Monday, June 04, 2012

Pilot's Conviction for Flying while Drunk Affirmed

U.S. v. Cope, 2012 WL 1511777 (5/1/12) (Col.) (Published) - The defendant, a pilot, and his co-pilot flew a United Express flight from Austin to Denver without incident. The co-pilot noticed the defendant had a bit of a puffy face and his eyes were a little red. After the flight, the co-pilot noticed the defendant smelled of alcohol. The co-pilot told the defendant if he had any problem taking a breathalyzer, he should call in sick. The defendant said: "I guess I better call off sick then." But he ended up being breathalyzed anyway, recording a .094 and 20 minutes later a .084. At the Denver airport, the defendant told the co-pilot he drank alcohol on a few occasions the night before. The defendant exhibited no outward signs of impairment. Venue was proper in Denver because venue for flying under the influence of alcohol in interstate commerce lies in any state in which commerce moves. It was not error for the d. ct. to rely on the breathalyzer results. The government expert explained the high elimination rate evidenced by the results could be the result of the defendant being an experienced drinker. "Under the influence" means the person has a less than normal ability for clarity and control. Outward signs of intoxication are not necessary to prove a defendant is under the influence. Although 18 U.S.C. ยง 343 presumes a BAC over .10 establishes under the influence, a lower score does not establish innocence. Overall there was sufficient evidence to prove guilt beyond a reasonable doubt. The 10th says it was okay for it to consider the defendant's statements to the co-pilot, even though the d.ct., who was the fact-finder, said it didn't. The d. ct. did not rely on FAA regulations because, although it mentioned the regs in its findings of facts, it didn't mention the regs in its conclusions of law. And, anyway, even if it would be error to consider the regs, the error would have been harmless because there was sufficient evidence of guilt.