions regardless of the classification of the conviction and regardless of whether the conviction is pending on appeal to another court. List the charge(s) for which you were convicted, the date of the conviction, and the state, federal, military, or foreign court in which you were convicted. If a conviction has been reversed or vacated in a final judgment, state the date of the final judgment and the court that issued the final judgment. If the record of a conviction has been expunged, state the date that the record was expunged and the court that ordered the expunction. List, for each denial, suspension, cancellation, or revocation of your driver's license or driving privileges, the U.S. state, U.S. military base, or foreign country where the action occurred, the specific type of action taken (for example, the driver's license was denied, suspended, cancelled, or revoked, the date each action was taken, and the basis for the action.) Examples of educational or rehabilitation programs include, but are not limited to, anger management program(s), drug or alcohol treatment program(s), safe driving course(s), etc. List the type of educational or rehabilitation program you were required to attend as part of a criminal, civil, or military action, the entity that required you to attend, and the date(s) and place(s) of your attendance.

    w. History of nontraffic conviction(s) (misdemeanors or felonies).
    Arrests must be reported if they have either something to do with driving while intoxicated, impaired, or under the influence, or that resulted in a license action as described.
     
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  27. genna

    genna Pattern Altitude

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    I think he found the same thing that I found when just googled it. Must have been an old form
     
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  28. Tarheelpilot

    Tarheelpilot Final Approach PoA Supporter

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    the doc was replying to an idiotic statement by someone that has no idea what they are talking about. Don’t think he was directly answering your questions.
     
  29. genna

    genna Pattern Altitude

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    yeah. I knew that. I was suddenly confused by this report/not report discussion. Doc and Ron set me straight again
     
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  30. genna

    genna Pattern Altitude

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    would be nice to hear the answer to the original question from doc though :)
     
  31. Kenny Phillips

    Kenny Phillips En-Route

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    I take the easy way out. I don't drink or smoke or ingest any intoxicants of any sort. Life is ... interesting enough.
     
  32. flyingron

    flyingron Touchdown! Greaser! PoA Supporter

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    Apparently not any one that comes from recent history. 8500-8GG (the paper) and the MedExpress (which everybody is pretty much obliged to use) has the exact text I posted above NOT what you posted. It's also quite clear in the instructions for both.

    You lie on your application, you do so at your peril. Arrest records are easy to correlate if some bean counter gets a burr up their ass like they did over the disability issues. Not only will you end up losing your certificates but may face felony charges.
     
  33. Clip4

    Clip4 Final Approach

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    In reading the online version I stand corrected for the medical. No report is required under 61.15.
     
    Last edited: Feb 13, 2021
  34. bflynn

    bflynn Final Approach

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    I looked it up the other day and was confused because I also found an old form. It didn't make sense until I saw the date was 2006.
     
  35. Brad W

    Brad W Cleared for Takeoff

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    I read an article not too long ago written I think by a lawyer that as I recall, and if I recall correctly the gist of the recommendation was to refuse road site tests because the equipment carted around in a trunk isn't exactly controlled/laboratory quality..... I'm sure it was much more nuanced and dependant on lots of things that I can't recall....
     
  36. genna

    genna Pattern Altitude

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    Sounds like you mean breathalyzer. that may or may not be a good advice for regular people depending on your state and intoxication level. But it’s a terrible advice if you care about your medical certificate. Not submitting to breathalyzer will be viewed by FAA same as blowing .15+. Meaning they will treat you in the harshest terms. You will have your med certificate revoked and will have to go through major and expensive hoops to get it back
     
  37. flyingron

    flyingron Touchdown! Greaser! PoA Supporter

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    You're referring to the PBT (portable breath test). Not only is it inaccurate but in just about every state (if you're over 21), it's not obligatory. In many, it's not an admissible test for the per se limit. It can be used to bolster probable cause to arrest you and compel a real breath blood test.

    That's not what is being discussed here. The FSTs are things like walking a line, touching your nose, tracking the officer's finger for the HGN, etc...
    In addition to being used for probable cause, those ARE admissible (the state will claim the officer is an expert witness) signs of your intoxication. All these are is a chance for you to incriminate yourself.

    As analyzed, refusing FSTs aren't criteria in the FAA's arrest analysis. Refusing a blood/breath test is.
     
  38. POA_Newbie

    POA_Newbie Filing Flight Plan

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    I don't drink but what I initially learned about the DUI arrest and conviction process was so concerning I decided to do some research.

    It generally seems that if you get pulled over for suspicion of DUI there is literally nothing you can do to simply drive away after the interaction.

    What I've seen in my reading is the Field Sobriety Tests are difficult to pass even when sober. It is worth researching if you don't believe me. I can't say with 100 percent certainty but I think in many states the FST and the portable roadside breathalyzer tests are voluntary. The officer won't tell you that. And if you ask the officer they will likely lie to you and say they are not voluntary. Officers are legally allowed to lie to you. It is simply too risky to do these tests.

    I found this quote interesting in regards to the FSTs....

    "The person giving the evaluation is not medically trained. He or she only must be high school educated (diploma or GED). College-educated registered nurses, with substantial medical training, are not trusted in the medical community to give this type of neurological deficit lateral gaze nystagmus test. Hence, why in the world would you let an untrained individual use it and gather questionable “evidence” with which to later convict you of a crime?"

    https://www.georgiacriminaldefense.com/blog/dui-dwi-10-reasons-not-submit-to-a-field-sobriety-test/

    If you get pulled over for suspicion of DUI it is best to simply say I don't answer questions and I am using my 5th amendment right to remain silent. Politely refuse the FST. Politely refuse the portable roadside breathalyzer. This course of action is going to lead to an arrest and you will be taken to the station or hospital for chemical testing and your car will be impounded. Of course the chemical tests can't be refused without massive consequences to your medical and driver's license. Obviously, this process is not good, stressful, and you're going to need a lawyer. But realize it is highly unlikely that once you are pulled over for suspicion of DUI you will be free to go at any point of the interaction.

    If you have some time search YouTube for falsely accused dui. It is unsettling to say the least. This is also a good read on the subject. https://jmurphyfirm.com/stopped-for-dui/
     
    Last edited: Jun 29, 2021
  39. steingar

    steingar Taxi to Parking

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    I hope no one reading this ever submits to a field sobriety test. First, you don't have to. No LEO can compel you incriminate yourself, it's in the Constitution and everything. Not only are they difficult to "pass", but you have now put yourself in the officer's mercy. If he or she decides for whatever reason that you appear intoxicated, that's evidence that can be used against you. No way.
     
    Last edited: Jun 30, 2021
  40. Kenny Phillips

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    All well and good, but in my state, you will find yourself without a driver's license.
    Best thing: just don't drink, not even one, and drive. Sooooooooooooooooooo easy. And if it's not easy, you have a problem.